State Rules: Pennsylvania
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Vince Carnevale, Esq., PMP, Associate at Milberg Coleman Bryson Phillips Grossman
Over 20 years of experience in all aspects of Electronic Discovery working on cases including Bankruptcy, Mass Tort Class Action Pharmaceutical, Antitrust, Securities, Commercial and Employment Law. Draft expert reports and appear in State and Federal court to support declarations. Lead ESI project manager for largest Mass Tort Class Action Pharmaceutical litigations in the country. Registered Foreign Lawyer (SRA).
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Chapter 4000. Depositions and Discovery: https://www.pacodeandbulletin.gov/secure/pacode/data/231/chapter4000/231_4000.pdf
Specific rules with ESI content in Pennsylvania
Pennsylvania Rules of Civil Procedure: Chapter 4000. Depositions and Discovery
Rule 4009.1 Production of Documents and Things. General Provisions
Rule 4009.11 Requests Upon a Party for Production of Documents and Things
Rule 4009.12 Answer to Request Upon a Party or Production of Documents and Things
Rule 4009.21 Subpoena Upon a Person Not a Party for Production of Documents and Things. Prior Notice. Objections
Rule 4009.23 Certificate of Compliance by a Person Not a Party. Notice of Documents or Things Received
Rule 4011 Limitation of Scope of Discovery [and Deposition]
Local rules in Pennsylvania district court
- Electronic Discovery Information – https://www.pawd.uscourts.gov/ed-information
- ED Special Masters: https://www.pawd.uscourts.gov/ed-program-information
- Checklist for Rule 26(f) Meet and Confer Regarding Electronically Stored Information (“ESI”)
- [Template and Expectations for] Joint Report of Rule 26(f) Meeting and Proposed Discovery Plan
- General Guidelines Regarding Discovery
- Initial Pretrial Conference Scheduling and Discovery Policy
Article: 15 June 2012 Reed Smith. Pennsylvania Supreme Court Adopts New E-Discovery Amendments to Pennsylvania Rules: Focus on Proportionality
Pennsylvania amended the rules related to discovery of ESI in 2012. The goals of the amendments were to focus on proportionality, cooperation and avoidance of eDiscovery complexities.
Meet and Confer: The meet-and-confer requirement of Federal Rule of Civil Procedure (FRCP) Rule 26(f) was rejected in the Pennsylvania amendments. Commentary from the rules committee reasoned that those conferences force parties to confront issues early on that may not even emerge.
Safe Harbor: The amended Pennsylvania rules are silent regarding the safe harbor outlined in FRCP 37(e) which discourages sanctions when reasonable steps were taken to preserve ESI, including assessing whether, among other things, the loss of ESI occurred “as a result of the routine, good-faith operation of an electronic information system”. Commentary from the rules committee indicated that a similar state rule is unnecessary, because routine good-faith actions should not expose parties to sanctions in any event.
Production Format: The Pennsylvania and Federal rules are substantially similar concerning the production format of Electronically Stored Information. Requesting parties may specify the format in which ESI is produced in both rules – 17 Pa. Code § 4009.1 (b) and FRCP 34(b)(2)(D). Pennsylvania specifically added ESI as a category of data in the 2006 amendments.
Scope of ESI – Proportionality: The Pennsylvania rules and FRCP 26 (b)(1) and FRCP (b)(2)(B), both focus on proportionality to evaluate scope and delineate similar factors to assess ESI. The Official Note to Pennsylvania Rule 4009.11 states: “A request seeking electronically stored information should be as specific as possible. Limitations as to time and scope are favored, as are agreements between the parties on production formats and other issues.” The factors to assess proportionality are detailed in the Explanatory Comment to Pennsylvania Rule 4011 – see “B. Proportionality Standard” – PENNSYLVANIA BULLETIN, VOL. 42, NO. 25, JUNE 23, 2012, Pages 3575 – 3576.
*Comments from PA rule amendments [ 231 PA. CODE CH. 4000 ] (see PDF pages 24 – 26): https://www.pacodeandbulletin.gov/secure/pabulletin/data/vol42/42-25/42-25.pdf
Federal Rules of Civil Procedure:
Cornell Legal Information Institute FRCP:
Ediscovery APP: https://e-discoveryapp.com/promo/E-Discovery