The Pennsylvania Supreme Court will probably soon adopt new discovery and disclosure rules pertaining to Electronically Stored Information. The Court has been presented with Proposed Recommendation No. 249 which modified Civil Procedure Rules 4009.1, 4009.11, 4009.12, 4009.21, 4009.23, and 4011 Governing Discovery of Electronically Stored Information with Explanatory Comment. The Rule explains:
Though the term “electronically stored information” is used in these rules, there is no intent to incorporate the federal jurisprudence surrounding the discovery of electronically stored information. The treatment of such issues is to be determined by traditional principles of proportionality under Pennsylvania law as discussed in further detail below.
Sitting in Denver, I’m in no position to guess how the Pennsylvania Supreme Court determines “traditional principles of proportionality.” But, when changes like this come, the defense bar should take advantage by understanding the rule change and how it can be used to aid in the representation of the client. Sometimes, my best lessons in life come from living with a growing teenager. The story, briefly, my daughter was told no e-mails, texts, etc. She disobeyed the edict and trashed her communications thinking they would not be discovered. Not very savy, but the retrieval of information from the recycle bin was simple. She has now lost the ability for electronic communications for an “unfair” period of time.
For the defense litigator, the story may have two lessons. Foremost, you do not want your client to trash information that could be linked to the litigation where you are retained. A reasonable computer forensic search will uncover the information and, if lost or corrupted, the spoliation instruction is damaging. On the other hand, understanding that your opponent probably does not appreciate the rule change gives you an advantage. You will know how you want to receive the information, you will be given the choice to “specify the format in which it is to be produced and a responding party or person not a party may object. If no format is specified by the requesting party, electronically stored information may be produced in the form in which it is ordinarily maintained or in a reasonably usable form.” Rule 4009.1(b). This gives you an advantage. Use it to the benefit of the client’s case.
These lessons, come, in part, from Judge Scheindlin’s sequel to Zubulake in Pension Committee of the Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 685 F. Supp. 2d 456, 463 (S.D.N.Y. 2010) where she made clear that the duty to preserve electronically stored information is practically absolute. A litigation lawyer, must know that it is “abundantly clear that the duty to preserve means what it says and that a failure to preserve records—paper or electronic—and to search in the right places for those records, will inevitably result in the spoliation of evidence.
This case does not present any egregious examples of litigants purposefully destroying evidence. This is a case where plaintiffs failed to timely institute written litigation holds and engaged in careless and indifferent collection efforts after the duty to preserve arose. As a result, there can be little doubt that some documents were lost or destroyed.
The Pennsylvania litigation defense lawyer (and the rest of the DRIers) must now take the lead and upon retention and advise the client to suspend routine retention and destruction policies and warn the that the client must also preserve any information that could be considered evidence in the case. Despite its efforts to distance itself from the federal court mandates, the Pennsylvania court now imposes on litigation attorneys, an affirmative obligation to gain a decent understanding of the client’s computer systems. The same as in the federal arena. It is no longer sufficient to suggest that litigation counsel be knowledgeable about their clients’ active and stored electronic data systems. Upon the notice of litigation, the client must be told to immediately prepare an electronic storage log of the information related to the litigation. This list is not inclusive but includes correspondence, motions, pleadings, original documents in pdf form, emails, zip drives, cd’s, or anything that could be remotely linked to storage of electronic information.
Be careful out there.