Welcome Wisconsin! E-Discovery Amendments Become Effective January 1, 2011

On January 1, 2011, the e-discovery amendments to Wisconsin’s rules of civil procedure become effective.  The amendments, affecting Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07, address for the first time the discovery of electronically stored information (“ESI”).  Among other things, the amendments address issues including the parties’ obligation to meet and confer, the format of production, and safe harbor from sanctions when ESI is lost as the result of the routine, good-faith operation of an electronic system.

As previously discussed on this blog, the adoption of a mandatory meet and confer provision has drawn some criticism.  The relevant section, § 804.01(m), states that no party may serve a request for or produce electronic discovery until after the parties meet and confer regarding a number of specified issues, including the scope of electronic discovery, preservation, the form or forms of production, the costs of the proposed discovery and the “extent to which such discovery shall be limited, if at all”, among other things.  If a party fails or refuses to confer as required, relief may be sought from the court.

The relevant orders of the Wisconsin Supreme Court are available here and here.

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