State Rules: West Virginia

EDRM work product is not legal advice and does not reflect the opinions or positions of the Advisory Council, Project Trustees or Individual Contributors.

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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West Virginia Rules

Specific rules with ESI content in West Virginia

Key sections:

Local rules in West Virginia district court

Northern District:  

Key sections:

  • Page 152:
    Appendix L.R. Civ. P. 26.06A – CHECKLIST
    United States District Court for the Northern District of West Virginia
  • Page 155:
    Appendix L.R. Civ. P. 26.06B – GUIDELINES
    United States District Court for the Northern District of West Virginia
  • Page 158:
    Appendix L.R. Civ. P. 26.06C – MODEL ORDER
    United States District Court Northern District of West Virginia

Southern District:

Practice Pointers:

Discovery Scope:  West Virginia Rule 26(b)(1) and Federal Rule of Civil Procedure (FRCP) 26(b)(1) are substantially similar, however the West Virginia rule is silent concerning proportionality.  FRCP 26(b)(1) specifically lists proportionality as a factor to consider when assessing scope.  Also, the West Virginia rules have no reference to “Electronically Stored Information” compared to FRCP 26(b)(2)(B), which addresses “Specific Limitations on Electronically Stored Information”.

Meet and Confer:  The West Virginia rules do not require a meet and confer conference, however if one is scheduled, a specific timing requirement is not mandated – see West Virginia Rule 26(f) “Discovery conference. – At any time after commencement of an action the court may direct the attorneys for the parties to appear before it personally or by telephone for a conference on the subject of discovery….”  Subject to a few exemptions, FRCP 26(f)(1), requires a meet and confer conference and specifies a time frame; “Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).”

Form of Production:  The West Virginia rules do not mention “form of production” nor reference “electronically stored information”.  The Federal rules provide guidance on form of production, specifically, FRCP 34(b)(E)(ii), which states: “If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms”; and also, FRCP34(b)(E)(iii) which states: “A party need not produce the same electronically stored information in more than one form.”

Safe Harbor – Rule 37:  West Virginia Rule 37 does not mention “preservation” nor “electronically stored information” as opposed to FRCP Rule 37(e) which specifically addresses a “Failure to Preserve Electronically Stored Information”.  FRCP 37(e) provides for curative measures to address a failure to preserve ESI along with factors to consider if a safe harbor could apply such as determining whether reasonable steps were taken to preserve the data.