Wisconsin’s Proposed E-Discovery Rules

WDC Journal Edition: Winter 2009
By: Michael J. Cerjak


The process of e-discovery starts when a lawsuit is commenced and its parties demand to see all sorts of information from one another in their search for relevant nuggets.[1] Each side must then identify the network file servers, e-mail servers, hard drives, back-up tapes, smart-phones, memory sticks, and other data-storage devices that could contain information relevant to the suit.[2] Next, the parties must search those devices and index, review, and produce the results of their search.[3] And, if one party uses a third party to manage or store its digital information, an opposing party may also need to get information from the third party.[4] The e-discovery process requires litigants to preserve, request, and produce any electronically stored information relevant to a suit and is often cumbersome.

Though the e-discovery process poses many of the same problems as conventional discovery, the process also presents unique problems.[5] Significantly more information is stored electronically than in paper documents, and digital files are often stored in more locations and in innumerably more forms than paper documents.[6] Digital files are also more volatile than paper documents,[7] and they innately contain non-traditional types of data—including metadata,[8] system data,[9] and deleted data[10]—that conventional documents do not. And, while some digital files are readily accessible, many are not.[11] Technical experts may therefore be necessary to search through and retrieve electronically stored information, so the costs of locating, reviewing, and preparing electronic information for production can be much greater than in conventional discovery proceedings.[12] Due to these complexities, disputes often arise over the scope of e-discovery, the form of production, and the protection of privileged information.[13]

Because of the unique problems that e-discovery presents, federal and state courts have adopted procedural rules to govern the process.[14] The Federal Rules of Civil Procedure were amended in 2006 to address e-discovery, and since those rules were amended, 23 states have adopted e-discovery rules that address or reflect the procedural changes made to the federal rules.[15] Most other states have considered or are considering adopting similar rules.[16]

Wisconsin is one state currently considering amending its procedural rules to address the issues presented by e-discovery. The process began in April 2009, when the Wisconsin Judicial Council petitioned the Wisconsin Supreme Court to adopt rules to govern e-discovery in Wisconsin courts.[17] In its petition, the Council proposes that the Court amend five of Wisconsin’s civil-procedure statutes—Wis. Stats. §§ 802.10 (circuit-court scheduling and planning), 804.08 (interrogatories), 804.09 (production of documents), 804.12 (discovery sanctions), and 805.07 (subpoena)[18]—which, if amended, the Council believes would increase judicial efficiency and decrease the economic burdens of e-discovery on litigants and subpoenaed third parties.[19] The Court has not yet adopted the proposed amendments and will be accepting comments at a public hearing on January 21, 2010.

This article is written in conjunction with another article in this Journal to comment on the proposed rules. While the companion article, authored by Attorneys John C. Mitby and Timothy Edwards, analyzes whether the proposed amendments will further their goals and offers suggestions on how the proposed amendments could be improved, this article provides context for that article and serves three purposes. It first explains the differences between information stored electronically and information stored in conventional documents and introduces the discovery issues presented by those differences. The article next examines the proposed amendments to Wisconsin’s procedural rules and summarizes how the amendments address the unique problems presented by e-discovery and, finally, how they do not.


Electronically stored information has revolutionized discovery. Digital files store evidence that would have been lost or destroyed if the information had been stored in paper documents, and all sorts of electronic communications can now be assembled, transmitted, manipulated, and stored. And, even though electronic information tends to be available after similar paper records would have been discarded, electronic communications are often sent without appropriate caution.[20] As a recent example, rumors of golfer Tiger Woods’ marital “transgressions” were substantiated when other women revealed hundreds of titillating text messages,[21] several lewd e-mails,[22] and a damning voicemail message[23] sent to them by Tiger.

Because of the permanent nature of electronic information and the lack of appropriate caution taken by senders of electronic communications, the information is salient in civil and commercial litigation. Electronically stored information differs from information stored in paper, however, and these differences present significant problems for the discovery process. This section identifies those differences and summarizes the problems.

1. An enormous amount of digital information exists

The volume of electronically stored information is almost always exponentially greater than the amount of information stored in paper documents, so digital information is remarkable due primarily to its volume.[24] The volume of digital information is so immense because people today communicate—nearly exclusively—using electronic means and, when they do, digital information is constantly created and stored, often without a user’s direction.[25]

In the workplace, for example, workers send and receive a huge amount of e-mail, and the distribution of e-mail messages has become impossible to control because—unlike paper documents—e-mail messages can be copied and forwarded very easily.[26] Businesses in North America alone store and send an estimated 2.5 trillion e-mails per year,[27] and market research indicates that the average employee sends or receives about 50 messages per working day, which translates into more than 1.2 million messages per year for an organization of 100 employees.[28] And, when a person sends an e-mail, a copy of the message, the identity of the sender and the recipient, and the time that the e-mail was sent, received, and opened are stored on the computer systems of both the sender and the recipient.[29]

Likewise, according to researchers, the number of people living in households with one or more cell phones now exceeds that of people living in a household with a landline,[30] and cell phones are able to offer functionality and store information that landline phones cannot. Cell phones are used to store voicemail messages, to send and receive e-mail, text, and instant messages, to take and send pictures, to manage a calendar and contacts, and to make and receive phone calls.[31] As a result of the functionality they provide, ordinary cell phones store an incredible amount of information, including telephone numbers, names and addresses, logs of missed and received calls, pictures, calendars, and a wide variety of recorded or text-based messages.[32]

In addition to working and communicating electronically, people now socialize through emerging social media. Websites such as Facebook,[33] LinkedIn,[34] and Twitter[35] allow users to share information, share photographs, and communicate, and because the sites have millions of users and store information about their users without their specific direction, the sites have also increased the amount of digital information available about a person and his or her daily activities. Like e-mails and cell-phones, social networking sites are already providing critical evidence in legal battles. Recently, for example, a teenage New Yorker sat in his father’s apartment in Harlem using his Facebook account, and at that same moment, another man was committing a robbery in the housing project where the teenager lived.<[36] The teenager was charged with the robbery, but the charges were dropped when prosecutors confirmed that the teen was using Facebook when the crime occurred.[37] Because of how prevalent social media has become, experts expect the sites to be a significant repository of information relevant to litigation.[38]

2. Digital files exist in a variety of forms or formats

Traditionally, documents could only be exchanged in one form, paper. But electronically stored information can be produced in a variety of forms or formats, and the form of production can have important implications for how easily—if at all—the information can be searched, whether relevant information is obscured or sensitive information is revealed, and how the information can be used.[39]

For example, a digital file may be produced in a portable document format (PDF) or in a tagged image file format (TIFF), and these file formats essentially produce a photograph of an electronic document.[40] A PDF file of a spreadsheet, however, may be useless because embedded information—such as computational formulas—cannot be seen or discerned.[41] On the other hand, a digital file may be produced in its native format, which is the format that the digital file was created and is used in during the normal course of operations, but that file may also not be useable if the person receiving the file does not have the software program capable of reading the file type.[42] A spreadsheet saved as a Microsoft Excel file, in other words, can’t be viewed on a computer that hasn’t had the Excel software program installed on it. Further complicating the form of exchange for digital files is that other computer-based transactions do not result in a conventional document at all, but are instead represented in integrated databases.

3. Some aspects of digital information have no counterpart in print media

Though conventional files do not usually contain information describing the paper documents contained in the file, computer systems continuously track and log data about electronic documents, and the files and logged data can be available even when it appears that they are not.

Software programs embed data about a document in its digital file.[43] This “data about data,” known as metadata, adds functionality to the editing, viewing, filing, and retrieving capabilities of the document.[44] So, for example, when a user creates a new document in Microsoft Word, the program stores the date the document was created and its author—among other information—and as changes are made to the document, Word tracks when and by whom the document was edited as well as what edits were made to it.[45] Though metadata is usually accessible through a program’s user interface, some of the data is hidden and can be difficult to retrieve.[46]

Similarly, almost all network operating software automatically records and maintains information about the use of the system and saves the data separately from the files contained in the system; this data is known as system data.[47] System data includes information about when, where, and who accesses a computer network as well as the applica­tions and passwords they used or what websites they visited,[48]and the level of detail can include the exact workstation at which a user was working on at a specified date and time.[49] Like metadata, system data is not consciously or unconsciously recorded by the user, is often hidden from users, and is difficult to retrieve.[50]

Another aspect of digital information that has no counterpart in print media is deleted data. When a paper document has been shredded, the document has been destroyed and cannot be retrieved. But when a user deletes a computer file, the file has not actually been destroyed.[51] Instead, the name of the document has been removed from the computer system’s file index, and the file’s data will not be deleted from the computer’s disk space until the disk space has been overwritten by a new file.[52] By analogy, a computer’s disk space and file index is like a library with a card catalog.[53] When a computer user deletes a file, the file’s card is removed from the library’s catalog, but the corresponding book stays on the shelf until that space is needed for—and filled by—another book.[54] Like the book that has had its card removed but remains on the library’s shelf, an electronic document may be recovered if its storage space has not been reused.[55]

4. Digital files are preserved differently than paper documents

Unlike copies of paper documents, digital files exist simultaneously on several different levels of preservation—in active, recovery, or backup files.[56]

Active files are works-in-progress and are generally those currently being created, received, or processed, or that need to be accessed fre­quently and quickly.[57] Active data is typically stored on a computer’s hard drive or on a network file server; word processing documents, spreadsheets, databases, electronic calendars, and contact managers are common types of active data.[58]

Recovery files are computer-system-generated documents stored on a user’s hard drive and are a form of inactive data that can be described as file clones.[59] Computers automatically create recovery files to assist users in recovering data losses caused by computer misuse or malfunction.[60] If, for example, you mistakenly turn off your computer without saving a word processing file, you may be able to recover a recent version of the file that was generated and temporarily stored on your computer.[61] Because recovery files are automatically created, the files often exist without their author’s knowledge, and when an author deletes the primary file, he or she is generally unaware that the recovery file is not also purged.[62] And, since the file is saved on a computer’s hard drive rather than on a network, purging a document on the network may not purge the recovery file from the computer’s hard drive.[63]

Finally, backup files are those that have been copied to removable media to provide users with access to data if the user’s entire system fails.[64] Though the backup files are used only rarely, they are a vital means to preserve documents in the event of inadvertent erasure, hardware malfunction, database corruption, or catastrophes such as fires, floods, or earthquakes.[65] To create the backup files, computer systems periodically create a copy of the information stored in the system and save the copy onto magnetic tape, and if a legitimate fear of natural disaster exists, many organizations store backup tapes in an off-site location.[66] Because backup tapes are not organized in a manner that separates them by designation or subject matter and the tapes are only designed to function if a catastrophe occurs, however, retrieval of a particular document from a backup tape is extremely difficult.[67]

5. Digital files are altered during the routine operation of a computer or system

Although paper documents can be damaged, altered, or destroyed, the dynamic, mutable nature of digital information presents new challenges.[68]

As mentioned throughout this article, computer systems automatically recycle and reuse memory space, and they can alter information without an operator’s specific direction or knowledge.[69] Indeed, merely opening a digital file nearly always changes its metadata.[70]

Further, even though backup data is necessary, permanent retention of all backup data would quickly prove burdensome and unwieldy for organizations that produce a large volume of documents.[71] Most organizations therefore use a regularized deletion system that periodically and automatically writes over backup data containing copies of documents that are no longer timely, thereby creating space for new backup data.[72] In other words, as a matter of sound business practice, organizations ordinarily destroy outdated e-mails, word processing documents, spreadsheets, and database records.[73]

6. Many computer systems are administered by third parties

Electronically stored information is more likely to be managed and stored by others than conventional paper documents.[74]

Businesses and individuals depend on telecommunications companies, internet service providers, and computer network owners for computer services, and even large companies outsource their information-technology work to contractors and consultants.[75] Likewise, individual users and small businesses often back up data by regularly transmitting their digital files to a third party’s servers over the Internet.[76] And, the software-as-a-service (SaaS) model of software licensing—in which applications and data are stored with software vendors and users access the information over the internet—is constantly becoming more popular.[77] As SaaS becomes ubiquitous, businesses and individuals are ultimately unlikely to have total control over their electronically stored information.

7. Summary

Since almost all information is now created and stored electronically, litigants must preserve, search, review, and produce a prodigious amount of digital information, and the nature of the information presents a number of problems for the discovery process. Electronically stored information is dynamic and can change merely by being accessed; deleted files are often not actually destroyed; hidden metadata can include important information, but can be difficult for the unprepared to preserve and produce; and backup files are difficult retrieve. Since these complications can expose unprepared parties to significant costs and spoliation claims for failure to preserve and produce information, rules to govern the e-discovery process must address the following issues:

  • Because deleted or backup data may be available, parties can request its production, even though restoring, retrieving, and producing it may require expensive and burdensome computer forensic work that is out of proportion to the reasonable discovery needs of the requesting party.
  • The volume and multiple sources of digital information can lead to disputes about the scope of discovery and may make it more difficult to identify and segregate privileged information more difficult, increasing the likelihood of its inadvertent production even when the producing party has taken steps to avoid it.
  • The dynamic nature of digital information makes it vital that a data producer preserve information that may be discoverable, often even before the lawsuit is filed.[78]


Wisconsin’s proposed amendments contain five basic provisions to guide litigants and judges in resolving the unique issues presented by e-discovery: first, the amendments state what electronically stored information is and that it is discoverable; second, the amendments set forth a protocol for requesting and producing electronically stored information; third, the amendments limit the extent to which non-parties must go to obtain information relevant to a suit; fourth, the amendments create a safe-harbor rule to protect parties who inadvertently destroy information because of the operation of their computer systems; and finally, the amendments suggest that judges get involved early in the discovery process to prevent potential disputes.

1. Definition of electronically stored information

Though the proposed amendments lack general definitions, they do include a definition for electronically stored information,[79] and the definition was purposefully drafted broadly so that advances in technology do not render it inapt.[80] Under the amendments, electronically stored information includes any writing, drawing, graph, chart, photograph, sound recording, image, and other data compilation from which information can be obtained or translated into a reasonably usable form.[81]

2. Protocol for conducting e-discovery

The proposed amendments set forth a protocol for the production of electronically stored information: they allow parties to respond to an interrogatory request by producing electronically stored information in lieu of a written response,[82] to make electronically stored information within the scope of discoverable material in a document-production request,[83] and set forth a procedure for parties to follow when requesting and responding to requests for electronically stored information.[84]

Under the procedure set forth in the proposed amendments, a requesting party may specify the form in which electronically stored information should be produced[85] and may also request to inspect, test, or sample another party’s electronically stored information.[86] A responding party may object to the request, however, and must specify the form in which it intends to produce the information before producing the information so the parties may identify and resolve disputes before incurring significant expenses.[87] If a responding party improperly objects or responds to a request, the requesting party may move the court for an order compelling discovery of the electronic information.[88] If the requesting party does not specify a form for production, the responding party must produce the information in the form in which the information is ordinarily maintained or in a reasonably usable form.[89] The responding party is also not required to produce the same electronically stored information in more than one form.[90]

3. Limitations on non-party discovery

Under the proposed amendments, a party may issue subpoenas compelling the production of electronically stored information from a nonparty in a similar manner in which it can request discovery from a party. However, the proposed amendments specifically include measures to prevent a subpoenaed party from undergoing undue burden or expense in responding to a subpoena.[91]

Procedurally, the amendments provide that a subpoena may specify the form in which the subpoenaed party must produce electronically stored information and that the subpoenaed party may be required to permit the serving party to inspect, copy, test, or sample its electronic information.[92] The subpoenaed party may object to the form in which electronically stored information is sought, and if it does so, the serving party must move the court for an order compelling the production or inspection of the information; any order the court enters, however, must protect the subpoenaed party from significant expense.[93] If a subpoena does not specify a form for production of electronically stored information, the person responding to the subpoena must produce the information in the form in which it is ordinarily maintained or in a reasonably usable form.[94] The subpoenaed party is also not required to produce the same electronically stored information in more than one form.[95]

The amendments also specifically provide that a party serving a subpoena—as well as its attorney—must take reasonable steps to avoid imposing undue burden or expense on the subpoenaed party.[96] The court issuing the subpoena must enforce that duty, and the amendments provide that the court may impose an appropriate sanction, including the subpoenaed party’s lost earnings and reasonable attorney’s fees, against a party or attorney who fails to comply with the duty.[97]

4. Safe harbor from spoliation sanctions for the loss of electronically stored information

The proposed amendments include a provision that limits the spoliation sanctions that can be imposed against a party who destroys or fails to produce electronically stored information.[98] The provision would create a statutory subsection providing that courts cannot impose sanctions on parties who fail to provide electronically stored information lost as a result of the routine or good-faith operation of their computer system.[99] Based upon the Council’s notes, the section is intended to provide a safe harbor from spoliation sanctions for parties who lose electronically stored information because the information was altered or overwritten without an operator’s specific direction or awareness—in other words, the “routine” operation of an electronic system.[100] The Council also notes that the section includes the “good faith” element to limit sanctions against a party who modifies or suspends the routine operation of its electronic system to prevent the loss of information relevant to a lawsuit, commonly known as a litigation hold.[101]

5. Scheduling orders

The proposed amendments finally encourage circuit courts to become more involved in managing e-discovery.[102] To do so, the amendments would alter § 802.10(3), which addresses how courts may schedule and plan their calendars, by including a subsection specifically stating that courts can address the need for e-discovery as part of a scheduling order.[103] Additionally, the Council notes that courts may appoint referees to resolve complex or expensive e-discovery issues.[104]


The proposed amendments to the Wisconsin rules are based upon the amendments to the Federal Rules, and like the amendments to the Federal Rules, Wisconsin’s proposed amendments provide guidance to courts in resolving disputes over the form of production of electronically stored information, spoliation claims,[105] and the extent to which nonparty discovery can be had. But Wisconsin’s proposed amendments differ from the amendments to the Federal Rules in at least two ways, and this article now addresses those differences.

1. Privilege waiver: the inadvertent production of protected information[106]

Because of the volume of digital material that can be produced during the e-discovery process, a privilege review of the materials may be incredibly expensive and time consuming[107] and, further, the chance that some privileged documents are missed during the review increases.[108] Parties undertaking e-discovery therefore face a significant risk that they may waive a claim of privilege when producing electronically stored information.[109]

To protect parties from inadvertently waiving privilege claims when producing electronically stored information, the amended Federal Rules of Civil Procedure include a procedure for resolving waiver-of-privilege disputes.[110] Under the Federal Rules, if a party inadvertently produces privileged material that it wishes to assert a claim of privilege on, it must give notice in writing to the receiving party and the receiving party may then decide whether to challenge the claim.[111] The receiving party must also promptly return, sequester, or destroy the information and any copies it has, and it may not use or disclose the information until the court determines whether the information is privileged and whether the privilege was waived.[112] Though the Federal Rules do not substantively govern whether a party has waived its claim of privilege, they do provide that parties must discuss privilege issues in preparing their discovery plans so that they can reach an agreement on how privilege disputes will be resolved,[113] and the agreements may then be considered when a court determines whether a waiver has occurred.[114] Additionally, the Federal Rules of Evidence were also recently amended, and Rule 502 now provides that when a party discloses privileged or protected material during discovery, the disclosure does not operate as a waiver in federal or state court if several conditions are met: the disclosure was inadvertent; the holder of the privilege or protection took reasonable steps to prevent the disclosure; and the holder promptly took reasonable steps to rectify the error, including following the waiver-of-privilege procedure set forth in the amended Federal Rules of Civil Procedure.[115]

Unlike the e-discovery amendments to the Federal Rules of Civil Procedure, the proposed amendments to Wisconsin’s rules do not include a provision addressing how disputes arising from inadvertent production will be resolved.[116] Instead, the Council believes that waiver-of-privilege issues are more properly addressed under the rules of evidence, including the attorney client privilege and the work product doctrine, than in the discovery rules.[117]

2. Cooperation among counsel

An appropriate level of transparency and communication between counsel on the thorny issues involved in e-discovery can provide protection from the costs and potential sanctions arising from the process.[118] By communicating in the initial phases of discovery, parties can identify what information must be preserved, the sources and custodians of relevant information, and what routine destruction policies each maintained.[119] Early, transparent discussions on data storage systems employed by the parties also puts each party on notice of what information may not be reasonably accessible,[120] and consultation about technical issues can help the parties determine the form in which they normally maintain electronically stored information and to avoid disputes over whether data should have been produced in native format.[121]

The amendments to the Federal Rules therefore encourage—and in many respects assume—cooperation among counsel during discovery, and federal courts have recognized that the overriding theme of the amendments to the Federal Rules is the open and forthright sharing of information by all parties so that cases can be resolved more quickly and at a lower cost.[122] In interpreting the Federal Rules, courts have therefore found that the Federal Rules require parties to:

  • Confer and engage in good faith, meaningful discussions with the opposing party on discovery issues;
  • Refrain from making discovery requests that are overly burdensome, costly, or disproportionate to the issue at stake;
  • Make a reasonable inquiry into the factual basis for discovery objections and avoid boilerplate objections; refrain from substantially unjustified discovery arguments;
  • Perform a reasonable search for documents on a timely basis;
  • Negotiate reasonable and workable search protocols;
  • Provide accurate information to the court about steps taken in discovery;
  • Provide a knowledgeable witness on e-discovery issues; and
  • In appropriate situations, either introduce expert testimony to support the suitability of search and review protocols, or avoid the need for expert testimony by cooperating with opposing counsel to create a mutually agreeable protocol.[123]

The courts in these cases do recognize that lawyers are advocates, but also recognize that counsel should be able to strike an appropriate balance of advocacy and cooperation, with an eye toward implementing principles of proportionality that consider the amount in controversy and the cost and scope of discovery. The opinions also reveal that some judges are growing impatient with resolving e-discovery disputes; indeed, in a recent opinion over an e-discovery dispute, one federal judge lamented, “[i]f there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.”[124]

Though a significant number of judicial opinions and a body of scholarship conclude that the best solution in the entire area of e-discovery may be cooperation among counsel, the proposed amendments to Wisconsin’s civil-procedure statutes do not require—or even encourage—parties and their lawyers to communicate about e-discovery issues. The Council offers little explanation for the omission, stating only that it chose not to impose a meet-and-confer requirement upon parties because Wisconsin’s procedural rules do not require parties to create a discovery plan and attend a discovery conference like the Federal Rules require.[125]


The readers of this Journal are primarily concerned with personal-injury defense, and with a bit of reflection, it is easy to understand why e-discovery will be important to our practice. Suppose a plaintiff, the day after an accident, sent an e-mail message to his mother about his injuries—wouldn’t the e-mail be likely to say something like, “Don’t worry, Mom. I really wasn’t hurt at all.”? The plaintiff may also post a message on Facebook about the accident or a short message on Twitter, and each message could contain information relevant to a suit. Though it is not certain whether that sort of discovery is now commonplace in personal-injury cases, at least one appellate court case involved a remarkable dispute about access to a plaintiff’s home computer in a personal-injury case.[126] In the case, the plaintiff—a prosperous entrepreneur—alleged to have sustained serious head injuries in a car accident with the defendants’ truck.[127] After the accident, the plaintiff claimed that he had difficulties planning, remembering things, and controlling his temper, and a respected neurologist testified that the plaintiff had suffered a traumatic brain injury during the accident, which impaired his work and social capabilities.[128] During discovery, the defendants obtained production of the plaintiff’s home computer, and their expert determined that someone had accessed the computer and cleared a significant amount of information off the computer’s hard drive and that areas of the hard drive that were not cleared contained child pornography.[129] The defendants argued that the plaintiff had wiped much of the child pornography from the computer, that his ability to do so contradicted his claims that he could not perform difficult tasks, that the presence of child pornography provided an explanation for his social difficulties unrelated to the accident, and that the spoliation of the hard drive justified the dismissal of the plaintiff’s case.[130] The district court ultimately refused to allow the defendants to present evidence of the child pornography at trial, but it did find that spoliation had occurred and sanctioned the plaintiff by reading an adverse inference instruction to the jury.[131]

As the examples discussed throughout this article illustrate, the potential for e-discovery from plaintiffs in personal-injury cases exists and counsel will need to understand the law governing e-discovery to competently collect that information. To further your understanding, the Journal encourages each of you to reflect on Wisconsin’s proposed amendments, to consider the comments made by Attorneys Mitby and Edwards in their submission, and to provide your own thoughts and insights on this developing body of law.

[1] Carey Sirota Meyer & Kari L. Wraspir, eDiscovery: Preparing Clients for (and Protecting Them Against) Discovery in the Electronic Information Age, 26 Wm. Mitchell L. Rev. 939, 962 (2000).

[2] The Sedona Conference, “Jumpstart Outline”: Questions to Ask Your Client and Your Adversary to Prepare for Preservation, Rule 26 Obligations, Court Conferences and Requests for Production, May 2008, available at http://www.thesedonaconference.org/dltForm?did=Questionnaire.pdf.

[3] Meyer & Wraspir, supra note 1, at 962.

[4] Barbara J. Rothstein, Ronald J. Hedges, & Elizabeth C. Wiggins, Managing Discovery of Electronic Information: A Pocket Guide for Judges, Fed. Jud. Center, 2007, at 12, available athttp://www.fjc.gov/public/pdf.nsf/lookup/eldscpkt.pdf/$file/eldscpkt.pdf.

[5] See In re John Doe Proceeding, 2004 WI 65, ¶ 62, 272 Wis. 2d 208, 680 N.W.2d 792 (Abrahamson, C.J., concurring).

[6] Kenneth J. Withers, Computer-Based Discovery in Federal Civil Litigation, 2000 Fed. Cts. L. Rev. 2, II.B (Oct. 2000).

[7] See In re John Doe Proceeding, 2004 WI 65, ¶ 62.

[8] Metadata is information about a particular data set or document that describes how when, and by whom it was collected, created, accessed, and modified and how it is formatted. The Sedona Conference, The Sedona Conference Glossary: E-Discovery & Digital Information Management, Dec. 2007, available at http://www.thesedonaconference.org/dltForm?did=TSCGlossary_12_07.pdf (see definition of metadata). It can be altered intentionally or inadvertently. Id. It may be extracted when native files are converted to image. Id. Some metadata such as file dates and sizes can be seen easily by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept. Id. Metadata is generally not reproduced in full form when an electronic document is printed. Id.

[9] System data refers to metadata that is generated by a computer system to track the demographics—including the name, size, location, and usage—of electronically stored information and is not embedded within, but stored externally from, the electronically stored information. Id. (see definition of file system metadata).

[10] Deleted data is data that existed on a computer as live data and which has been deleted by the computer system or end-user activity. Id. (see definition of deleted data). Deleted data remains on storage media in whole or in part until it is overwritten or “wiped.” Id. Even after the data itself has been wiped, directory entries, pointers, or other information relating to the deleted data may remain on the computer. Id.

[11] See Rothstein et al., supra note 5, at 7–8.

[12] Id.

[13] See In re John Doe Proceeding, 2004 WI 65, ¶ 62, 272 Wis. 2d 208, 680 N.W.2d 792 (Abrahamson, C.J., concurring).

[14] See generally Thomas Y. Allman, State E-Discovery Rulemaking after the 2006 Federal Amendments: An Update, Sep. 2, 2009, http://www.ediscoverylaw.com/uploads/file/State%20Rulemaking%20-%20Allman.pdf.

[15] Id. at 1.

[16] Id.

[17] April M. Southwick, Memorandum in Support and Petition of Wisconsin Judicial Council for an Order Amending Wis. Stats. §§ 802.10, 804.08, 804.09, 804.12, and 805.07, April 23, 2009, http://www.wicourts.gov/supreme/docs/0901petition.pdf [hereinafter The Petition].

[18] Id.

[19] Id. at 1.

[20] Martin H. Redish, Electronic Discovery and the Litigation Matrix, 51 Duke L.J. 561, 588 (2001).

[21] See Text Messages Between Tiger Woods and Jaimee Grubbs, N.Y. Post, Dec. 9, 2009, available athttp://www.nypost.com/p/news/national/text_messages_between_tiger_woods_lh2ptFU8WhzJEBD8f2CCgO.

[22] Nancy Dillon & Corky Siemaszko, Tiger Woods’ Texts to Rachel Uchitel, Alleged Mistress No. 1, Reveal Tortured Affair, N.Y. Daily News, Dec. 9, 2009, available athttp://www.nydailynews.com/gossip/2009/12/09/2009-12-09_tiger_woods_texts_to_rachel_uchitel_alleged_mistress_no_1_reveal_tortured_affair.html.

[23] Nancy Dillion & Corky Siemaszko, Tiger Woods Left Voicemail for Alleged Lover Jaimee Grubbs Warning Wife Searched His Phone: Report, N.Y. Daily News, Dec. 2, 2009, available at http://www.nydailynews.com/gossip/2009/12/02/2009-12-02_tiger_woods_offers_profound_aplogy_for_transgressions_amid_rumored_affairs_with_.html#ixzz0Zby0ZNRM.

[24] Robert L. Kelly, Understanding Electronically Stored Information, Bus. L. Today, Sep.-Oct. 2007, available at http://www.abanet.org/buslaw/blt/2007-09-10/index.shtml.

[25] Id.

[26] See Redish, supra note 21, at 588.

[27] Daniel Hodgman, A Port in the Storm: The Problematic and Shallow Safe Harbor for Electronic Discovery, 101 N.W. U. L. Rev. 259, 276 (2007) (citing David Narkiewicz, Electronic Discovery and Evidence, Pennsylvania Law. 57 (2003)).

[28] Microsoft, Survey Finds Workers Average Only Three Productive Days Per Week, Mar. 15, 2005, available at http://www.microsoft.com/presspass/press/2005/mar05/03-15threeproductivedayspr.mspx.

[29] Redish, supra note 21, at 587.

[30] David C. Critchell, Cell Phones vs. Landlines: The Suprising Truths, MainStreet, Aug. 27, 2008, available at http://www.mainstreet.com/article/smart-spending/budgeting/cell-phones-vs-landlines-surprising-truths.

[31] Michael R. Arkfeld, Electronic Discovery and Evidence § 2.05[F] (2004).

[32] Id.

[33] Facebook is a privately owned global social-networking website. See Welcome to Facebook! | Facebook, http://www.facebook.com (last visited Dec. 11, 2009).

[34] LinkedIn is a business-oriented social-networking website. See Relationships Matter | LinkedIn, http://www.linkedin.com (last visited Dec. 11, 2009).

[35] Twitter is a free social-networking and micro-blogging service that enables its users to send and read another user’s short text-based messages, known as tweets. See Twitter, http://www.twitter.com (last visited Dec. 11, 2009).

[36] Damiano Beltrami, I’m Innocent. Just Check My Status on Facebook, N.Y. Times, Nov. 11, 2009, available at http://www.nytimes.com/2009/11/12/nyregion/12facebook.html?_r=1&ref=nyregion.

<[37] Id.

[38] Id.

[39] Rothstein et al., supra note 5, at 13.

[40] Id.

[41] Id. at 3.

[42] Id.

[43] Jay E. Grenig & William C. Gleisner, III, eDiscovery & Digital Evidence § 1.3 (2005).

[44] See Miller, Metadata Is Major Factor in Discovery, Nat’l L.J., Aug. 16, 2004, at S1.

[45] Microsoft, Find and Remove Metadata (Hidden Information) in Your Legal Documents, http://office.microsoft.com/en-us/word/HA010776461033.aspx?pid=CL100636481033 (last visited Dec. 12, 2009).

[46] Id.

[47] See supra note 10.

[48] Rothstein et al., supra note 5, at 7.

[49] See supra note 10.

[50] Id.

[51] Marnie H. Pulver, Note, Electronic Media Discovery: The Economic Benefit of Pay-Per-View, 21 Cardozo L. Rev. 1379, 1411 (2000).

[52] Grenig & Gleisner, supra note 44, § 6.7.

[53] Id.

[54] Id.

[55] Id.

[56] Redish, supra note 28, at 584.

[57] Pulver, supra note 52, at 1407–08.

[58] Rothstein et al., supra note 5, at 7.

[59] Pulver, supra note 52, at 1408.

[60] Id.

[61] Redish, supra note 28, at 585–86.

[62] Id.

[63] Id.

[64] Withers, supra note 7, at II.E.

[65] Alan M. Gahtan, Electronic Evidence 52 (1999).

[66] Redish, supra note 28, at 586.

[67] Withers, supra note 7, at II.E.

[68] Id.

[69] Rothstein et al., supra note 5, at 7.

[70] Id.

[71] Redish, supra note 28, at 584.

[72] Id.

[73] Id.

[74] Rothstein et al., supra note 5, at 12.

[75] Id.

[76] Redish, supra note 28, at 586.

[77] For a thorough discussion of the development of the software-as-a-service model of computing, see Nicholas Carr, The Big Switch: Rewiring the World, from Edison to Google (2008).

[78] Rothstein et al., supra note 5, at 4 (listing these e-discovery issues).

[79] The Petition at 18 (see parenthetical following term “electronically stored information” in amended § 804.09(1)(a)).

[80] See Wisconsin Judicial Council Meeting Minutes, Jan. 16, 2009, http://www.wicourts.gov/about/committees/judicialcouncil/docs/minutes0409.pdf.

[81] Id.

[82] Under the proposed amendments, Wis. Stat. § 804.08(3)—which provides when a party can respond to an interrogatory request with a document—would be amended as follows:

(3) OPTION TO PRODUCE BUSINESS RECORDS. Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, including electronically stored information, or from a compilation, abstract or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries.

The Petition at 17 (underlined text indicates the amended text of the statute). Interestingly, the Council’s note to the amendment provides that a party wishing to invoke the amended statute “may be required to provide direct access to its electronic information system, but only if that is necessary to afford the requesting party an adequate opportunity to derive or ascertain the answer to the interrogatory.” Id. Because any party would seem unlikely to give its adversary direct access to its information system, the amended section may be rarely invoked.

[83] Under the proposed amendments, § 804.09(1)—which provides the scope of discoverable materials in a document-production request—would be amended as follows:

804.09 Production of documents and things and entry upon land for inspection and other purposes. (1) SCOPE. Any party may serve on any other party a request (a) to produce and permit the party making the request, or someone acting on the party’s behalf, to inspect and copy, any designated documents or electronically stored information (including writings, drawings, graphs, charts, photographs, phono-recordssound recordings, images, and other data or data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of s. 804.01(2) and which are in the possession, custody or control of the party upon whom the request is served; or (b) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation therein, within the scope of s. 804.01(2).

The Petition at 17–18 (underlined text indicates the amended text of the statute). The Council’s note explains that § 804.09(1) is being amended to confirm “that discovery of electronically stored information stands on equal footing with discovery of paper documents” and that the section applies to information “fixed in a tangible form and to information that is stored in a medium from which it can be retrieved and examined.” Id.

[84] The procedure for the production of electronically stored information is set forth in an amended § 804.09(2), which would provide as follows:


(a) Except as provided in s. 804.015, the request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced.

(b) 1. The party upon whom the request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The response 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 the request, the party shall state the form or forms it intends to use.

2. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

      1. A party shall produce documents as they are kept in the usual course of business or shall organize and label them to correspond to the categories in the request;
      2. If a request does not specify a form for producing electronically stored information, a party shall produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
      3. A party need not produce the same electronically stored information in more than one form.

The Petition at 18–19 (underlined text indicates the amended text of the statute).

[85] Id. at 18 (see amended § 804.09(2)(a)).

[86] Id. (see amended § 804.09(1)(b)).

[87] The Petition at 6.

[88] Id. (see amended § 804.09(2)(c)).

[89] Id. at 18–19 (see amended § 804.09(2)(b)).

[90] Id. at 19 (see amended § 804.09(2)(b)2.c.).

[91] Under the proposed amendments, Wis. Stat. §§ 805.07(2), (3), and (7)—which provide the scope of information subject to subpoena—would be amended as follows:

805.07 Subpoena

. . .

(2) Subpoena requiring the production of material. (a) A subpoena may command the person to whom it is directed to produce the books, papers, documents, electronically stored information, or tangible things designated therein. A subpoena may specify the form or forms in which electronically stored information is to be produced. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding party to permit inspection, copying, testing, or sampling of the materials.

(b) Notice of a 3rd-party subpoena issued for discovery purposes shall be provided to all parties at least 10 days before the scheduled deposition in order to preserve their right to object. If a 3rd-party subpoena requests the production of books, papers, documents, electronically stored information, or tangible things that are within the scope of discovery under s. 804.01(2)(a), those objects shall not be provided before the time and date specified in the subpoena. The provisions under this paragraph apply unless all of the parties otherwise agree.

(3) Protecting a person subject to a subpoena. (a) Avoiding undue burden or expenses; sanctions.A party or 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. The issuing court shall enforce this duty and impose an appropriate sanction, which may include lost earnings and reasonable attorney’s fees, on a party or attorney who fails to comply.

(b) Protective orders. Upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, the court may (a) quash or modify the subpoena if it is unreasonable and oppressive or (b) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, electronically stored information, or tangible things designated therein.

(c) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises, or to producing electronically stored information in the form or forms requested. The objection shall be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: 1. At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection.

2. These acts may be required only as directed in the order, and the order shall protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.

. . .

(7) DUTIES IN RESPONSE TO A SUBPOENA. (a) Documents. A person responding to a subpoena to produce documents shall produce them as they are kept in the ordinary course of business or shall organize and label them to correspond to the categories in the demand.

(b) Electronically stored information. 1. Form of electronically stored information not specified. If a subpoena does not specify a form for producing electronically stored information, the person responding shall produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

2. Electronically stored information produced in only one form. The person responding need not produce the same electronically stored information in more than one form.

The Petition at 20–21 (underlined text indicates the amended text in the statute).

[92] Id. (see amended § 805.07(2)(a)). The Council’s note to the proposed amendment to § 805.07(2) also provides that the amendment is not intended to create a routine right of direct access to a person’s electronic information system:

The addition of sampling and testing to Wis. Stat. § 805.07(2) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a person’s electronic information system, although such access might be justified in some circumstances.

Id. at 20.

[93] Id. (see amended § 805.07(3)(c)).

[94] Id. (see amended § 805.07(7)(b)).

[95] Id.

[96] Id. (see amended § 805.07(3)(a)).

[97] Id.

[98] Amended § 804.12(4m) would provide as follows:

(4m) FAILURE TO PROVIDE ELECTRONICALLY STORED INFORMATION. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

The Petition at 19 (underlined text indicates created text in the statutory subsection).

[99] Id.

[100] The Council’s note provides as follows:

The “routine operation” of computer systems includes the alteration and overwriting of information, often without the operator’s specific direction or awareness, a feature with no direct counterpart in hard-copy documents. Good faith in the routine operation of an information system may involve a party’s intervention to modify or suspend certain features of the routine operation to prevent the loss of information, if that information is subject to a preservation obligation.

The Petition at 19.

[101] For a helpful outline on how to manage litigation holds specific to Wisconsin law, see Michael J. Cohen, Litigation Holds-What Should Be Done, http://law.marquette.edu/cgi-bin/site.pl?2216&deEvent_eventID=2591&date=2009-11-06 (last visited Dec. 1, 2009).

[102] The Petition at 17.

[103] Under the proposed amendments, § 802.10(3)—which governs a circuit court’s scheduling practices—would be amended to include the following subsection:

802.10(3)(jm) The need for discovery of electronically stored information.

The Petition at 17.

[104] More specifically, the Council’s note provides:

Pursuant to Wis. Stat. § 805.06, the court may also appoint a referee to report on complex and/or expensive discovery issues, including those involving electronically stored information.


[105] The amount of guidance ultimately provided to courts in resolving spoliation claims, however, remains unclear; for a thorough analysis demonstrating that federal courts have inconsistently applied spoliation sanctions under the amendments to the Federal Rules of Civil Procedure, see Andrew Hebl, Spoliation of Electronically Stored Information, Good Faith, and Rule 37(e), 29 N. Ill. U. L. Rev. 79 (2008).

[106] For an extensive discussion of clawback agreements in federal courts, see Ashish Joshi, Clawback Agreements in Commercial Litigation: Can You Unring A Bell?, Mich. B. J., December 2008, at 34, available at http://www.lorandoslaw.com/CM/Articles/Clawback-Agreements.pdf.

[107] Carroll, Developments in the Law of Electronic Discovery, 27 Am. J. Trial Advoc. 357, 379 (2003).

[108] See, e.g., U.S. v. Keystone Sanitation Co., Inc., 885 F. Supp. 672, 676 (attorney-client privilege waived because two e-mails had been inadvertently disclosed during a massive production of documents).

[109] See Fed. R. Civ. P. 26(b)(5)(B) advisory committee’s note.

[110] See Fed. R. Civ. P. 26(b)(5)(B).

[111] See id. advisory committee’s note.

[112] Id.

[113] Id.

[114] Id.

[115] Fed. R. Evid. 502.

[116] See generally The Petition.

[117] The Petition at 14–15. It appears that the Wisconsin Judicial Council is working on drafting amendments to the Federal Rules of Evidence. See Wisconsin Judicial Council Meeting Minutes, Sep. 9, 2009, http://www.wicourts.gov/about/committees/judicialcouncil/docs/minutes0909.pdf.

[118] An excellent article published by The Sedona Conference, a prominent foundation of lawyers, judges, and academics that publishes guidelines for resolving e-discovery issues, fully presents the legal, economic, and ethical considerations that justify cooperation among counsel in resolving e-discovery disputes. The Sedona Conference, The Case for Cooperation, 10 Sedona Conf. J. 339 (2009 Supp.).

[119] Id. at 343–44.

[120] Id.

[121] Id. at 344.

[122] Id. at 355.

[123] Id.

[124] Manica v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 360 n.3 (D. Md. 2008) (Grimm, Mag. J.) (quoting Kreuger v. Pelican Prod. Corp., C/A No. 87-2385-A, slip. Op. (W.D. Okla. Feb. 24, 1989)).

[125] The Petition at 13.

[126] See Foust v. McFarland, 698 N.W.2d 24 (Minn. Ct. App. 2005).

[127] Id. at 28.

[128] Id. at 27.

[129] Id. at 28–29.

[130] See generally id.

[131] Id. at 29.