Pennsylvania: Amended Discovery Rules

In adopting amendments to its rules on discovery (Order No. 564, effective August 1, 2012), the Pennsylvania Supreme Court has chosen not to mirror the 2006 Amendments to the Federal Rules of Civil Procedure. The Explanatory Comment makes clear that, “[t]hough 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 . . . .” Instead, Rule 4009.1 adds electronically stored information (ESI) to the categories of items that are discoverable. The requesting party “may specify the format in which it is to be produced and a responding party or person not a party may object.” As additional guidance, the Explanatory Comment sets forth a proportionality standard “in order that discovery obligations are consistent with the just, speedy and inexpensive determination and resolution of litigation disputes.” In applying the standard, a Pennsylvania court must consider the nature and scope of litigation; relevance and importance of ESI; associated cost, burden and delay; the ease of producing ESI and whether similar information is available with less burden; and any other relevant factors.  As to the reason for the divergence, David Cohen, a member of the subcommittee that drafted the rules, noted that the “majority of cases in Pennsylvania county court dockets don’t require broad e-discovery, and there was sensitivity to not imposing extra procedures or burdens that may not be needed in most state court cases.”

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