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State Reforms More Modest Than Federal Rule Changes

Connecticut Law Tribune

August 22, 2011

Authors: Charles L. Howard

Ever since new rules for e-discovery were issued for federal courts in 2006, Connecticut litigators have wondered when — or if — the Practice Book would be revised to address the new world of electronically stored information (ESI) and whether Connecticut would adopt the approach taken in the revisions to the Federal Rules of Civil Procedure.

It seemed just a matter of time, since more than 35 states have by now enacted new rules regarding e-discovery, with many adopting some version of the federal rules.

For those Connecticut practitioners worried about wholesale adoption of the Federal Rules on e-discovery for state court practice, the new Practice Book rules will come as a relief. The good news is that Connecticut has taken a much more modest route to reform and one much more suited to state court litigation.

The new rules, set forth in revised Practice Book § 13 and effective Jan. 1, 2012, define ESI; provide guidance regarding parties’ obligations to produce ESI; and outline the circumstances in which protective orders are appropriate. Just as importantly, they permit a court to consider e-discovery issues in the context of what is at stake in a case.

The new rules do not, however, incorporate some of the more significant burdens imposed by the Federal Rules, such as compelling parties with inaccessible ESI to bear the burden and costs of showing that the information is not reasonably accessible or requiring parties to address ESI in a discovery plan at the outset of the case, before they have any meaningful information about the volume or accessibility of such information.

The Chapter 13 changes begin by defining “electronic” and “electronically stored information” in general terms to include information stored in electrical, digital, wireless, optical or similar media. These broadly worded definitions are designed to encompass future developments in computer technology and explicitly add ESI to the types of information discoverable pursuant to § 13-2.

The revised protective order directives set forth in § 13-5 authorize judges to address the discovery of ESI in protective orders, including the allocation of related expenses. In determining whether to address ESI in a protective order, judges are encouraged to consider the amount in controversy, the parties’ resources, the importance of the issues, and “the importance of the requested discovery in resolving the issues.”

To the extent information is not reasonably accessible, production obligations will depend on whether the burden and expense of production can be justified under the circumstances of the case. Relevant factors may include: the specificity of the discovery request, the amount of information available from other and more easily accessed sources; the likelihood that a search of will produce relevant, responsive information that cannot be obtained from other, more easily accessed sources; and predictions as to the importance and usefulness of the further information. If, after balancing these factors, the court orders discovery of information that is not reasonably accessible, the court has discretion to allocate some or all of the expense of discovery.

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