Letter to the Editor: Electronic Discovery in Wisconsin

WDC Journal Edition: Winter 2009
By: John C. Mitby and Timothy Edwards, LLM, SJD, Axley Brynelson, LLP

We write to comment on the proposed amendments to the Wisconsin Rules of Civil Procedure as they pertain to electronic discovery. These comments are meant to provide constructive feedback and to generate discussion as the proposed rules are being considered. The proposed amendment can be found at http://www.wicourts.gov/supreme/docs/0901petition.pdf.

In federal court, the handling of discovery is somewhat unique in that the federal judges often times rely on the magistrate; plus there is consistency within the court given that only a few judges are involved in any particular district. In our view, this is why it is all the more important for Wisconsin to have e-discovery rules that are fair, cost effective and workable for all litigants; especially because there is no magistrate and there are a large number of circuit court judges. The proposed rules (the "Rules") are purportedly designed to improve consistency and predictability in the discovery of electronically stored information ("ESI") while reducing the economic burden on litigants who are required to produce large amounts of ESI. While the Rules advance these goals to some extent, they also present a number of missed opportunities.
First, the rules do not track the amendments to the Federal Rules of Civil Procedure pertaining to electronic discovery. While some of the new provisions are similar to their federal counterparts, there are many important differences. Following the amendments to the Federal Rules, there has been a growing body of federal law that is quickly developing regarding ESI. The vast majority of that law is centered around the Federal Rules of Civil Procedure, which were the by-product of careful study and drafting. If Wisconsin tracked the federal rules (as it does regularly), it would benefit considerably from the case law that is developing in the federal system. By choosing to step away from the Federal Rules, the committee has provided the judiciary with considerable control over the e-discovery process. In our judgment, inconsistency from circuit court to circuit court will result from this approach and reviewing courts will be routinely called into fill the gaps.

The proposed changes to Wisconsin Statutes ยง 802.10(3) (pertaining to scheduling and planning) are also unlikely to promote consistency and predictably in the rules. Under the Rules, the court is "encouraged" to get involved in e-discovery issues early in the litigation. Unfortunately, the Rules do not require the parties to meet and confer regarding ESI, and the court is given very little guidance about how to manage e-discovery early (or for that matter, throughout) the litigation.

One of the single most important aspect of the Federal Rules is the requirement to meet and confer. E-discovery by its vary nature is technical in nature so an early meeting to confer often helps tremendously when the parties have talked through issues surrounding electronic discovery. We frankly do not see Wisconsin circuit courts getting involved early (normal discovery is not one of their favorite subjects); and the circuit court will be required to address these issues on an ad hoc basis. As a result, litigants can expect that judges will take varied approaches to issues concerning ESI. This could be avoided through rule-making that requires the parties to meet and confer to address ESI, and further requiring the court to enter appropriate orders based on the results of the parties' advance planning. The appropriate orders are important to the promotion of justice. This is a fundamental feature of the Federal Rules, and it works.

The proposed changes to the rules do not include a claw back provision for the recovery of privileged documents that are inadvertently produced. There is no explanation for this omission, other than the council's belief that this issue is more properly addressed under the rules of evidence. The cost of e-discovery increases significantly in the absence of claw back provisions, as the producing party is force to conduct a more exacting privilege review. Given the volume of ESI that can be involved in a given case, claw back procedures insure efficiency in the production process. The claw back is also one of those procedures that is cost effective for the clients; the clients are the ones that pay for discovery and there is no reason to have them pay extra just because Wisconsin does not adopt a claw back procedure.

We also believe that there should be a provision for the circuit court to be allowed to appoint a magistrate to help the court in complex e-discovery issues. We understand that some circuit court judges feel that they have the power to do so already but it should be stated in the rules, including the under what circumstances and maybe who pays. If parties knows that they may have to pay for a magistrate this will make litigants more likely to resolve the problems without out side assistance. This is also precisely the function that magistrates often time perform for a federal judge in federal e-discovery. The simple problem is that Judges just do not have time to deal with complex e-discovery matters.

There are a few final issues raised by the language chose in the rules. For example, the "safe harbor" provision applies to the "routine operation of an electronic information system." This is a vague term whose meaning will necessarily be decided by the courts. The council's definition of ESI is also much different than the Federal Rules, without explanation. Finally, the issue of spoliation is wide open, as the rules do not codify the point in time when a litigation hold should be issued or an "electronic information system" must be suspended to preserve potentially relevant evidence. These issues should be addressed in the rules or the accompanying comments.