Wisconsin Lawyer
Vol. 82, No. 12, December 2009

The age of electronic discovery is upon us. The vast majority of documents created in the United States are never reduced to pieces of paper. Billions of emails are exchanged daily. Approximately 92 percent of all data is currently stored in electronic form.¹ According to Wisconsin Supreme Court Chief Justice Shirley Abrahamson, “Most information is kept in digital form, and discovery, preservation and production of electronic information is one of the leading issues facing not only corporate America, but also government.”² In recognition of this reality, the drafters of the Federal Rules of Civil Procedure have enacted amendments to the federal discovery rules that address issues concerning the discovery of electronically stored information.³

Wisconsin has followed suit. On April 23, 2009, the Evidence and Civil Procedure Committee of the Wisconsin Judicial Council proposed amendments to Wisconsin’s discovery rules that specifically pertain to electronic discovery. On Jan. 21, 2010, the Wisconsin Supreme Court will hold a public hearing regarding the proposed amendments, with the court’s conference in the matter to immediately follow. The amendments are adapted from the Uniform Rules on the Discovery of Electronically Stored Information and the 2006 amendments to the Federal Rules of Civil Procedure. The new rules are “intended to provide consistency and predictability in the discovery of electronically stored information.” In addition, the rules “are intended to reduce the economic burden that can result from the discovery involving the enormous volume of electronically stored information.”⁴

Overview of the Wisconsin Amendments

In summary form, the amendments to the Wisconsin Rules of Civil Procedure are designed to:

1. encourage courts to be more active in managing electronic discovery and production;
2. allow for the production of business records in electronic form;
3. place the burden on the requesting party to specify the form in which electronic discovery is to be produced;
4. impose a safe harbor for a party who has lost electronically stored information as a result of the routine, good-faith operation of an electronic information system; and
5. protect third parties from unreasonable burdens of responding to subpoenas that request electronically stored information.

Early Attention to Electronically Stored Information

The first substantive change relates to calendar practice. The proposed amendment to Wis. Stat. section 802.10 requires the parties to address the need for discovery of electronically stored information at the beginning of the case. This inclusion is intended to “alert the court to the possible need to address the handling of discovery of electronically stored information in the litigation if such discovery is expected to occur.”⁵ The amendment furthers this policy by inviting the court to address any issues pertaining to electronic discovery that will facilitate the “just, speedy and inexpensive disposition of the action.”⁶ This language is designed to enlist the court’s early involvement and management of electronic discovery and production.

Responding to Interrogatories

The proposed amendment to Wis. Stat. section 804.08(3) allows a party to produce business records in electronic form when responding to an interrogatory pursuant to the section and allows a responding party to substitute access to documents or electronically stored information for an answer to an interrogatory, provided that the burden of deriving the answer will be substantially the same for either party. In the commentary to the amendments, the committee cautions that such access may require the responding party to provide some combination of technical support, information on application software, or other assistance, including access to the party’s electronic information system.⁷ This amendment is designed to reduce the cost of responding to an interrogatory when the interrogating party is in the same position to derive the answer from the electronically stored information as is the responding party.

Form of Production of Electronically Stored Information

A proposed amendment to Wis. Stat. section 804.09 clarifies the format for the production of electronically stored information. Section 804.09 generally relates to the production of documents during civil discovery. Unlike paper documents or other tangible items, electronically stored information can exist in a variety of formats. Common practice has been to reduce electronic information to paper format for purposes of discovery. That process, however, can remove crucial data inherent in electronically stored information and may limit the ability to efficiently search and review such information.

Because electronically stored information may exist in various forms, the amendment to section 804.09 provides that the requesting party may specify the “forms in which electronically stored information is to be produced.”⁸ In response, the producing party may “state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form, or if no form was specified in a request, the party shall state the form or forms it intends to use.”⁹ Notably, if the form of production is not specified by agreement or a court order, “the responding party must produce electronically stored information either in a form or forms in which it is ordinarily maintained or in a reasonably usable format.”¹⁰

A party need only produce data in one format based on this procedure. The overall purpose of these related provisions is to encourage the parties to identify and agree on the format in which electronically discovered information is to be produced and to provide a default mechanism if the parties fail to reach an agreement regarding format.

Additional proposed modifications to section 804.09 clarify that the scope of evidence that can be obtained through a document request includes “electronically stored information, sound recordings and images stored in any medium from which information can be obtained electronically either directly or, if necessary, after translation by the responding party into a reasonably usable format.”¹¹ This amendment confirms that electronically stored information is treated the same as paper documentation for discovery purposes.

Limitation on Sanctions

A proposed new subsection, section 804.12(4m), creates a safe harbor for information lost or destroyed as a result of “routine, good faith operation” of a computer system.¹² The committee notes explain that routine operation includes loss or destruction that occurs “without the operator’s specific direction or awareness.”¹³ Attorneys should be cautioned that this safe-harbor provision only establishes a limitation on sanctions pursuant to the Wisconsin Rules of Civil Procedure and does not prevent the imposition of sanctions pursuant to other sources, such as the rules of professional responsibility. Furthermore, the good-faith requirement of this rule may require the intervention or suspension of a computer system if such electronically stored information is subject to preservation obligations.

Finally, the proposed amendments change the process for responding to a subpoena. They reduce the burden on the responding party by permitting the party to require the requesting party to conduct an inspection or sampling of the evidence. The responding party does not bear the burden of producing electronically stored information when it would be burdensome or costly to do so. This policy is carried forward throughout the proposed rule, which makes it clear that a party or an attorney “responsible for issuing and serving a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.”¹⁴

The proposed amendment also provides additional protection to a party that is subject to a subpoena, allowing the responding party to produce electronically stored information in a “form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”¹⁵

Practical Implications of the Rule Changes

The proposed amendments to the Wisconsin Rules of Civil Procedure are much different than the 2006 amendments to the Federal Rules of Civil Procedure. While the Wisconsin rules encourage litigants and courts to address issues surrounding electronically stored information early in the proceeding, the proposed amendments do not specifically address several issues that are captured by the 2006 amendments to the Federal Rules of Civil Procedure. These issues are identified below.

Early Attention to Discovery Issues

Unlike the Federal Rules of Civil Procedure, the Wisconsin rules do not require the parties to meet and confer regarding electronic discovery before or after a scheduling or pretrial conference. Furthermore, the Wisconsin rules do not follow Uniform Rule 3,¹⁶ which would have created a meet-and-confer obligation similar to rule 26(f) of the federal rules. Even though these provisions are not included in the amendments, counsel should initiate discussions regarding the discovery of electronic evidence early in the proceeding. Electronically stored information tends to be highly pervasive and highly volatile, thus requiring such early identification. Attorneys should:

1. consult with their clients to identify sources of potentially relevant electronically stored information; 
2. initiate a litigation hold to prevent the loss or modification of potentially relevant electronically stored information;
3. consider actively preserving potentially relevant electronically stored information;
4. seek to identify opposing parties’ sources of potentially relevant electronically stored information; and
5. consider seeking a preservation order that defines the parties’ responsibilities with respect to preserving electronically stored information.

These issues often are not addressed unless the parties discuss preservation during the meet-and-
confer process.

Caution When Selecting Form of Production

The proposed amendments allow the requesting party to select the form of production. It is vital that, before requesting a format, an attorney fully understand the type of data that is being requested. Depending on the nature of the action, relevant data (including metadata) may exist in forms outside of the four corners of the electronic document. For example, in a case involving document manipulation or fraud, a paper or TIFF copy of an electronic document may be insufficient to determine its authenticity. Moreover, paper copies of electronic documents often will not include crucial metadata, including the substance of prior drafts of the document, that often is relevant and discoverable.

It also is important to weigh the burden of reviewing data in the form requested. Most attorneys are not in a position to review “natively” produced documents – documents that are saved in their original format – in an efficient and cost-effective manner. Therefore, while a request for native-document production may result in the purest form of electronically stored information, it might not be the best form to request in all situations.

Limitations on the Scope of Discovery

Cost is one of the most important issues in producing electronically stored information. It can be very expensive to produce large volumes of electronically stored information. In some situations, electronically stored information is inaccessible or stored in technology that is obsolete.

The proposed new rules do not provide guidance on cost-shifting or producing inaccessible data. Unlike the federal rules, which provide specific measurement tools for the court to follow in deciding who bears the cost of producing electronically stored information, the Wisconsin rules revert to the good-cause standard set forth in rule 804.01(3), which governs the entry of protective orders. Ultimately, courts will be asked to decide, on a case-by-case basis, whether the production of electronically stored information constitutes an undue burden or expense without engaging in the more rigorous analysis set forth in rule 26(b)(3) of the federal rules.

Limitation on Sanctions

Section 804.12(5) of the Wisconsin Statutes is almost identical to rule 37(e) of the federal rules. It provides a safe harbor from sanctions in situations in which data is lost as a result of the good-faith operation of a computer system. This is a very important provision that should encourage businesses and governmental entities to implement a document retention policy that is consistently enforced. The proposed rules reward a party who elects this option, because the rules specifically provide a safe harbor for a party that destroys electronically stored information through the good-faith use of an electronic information system, such as a document retention policy. Under these provisions, a party cannot be sanctioned for destroying documents pursuant to a document retention policy that is consistently enforced, provided that the destruction does not occur after litigation is reasonably foreseeable. Otherwise, the producing party may be subject to sanctions for spoliation of evidence.

Conclusion

The proposed new amendments to the Wisconsin Rules of Civil Procedure recognize the significance of electronically stored information in the discovery process. These amendments encourage early participation by the court and the parties in addressing discovery issues pertaining to electronically stored information, including agreements regarding the form of production and the accompanying costs. The amendments also provide useful protection for parties who destroy electronically stored information through a document retention policy. In total, the proposed new rules provide necessary guidance in the discovery of electronically stored information.

Endnotes

Wisconsin Lawyer