State Courts

Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information
In August 2006, the Conference of Chief Justices ("CCJ") approved the "Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information." While not binding on state courts, the guidelines are intended to provide consistency among state court rulings related to the production of electronic information in the discovery process.

Although similar to the Federal Rule amendments, the guidelines do contain some differences. Most notably, the guidelines have a more expansive definition of "electronically stored information" based on section 29 of the American Bar Association Standards Relating to Electronic Discovery. Unlike the Federal Rules, the guidelines define "accessible information" as that which is "easily retrievable in the ordinary course of business without undue cost and burden." The guidelines also follow the three-tiered cost shifting approach set forth in Zubulake v. UBS Warburg LLC ("Zubulake III"), 216 F.R.D. 280 (S.D.N.Y. 2003).

In August of 2007, the National Conference of Commissioners of Uniform State Laws ("NCCUSL"), best known as the author of the Uniform Commercial Code, approved the Uniform Rules Relating to Discovery of Electronically Stored Information .

The Uniform Rules are based on the federal rules and are similar to the guidelines. However the Uniform Rules are intended to be adopted by the states and have the force of law. In turn, the guidelines are recommendations for individual state courts. The rules were approved by the American Bar Association's House of Delegates at its Midyear Meeting in Los Angeles on February 6-12, 2008.


Alabama
The Standing Committee on the Alabama Rules of Civil Procedure has been considering whether to propose amendments to the Supreme Court of Alabama for adoption into the Alabama Rules of Civil Procedure similar to the December 2006 amendments to the Federal Rules of Civil Procedure concerning electronic discovery. See George M. Dent, III, Discovery of Electronically Stored Information -- Potential Alabama Civil Procedure Rules, 69 Ala. Law . 106 (Mar. 2008).

In Ex parte Cooper Tire & Rubber Co., 2007 Ala. LEXIS 229 (Ala. Oct. 26, 2007). the Alabama Supreme Court concluded that Fed. R. Civ. P. 26(b)(2)(B) and Wiginton factors (Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 571-73 (N.D. Ill. 2004)) should be used in considering the extent to which parties in Alabama state court actions must respond to discovery requests for electronically stored information.


Alaska
Alaska Rules of Civil Procedure 16, 26, 33, 34, 37, and 45 have been amended, effective April 15, 2009, to contain electronically stored information provisions parallel to the provisions added to the Federal Rules of Civil Procedure in December 2006. A copy of Alaska Supreme Court Order 1682 amending the Alaska rules is available here.


Arizona
The Arizona Supreme Court adopted amendments to Ariz. R. Civ. P. 16, 26, 26.1, 33, 34, 37, and 45 modeled on changes in December 2006 to the Federal Rules of Civil Procedure to account for electronically stored information. The amendments to the Arizona Rules became effective January 1, 2008. Similarities and differences between the Arizona and federal rules are described in the following article: Robert G. Schaffer & Anthony Austin, New Arizona E-Discovery Rules, 44 AZ Attorney 24 (Feb. 2008).


Arkansas
Arkansas Rule of Civil Procedure 26.1 has been adopted by the Arkansas Supreme Court, effective October 1, 2009, to provide a supplemental rule to govern electronic discovery. In re Electronic Discovery & Adoption of Rule of Civil Procedure 26.1, 2009 Ark. LEXIS 609 (Ark. Sept. 24, 2009).

The electronic discovery rule is considered optional because it will apply only if the parties in a case agree it will apply or the circuit court, upon a motion with good cause shown, orders that the rule will apply. The rule provides for a planning conference for the parties to plan on timing and format of production, on necessary protective orders, and on expense allocation. The rule bars the court from imposing sanctions, "absent exceptional circumstances," on a party for loss of electronically stored information as the result of routine, good-faith operation of an electronic information system. The rule also addresses requests for production of electronically stored information, form of production, limitations on discovery from sources that are not reasonably accessible, and subpoenas to non-parties.

In January 2008, Ark. R. Civ. P. 26(b)(5) and Arkansas Rule of Evidence 502 were amended to establish a procedure for handling privileged documents that are disclosed inadvertently. An addition to the Reporter's Notes regarding the 2008 Amendment to Rule 26 noted that the change to the Arkansas rule drew on the December 2006 changes to Fed. R. Civ. P. 26. The Reporter's Notes pointed out: "The advent of electronic discovery has only increased the risk of inadvertent disclosures."

The January 2008 revision to Ark. R. Civ. P. 26(b)(5) was outlined in the Reporter’s Notes:

The new provision creates a presumption against waiver if the disclosing party acts promptly after discovering the inadvertent disclosure. Notice by the disclosing party must be specific about both the material inadvertently disclosed and the privilege or doctrine protecting it. After receiving this kind of notice, a party may neither use nor disclose the specified material. Instead, the receiving party must either return, sequester, or destroy the material (including all copies). A party's failure to fulfill these obligations will expose that party to sanctions under Rule 37. The new provision also creates a procedure for the receiving party to challenge a notice of inadvertent disclosure and a procedure for the circuit court to resolve the dispute.

Click here for more information on the Supreme Court of Arkansas


California
California's Electronic Discovery Act became effective on June 29, 2009. The Act added provisions for electronic discovery to the California Code that are comparable to provisions added to the Federal Rules of Civil Procedure in 2006. The following provisions of the California Code of Civil Procedure incorporate the Electronic Discovery Act:

Cal. Code Civ. Proc. § 1985.8, titled "Procedure for subpoena of electronically stored information," provides detailed directions for production of electronic documents by a non-party. The party serving the subpoena is obligated to avoid imposing undue burden or expense on the recipient. A recipient that opposes production on the ground of undue burden or expense has to demonstrate that the requested information is from a source that is not reasonably accessible because of undue burden or expense. A "safe harbor" is provided through a directive to the courts not to impose sanctions for the loss of electronic information as the result of the routine, good faith operation of an electronic information system. Claims of privilege are provided for, and disputes over the burden and expense of production are subject to cost-benefit analysis and orders for cost-sharing.

Cal. Code Civ. Proc. § 2016.020, titled "Definitions," defines "electronic" ("relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities") and "electronically stored information" ("information that is stored in an electronic medium").

Cal. Code Civ. Proc. § 2031.010, titled "Right to discovery by inspecting, copying, testing, or sampling documents, tangible things, land or other property and electronically stored information," includes electronically stored information within the matters that may be inspected, copied, tested, or sampled.

Cal. Code Civ. Proc. § 2031.030, titled "Format and requirements for demands for inspection, copying, testing, or sampling," provides in subsection (a)(2) that the party demanding discovery of electronically stored information may specify the form in which the information will be produced.

Cal. Code Civ. Proc. § 2031.050, titled "When supplemental demand may be propounded," includes electronically stored information within the categories of information that may be sought in supplemental demands.

Cal. Code Civ. Proc. 2031.060, titled "Motion for protective order; What protective order may provide; Denial of protective order; Monetary sanction," contains detailed provisions for obtaining protective orders regarding electronic discovery:

(c) The party or affected person who seeks a protective order regarding the production, inspection, copying, testing, or sampling of electronically stored information on the basis that the information is from a source that is not reasonably accessible because of undue burden or expense shall bear the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense.

(d) If the party or affected person from whom discovery of electronically stored information is sought establishes that the information is from a source that is not reasonably accessible because of undue burden or expense, the court may nonetheless order discovery if the demanding party shows good cause, subject to any limitations imposed under subdivision (f).

(e) If the court finds good cause for the production of electronically stored information from a source that is not reasonably accessible, the court may set conditions for the discovery of the electronically stored information, including allocation of the expense of discovery.

(f) The court shall limit the frequency or extent of discovery of electronically stored information, even from a source that is reasonably accessible, if the court determines that any of the following conditions exist:

(1) It is possible to obtain the information from some other source that is more convenient, less burdensome, or less expensive.

(2) The discovery sought is unreasonably cumulative or duplicative.

(3) The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought.

(4) The likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.

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(i)(1) Notwithstanding subdivision (h), absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.

(2) This subdivision shall not be construed to alter any obligation to preserve discoverable information.

Cal. Code Civ. Proc. § 2031.210, titled "Nature and format of response," provides in subsection (d) that "[i]f a party objects to the discovery of electronically stored information on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense and that the responding party will not search the source in the absence of an agreement with the demanding party or court order, the responding party shall identify in its response the types or categories of sources of electronically stored information that it asserts are not reasonably accessible. By objecting and identifying information of a type or category of source or sources that are not reasonably accessible, the responding party preserves any objections it may have relating to that electronically stored information."

Cal. Code Civ. Proc. § 2031.240, titled "Statement of compliance or inability to comply when part of demand objectionable," includes electronically stored information within the items in an objection to discovery that must be identified with particularity in the objection.

Cal. Code Civ. Proc. § 2031.280, titled "Form in which documents to be produced; Provisions for form of producing electronic information; Translation of data," contains provisions specifically applicable to electronic discovery:

(c) If a party responding to a demand for production of electronically stored information objects to a specified form for producing the information, or if no form is specified in the demand, the responding party shall state in its response the form in which it intends to produce each type of information.

(d) Unless the parties otherwise agree or the court otherwise orders, the following shall apply:

(1) If a demand for production does not specify a form or forms for producing a type of electronically stored information, the responding party shall produce the information in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable.

(2) A party need not produce the same electronically stored information in more than one form.

(e) If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably usable form. [Note that subsection (e) preceded the Electronic Discovery Act.]

Cal. Code Civ. Proc. § 2031.285, titled "Notification of claim of privilege or protection as attorney work product for electronic information; Sequestering of information; Contesting claim," provides for privilege and work product claims related to electronically stored information:

(a) If electronically stored information produced in discovery is subject to a claim of privilege or of protection as attorney work product, the party making the claim may notify any party that received the information of the claim and the basis for the claim.

(b) After being notified of a claim of privilege or of protection under subdivision (a), a party that received the information shall immediately sequester the information and either return the specified information and any copies that may exist or present the information to the court conditionally under seal for a determination of the claim.

(c) (1) Prior to the resolution of the motion brought under subdivision (d), a party shall be precluded from using or disclosing the specified information until the claim of privilege is resolved. (2) A party who received and disclosed the information before being notified of a claim of privilege or of protection under subdivision (a) shall, after that notification, immediately take reasonable steps to retrieve the information. (d) (1) If the receiving party contests the legitimacy of a claim of privilege or protection, he or she may seek a determination of the claim from the court by making a motion within 30 days of receiving the claim and presenting the information to the court conditionally under seal.

(2) Until the legitimacy of the claim of privilege or protection is resolved, the receiving party shall preserve the information and keep it confidential and shall be precluded from using the information in any manner.

Cal. Code Civ. Proc. § 2031.300, titled "Effect of failure to serve timely response to demand; Motion for order; Monetary and other sanctions; Exception for failure to provide certain electronic information," provides a "safe harbor" for the loss of electronic information in the usual course of business:

(d)

(1) Notwithstanding subdivision (c), absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as a result of the routine, good faith operation of an electronic information system.

(2) This subdivision shall not be construed to alter any obligation to preserve discoverable information.

Cal. Code Civ. Proc. § 2031.310, titled "Motion for order compelling further response; Grounds; Notice; Waiver; Establishing reasonableness of accessibility of electronic information; Court ordered limitations on discovery of electronic information; Sanctions; Exception to sanctions for failure to provide certain electronic information," provides for cost-benefit analysis of electronic discovery and cost sharing:

(d) In a motion under subdivision (a) relating to the production of electronically stored information, the party or affected person objecting to or opposing the production, inspection, copying, testing, or sampling of electronically stored information on the basis that the information is from a source that is not reasonably accessible because of the undue burden or expense shall bear the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense.

(e) If the party or affected person from whom discovery of electronically stored information is sought establishes that the information is from a source that is not reasonably accessible because of the undue burden or expense, the court may nonetheless order discovery if the demanding party shows good cause, subject to any limitations imposed under subdivision (g).

(f) If the court finds good cause for the production of electronically stored information from a source that is not reasonably accessible, the court may set conditions for the discovery of the electronically stored information, including allocation of the expense of discovery.

(g) The court shall limit the frequency or extent of discovery of electronically stored information, even from a source that is reasonably accessible, if the court determines that any of the following conditions exists:

(1) It is possible to obtain the information from some other source that is more convenient, less burdensome, or less expensive.

(2) The discovery sought is unreasonably cumulative or duplicative.

(3) The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought.

(4) The likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.

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(j)

(1) Notwithstanding subdivisions (h) and (i), absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.

(2) This subdivision shall not be construed to alter any obligation to preserve discoverable information.

Cal. Code Civ. Proc. § 2031.320, titled "Motion for order compelling compliance upon failure of responding party to permit inspection, copying, testing or sampling; Sanctions; Exception to sanctions for failure to provide certain electronic information," also contains a "safe harbor" provision:

(d)

(1) Notwithstanding subdivisions (b) and (c), absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.

(2) This subdivision shall not be construed to alter any obligation to preserve discoverable information.

Separately, Cal. Rules of Court, Rule 3.724(b)(1), has been proposed and is expected to be effective January 1, 2010, to provide for meeting and conferring on issues related to e-discovery:

(b) Issues to be considered relating to the discovery of electronically stored information.

If any party informs any other party in writing that the discovery of electronically stored information is reasonably likely to be sought in the proceeding, then at least 45 calendar days before the date set for the initial case management conference, all parties must meet and confer, in person or by telephone, to consider the following:

(1) Any issues relating to the preservation of discoverable electronically stored information;

(2) The form or forms in which information will be produced;

(3) The time within which the information will be produced;

(4) The scope of discovery of the information;

(5) The method for asserting or preserving claims of privilege or attorney work product, including whether such claims may be asserted after production;

(6) The method for asserting or preserving the confidentiality, privacy, trade secrets, or proprietary status of information relating to a party or person not a party to the civil proceedings;

(7) How the cost of production of electronically stored information is to be allocated among the parties; and

(8) Any other issues relating to the discovery of electronically stored information, including developing a proposed plan relating to the discovery of the information.

Delaware
Delaware's civil discovery rules follow the pattern of federal civil discovery rules, but Delaware does not have rules specifically addressing electronically stored information such as federal rule provisions that took effect in December 2006. Discovery of electronically stored information thus is treated in Delaware state courts similarly to discovery of other information. See, e.g., Ryan v. Gifford, 2007 Del. Ch. LEXIS 168 (Del. Ch. Nov. 30, 2007), in which the court granted plaintiffs' motion to compel production of metadata in a stock options backdating case because "the integrity of dates entered facially on documents authorizing the award of stock options is at the heart of the dispute."

The Superior Court of Delaware for New Castle County set up a Complex Commercial Litigation Division, effective May 1, 2010, for administration of complex commercial and business cases involving claims of $ 1 million or more or a choice of court agreement. Case Management Orders for cases assigned to the Division will include procedures for electronic discovery. Guidelines for e-discovery plans to include in the Orders are available here.  


District of Columbia
District of Columbia Superior Court Rules of Civil Procedure are largely identical to pre-December 2006 Federal Rules of Civil Procedure. December 2006 changes to the Federal Rules to account specifically for electronically stored information have not been made to date to the District of Columbia Superior Court Rules.


Florida
An article in the Florida Bar Journal noted: "On January 20, 2006, The Florida Bar Rules of Civil Procedure Committee created a separate subcommittee, headed by Lawrence Kolin, to study proposed changes to the Federal Rules of Civil Procedure regarding electronic discovery, and draft proposed changes to the current version of the Florida Rules of Civil Procedure." Robert H. Thornburg, Electronic Discovery in Florida, Florida Bar Journal (Oct. 2006), at n. 6.

Proposals to revise Florida civil procedure rules to account for electronic discovery remain under consideration. An email address for comments to the Florida Bar’s Civil Procedure Rules Subcommittee on Electronic Discovery has been set up at their website along with background materials.

On May 29, 2009, the Florida Supreme Court adopted amendments to the Florida Rules of Civil Procedure to provide for the designation of certain cases as "complex litigation." In re Amendments to the Fla. Rules of Civ. Procedure - Management of Cases Involving Complex Litigation, 2009 Fla. LEXIS 927 (Fla. May 28, 2009). Rule 1.201(b)(I) provides that prior to the initial case management conference with the court, parties must meet and confer and then report on "the possibility of obtaining admissions of fact and voluntary exchange of documents and electronically stored information, stipulations regarding authenticity of documents, electronically stored information, and the need for advance rulings from the court on admissibility of evidence."

In its May 29, 2009, adoption of complex litigation rules, the Florida Supreme Court noted it was unable to address in a rules case recommendations related to electronic discovery:

2 Other significant recommendations, which the Court is unable to address in a rules case, but which are also extremely significant to the fair, efficient, and effective administration of justice, include several important recommendations related to technology--specifically, e-discovery, electronic data retrieval, e-filing, and a unified statewide case management system. These are: (1) to "develop sound principles for e-discovery practices as statewide court technology systems become upgraded to accommodate electronic filing, indexing, retrieval, storage, etc."; (2) "to strongly encourage and support pursuit of an electronic data system that empowers the courts and their users to access electronic data"; (3) to create an implementation plan to address e-filing and requiring that a "single portal for the submission of electronic court records be developed and implemented"; and (4) to "continue to pursue a unified statewide case management system."

A party served with the written request shall (1) produce the requested documents as they are kept in the usual course of business or organized and labeled to correspond with the categories in the request, and all retrievable information in computer storage in printed form or (2) serve upon the party so requesting written objections on the ground that the request is improper in whole or in part.

Unless otherwise provided in a request for discovery, a request for the production of a "document" or "documents" shall encompass electronically stored information. Any reference in the rules in this division to a "document" or "documents" shall encompass electronically stored information.

A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of rule 1.504(1)(b.) The court may specify conditions for the discovery.

Changes to Iowa's rules to account for electronically stored information are found in Iowa R. Civ. P. 1.503, 1.504, 1.507, 1.509, 1.512, 1.517, 1.602, and 1.1701.


Kansas
Kansas Rules of Civil Procedure mirror electronically stored information procedure included in the December 2006 amendments to the Federal Rules of Civil Procedure. Compare, for example, Fed. R. Civ. P. 26(b)(2)(B) and K.S.A. § 60-226(b)(2)(B). Senate Bill No. 434 was signed into law by the Governor of Kansas in March 2008. The Bill, according to a release from the Governor's Office, "amends the Code of Civil Procedure to include the disclosure and discovery of electronically stored information for use in district court proceedings. These amendments will conform the Kansas Code of Civil Procedure with the amendments made to the Federal Rules of Civil Procedure in 2006."


Kentucky
Kentucky rules follow the pattern of the Federal Rules of Civil Procedure before December 2006 amendments were made to the Federal Rules to account specifically for electronically stored information. See, for example, Ky. CR Rule 34.01 which provides for production of documents, "including … data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form…"


Louisiana
Louisiana Code of Civil Procedure Articles 1424, 1425, 1460, 1461, and 1462 were amended by Acts 2007, No. 140 , effective August 15, 2007, to provide for discovery of electronically stored information through provisions that are parallel to Federal Rules as amended in December 2006. The Louisiana rules were not amended to include the electronic discovery meet and confer or safe harbor provisions of the Federal Rules.

Article 1424

The phrase "electronically stored information" was added to La. Code Civ. Proc. Ann. art. 1424 to include such information within work product and attorney-client privileged materials. According to commentary, Paragraph C added to Art. 1424 adopted language taken from Fed. R. Civ. P. 26(b)(5) relating to the assertion of a privilege during discovery. Paragraph D was added to deal with the problem of inadvertent disclosure of privileged or protected materials that has been exacerbated by the volume of electronically stored information being produced in discovery. The Commentary explains:

Paragraph D states the rule that a privilege should not be considered waived provided a lawyer inadvertently producing privileged material has taken reasonable steps to avoid a waiver and promptly takes action to notify the receiving party that a privilege is being asserted. Upon receiving notice, the receiving party must either return or safeguard the inadvertently disclosed material with the option to assert a waiver. Even without notice of the mistake from the sending party, the receiving party must notify the sending party of the material received if it is clear that it is privileged and inadvertently produced. See Rule of Professional Conduct 4.4(b).

Rule 16 is amended with corresponding amendments to Rules 26, 33, 34 and 37 to address the need for specific treatment of the discovery of electronically stored information. These amendments are taken largely from the 2006 amendments of the Federal Rules of Civil Procedure, which comprehensively address the discovery of electronically stored information. Guidance in the interpretation of the Maine rules may be obtained from the federal amendments, their Advisory Committee's Notes, and cases applying the federal rules.

Onsite inspection of electronically stored information should be the exception, not the rule, because litigation usually relates to the informational content of the data held on a computer system, not to the operation of the system itself. In most cases, there is no justification for direct inspection of an opposing party's computer system.

Absent exceptional circumstances, a court may not impose sanctions under these Rules on a party for failing to provide electronically stored information that is no longer available as a result of the routine, good-faith operations of an electronic information system.

Maryland Rule 2-510(g)(2) describes the procedure to be followed if a person responding to a subpoena to produce electronically stored information contends the information is not readily accessible due to undue burden or cost.


Massachusetts
Massachusetts Rules of Civil Procedure 26 through 37 are patterned after Federal Rules of Civil Procedure 26 through 37 in their pre-December 2006 form when the federal rules had not yet been amended to refer specifically to electronically stored information.

Electronic documents are discoverable in Massachusetts state court cases. Advanced Cable Ties, Inc. v. Hewes, 2008 Mass. Super. LEXIS 350 (Mass. Super. Ct. Oct. 3, 2008)(Although electronic documents generally were discoverable, the court would not permit plaintiff to inspect defendant's personal computers unless plaintiff could present a convincing argument that the computers contained relevant information that could not be obtained by less intrusive means.)

Beginning January 4, 2010, the Massachusetts Superior Court's Business Litigation Session implemented a Discovery Pilot Project. The Project, intended "to address the increasing burden and cost of civil pretrial discovery, particularly electronic discovery," is available on a voluntary basis for an initial one-year period. According to a release from the Superior Court, "the concept of limited discovery proportionally tied to the magnitude of the claims at issue will be the guiding principle" of the Project. Each party "at the beginning of the case" was expected to produce all "reasonably available" documents that support claims or defenses. Then, in assessing proportionality of discovery to be permitted following the initial production, judges and the parties "will consider such factors as the needs of the case, the amount in controversy, the parties' resources, and the complexity and importance of the issues at stake."


Michigan
Michigan Court Rules 2.302, 2.310, 2.313, 2.401, and 2.506 have been amended, effective January 1, 2009, to provide for discovery of electronically stored information similarly to the electronic discovery provisions added to the Federal Rules of Civil Procedure in December 2006. The December 16, 2008, Michigan Supreme Court order adopting the amendments to the Michigan rules can be viewed here.


Minnesota
State civil procedure rules in Minnesota are patterned after the Federal Rules of Civil Procedure. The Minnesota discovery rules were amended, effective July 1, 2007, to adopt electronic discovery provisions similar to those added to the Federal Rules in December 2006. See, for example, Minn. R. Civ. P. 37.05, which provides -- with language identical to Fed. R. Civ. P. 37(f) -- a "safe harbor" from sanctions "for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system."

Click here for more information on the Minnesota Rules of Civil Procedure.


Mississippi
Miss. R. Civ. P. 26 was amended, effective May 29, 2003, to add Rule 26(b)(5) governing discovery of electronic data. Miss. R. Civ. P. 26(b)(5) provides:

(5) Electronic data. To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. If the responding party cannot -- through reasonable efforts -- retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules. If the court orders the responding party to comply with the request, the court may also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.

Any party serving written discovery requests shall, immediately upon the request of the party to whom such discovery is directed, provide the discovery in electronic format in addition to printed format. The means of transmitting electronic discovery may, at the option of the party serving the same, be by disk, CD ROM, or e-mail attachment. The discovery shall be transmitted in a file form as the parties may agree and, absent agreement, in the word processing format under which it was originally created. It shall be the duty of the party requesting electronically formatted discovery to convert the same into any other word processing format. The party requesting discovery in electronic format shall bear all responsibility for scanning the medium of transmission for viruses and other computer dangers. Nothing in this rule shall relieve the party who requested electronically formatted discovery from responding to the printed discovery within the time requirements of Supreme Court Rules. Unless the parties in writing otherwise agree, the submission of electronic responses to written discovery shall not abrogate the requirement to also serve printed responses as required by Supreme Court Rules.

Montana
Amendments to the Montana Rules of Civil Procedure, effective February 28, 2007, adopted electronic discovery rules parallel to federal rules as amended in December 2006. The Court order adopting the Montana amendments can be found here.

The Montana rules generally are patterned after the federal rules, and "the interpretation of the federal rules have persuasive application to the interpretation of the state rules" when the language of the federal rule and the state rule is identical. United States Fidelity & Guar. Co. v. Rodgers, 267 Mont. 178, 182 (Mont. 1994). However, the Montana rules are not all identical to the federal rules. For example, Fed. R. Civ. P. 26(f) provides for a mandatory discovery planning conference among the parties while Mont. R. Civ. P. 26(f) provides for a pretrial discovery conference if ordered by the court upon motion of a party.
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Nebraska
Nebraska has adopted a structure for discovery rules -- Neb. Ct. R. Disc. §§ 6-301 to 6-337 -- that follows the structure of federal discovery rules. Most of the Nebraska structure has been reserved for future developments. Effective July 18, 2008, analogues to Fed. R. Civ. P. 26 through 34 have been adopted in Neb. Ct. R. Disc. §§ 6-326 through 6-334. Sections 6-333 and 6-334 provide for electronic discovery through interrogatories and requests for production of documents in the same manner as the federal rules. Neb. Ct. R. Disc. § 6-334(A) provides for subpoenas to nonparties for discovery, including electronic discovery in subsections (c)(2)(A-B), similarly to Fed. R. Civ. P. 45


Nevada
Specific Nevada provisions for electronic discovery mirroring the December 2006 amendments to the federal rules have not been adopted. However, there are provisions in Nevada for the discovery of "data compilations" and those provisions are similar to pre-December 2006 federal rule provisions. For example, the initial-disclosure provisions in Rule 26(a) of the federal rules, as amended in 2000, are adopted as modified in Rule 16.1(a) of the Nevada rules. Nev. R. Civ. P. 16.1 provides mandatory pretrial discovery requirements, including initial disclosure of "data compilations" while initial disclosure of "electronically stored information" is required by Fed. R. Civ. P. 26(a)(1)(A)(ii) as amended in December 2006. Nev. R. Civ. P. 34(a) provides for production of data compilations from which information can be obtained just as Fed. R. Civ. P. 34(a) provided for production of data compilations prior to December 2006 when the federal rule was amended to provide for production of electronically stored information.


New Hampshire
New Hampshire Superior Court Rule 62(I)(C)(4) provides that at least 20 days prior to the Initial Structuring Conference with the court, the parties must meet and confer regarding "(4) the scope of discovery, including particularly with respect to information stored electronically or in any other medium, the extent to which such information is reasonably accessible, the likely costs of obtaining access to such information and who shall bear said costs, the form in which such information is to be produced, the need for and the extent of any holds or other mechanisms that have been or should be put in place to prevent the destruction of such information, and the manner in which the parties propose to guard against the waiver of privilege claims with respect to such information…"

In New Hampshire Ball Bearings, Inc. v. Jackson, 2009 N.H. LEXIS 29 (N.H. Mar. 18, 2009), the New Hampshire Supreme Court found federal court limitations on electronic discovery "to be both sensible and persuasive."

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New Jersey
New Jersey Court Rules adopted with an effective date of September 1, 2006, provided for electronic discovery similarly to federal rules as amended in 2006.

Rule 4:5B-2 allows case management conferences during which issues related to discovery of electronically stored information would be addressed and resolved in a court order. Rule address

Rule 4:10 concerns pretrial discovery. Rule 4:10-2(a) includes "electronically stored information" within the items that generally may be discovered. Rule 4:10-2(e)(2) provides for the return of inadvertently disclosed materials that are protected by the attorney-client privilege or the work product doctrine. Rule 4:10-2(f) provides: "A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost."

Rule 4:17-4(d) includes electronically stored information within the types of business records that a party answering interrogatories can refer the requesting party to for examination and determination of the interrogatory answer.

Rule 4:18-1(a) includes electronically stored information within the types of documents that may be inspected and tested while Rule 4:18-1(b) provides that a request for production of documents "may specify the form or forms in which electronically stored information is to be produced." Subsections (2) and (3) of Rule 4:18-1(b) provide: "(2) if a request does not specify the form or forms for producing electronically stored information, a responding party shall produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and (3) a party need not produce the same electronically stored information in more than one form."

Rule 4:23-6 provides a "safe harbor" provision: "Absent exceptional circumstances, the 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."

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New Mexico
New Mexico Rules of Civil Procedure for the District Courts were amended, effective May 9, 2009, to include all but three of the provisions for electronic discovery and claims of privilege found in the December 2006 amendments to the Federal Rules of Civil Procedure. See N.M. Dist. Ct. R.C.P. 1-016, 1-026, 1-033, 1-034, 1-037 and 1-045. There are three differences between the federal rules and the New Mexico rules:

1. Regarding handling of privileged documents that have been disclosed inadvertently, Fed. R. Civ. P. 26(b)(5)(B) provides that the party in possession of the disputed information "may promptly present the information to the court under seal for a determination of the claim." N.M. Dist. Ct. R.C.P. 1-026(B)(7)(b) provides instead: "By motion, a receiving party may promptly present the information to the court for in camera review and determination of the claim."
   
2. N.M. Dist. Ct. R.C.P. 1-037 does not contain the "safe harbor" provision added to Fed. R. Civ. P. 37(f) in December 2006, which bars imposition of sanctions for loss of electronically stored information as the result of the routine, good faith operation of an electronic information system.
   
3. Specific limitations of Fed. R. Civ. P. 26(b)(2)(B) on discovery of electronically stored information that is not reasonably accessible because of undue burden or cost are not included in the New Mexico rules; according to Advisory Committee Notes to N.M. Dist. Ct. R.C.P. 1-026, "discovery of electronically stored information should be subject to the same provisions in these rules for motions to compel discovery and motions for protective orders that currently govern the discovery of non-electronic information."

Prior to the preliminary conference, counsel shall confer with regard to anticipated electronic discovery issues. Such issues shall be addressed with the court at the preliminary conference and shall include but not be limited to (i) implementation of a data preservation plan; (ii) identification of relevant data; (iii) the scope, extent and form of production; (iv) anticipated cost of data recovery and proposed initial allocation of such cost; (v) disclosure of the programs and manner in which the data is maintained; (vi) identification of computer system(s) utilized; (vii) identification of the individual(s) responsible for data preservation; (viii) confidentiality and privilege issues; and (ix) designation of experts.

North Carolina
North Carolina has a "business court" to handle cases involving complex and significant issues of corporate and commercial law. Rule 17.1 of the General Rules of Practice and Procedure for the North Carolina Business Court provides for a case management meeting among the parties within 30 days after assignment of the case to the business court. Litigation holds are among the topics to be discussed by the parties. The parties also must review possible cost-shifting for electronic discovery and the availability of information from alternate sources at reduced costs. Topics for discussion also include the format for production of electronic data and protocols for production of metadata. The case management meeting is followed by a report and a conference with the court after which the court will issue a case management order. The business court otherwise applies the North Carolina Rules of Civil Procedure.

In a case of first impression, the North Carolina Business Court used a "straightforward application" of N.C. R. Civ. P. 26 to decide that "inaccessible" data should be produced and that the costs of production should be divided evenly between the two sides in the litigation. Analog Devices, Inc. v. Michalski, 2006 NCBC LEXIS 16 (N.C. Super. Ct. Nov. 1, 2006).

While North Carolina's rules of civil procedure are patterned after federal rules, North Carolina has not adopted provisions similar to the 2006 amendments to the federal rules providing specifically for electronic discovery. North Carolina Rule of Civil Procedure Rule 34(a) includes within the scope of discovery "data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form." That provision is similar to Fed. R. Civ. P. 34 in its form prior to 2006.

An Electronic Discovery Study Committee of the North Carolina Bar Association has proposed amendments to North Carolina Rules of Civil Procedure 16, 26, 33, 34, 37, and 45. The October 1, 2008, version of the suggested amendments includes a unique provision in N.C. R. Civ. P. 26(b)(1) that excludes metadata from electronically stored information subject to discovery under the North Carolina rules unless otherwise agreed by the parties or ordered by the court:

For purposes of these rules regarding discovery, electronically stored information does not include metadata unless the parties agree otherwise or the court orders otherwise upon motion by a party and a showing of good cause for the production of metadata.

The proposed amendments to the North Carolina rules otherwise include 2006 provisions of the federal rules concerning electronic discovery such as the "safe harbor" provision of Fed. R. Civ. P. 37(e) – suggested as a new N.C. R. Civ. P. 37(c) -- barring sanctions for failure to produce records lost due to routine, good-faith operation of an electronic information system.

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North Dakota
North Dakota Rules of Civil Procedure are patterned after the Federal Rules of Civil Procedure. Effective March 1, 2008, North Dakota adopted amendments to its rules that mirrored the December 2006 amendments to the federal rules to address electronic discovery.

Click here to access the North Dakota Rules of Civil Procedure


Ohio
Ohio adopted amendments, effective July 1, 2008, to its Rules of Civil Procedure that parallel amendments to the Federal Rules of Civil Procedure in 2006 to provide specifically for electronic discovery. The Supreme Court of Ohio described the amendments as follows:

The Supreme Court recommends amendments to several Rules of Civil Procedure to accommodate discovery of electronically stored information. The United States Judicial Conference, after extensive work and public comment finalized and the U.S. Supreme Court approved amendments to the Federal Rules of Civil Procedure that were effective in December 2006. Although based upon the federal rules, the amendments differ from them in order to accommodate differences in practical application in Ohio. For example, under the federal rules parties take part in a meeting prior to the first pretrial conference and jointly produce an extensive case management plan. The current Ohio rules do not require this process.

The key amendments recommended are as follows:

• Civ. R. 16 (pretrial procedure) is amended to clarify that issues related to electronically stored information are appropriate topics for resolution during pretrial conferences.
  
• Civ. R. 26 (general provisions governing discovery) is amended to clarify that discovery of electronically stored information is permitted. The amendments establish that a party is not required to produce electronically stored information if the production is too burdensome or costly as is the case with traditional discovery. The amendments establish a procedure that must be followed when a party withholds documents, including electronically stored information, based upon privilege and provide a mechanism for retrieving inadvertently produced documents from an opponent.
  
• Civ. R. 33 (interrogatories to parties) is amended only to restructure the rule. Earlier amendments withdrawn by the Commission would have clarified that the time for responding to requests for admission does not begin to run until the party from whom discovery is sought receives both an electronic and paper copy of the requests. However, in light of comments received the Commission recommended withdrawing those amendments from the Court's consideration.
  
• Civ. R. 34 (production of documents) is amended to expressly state that discovery of electronically stored information is governed by this rule. Amendments to the rule also allow a requesting party to specify the form or forms in which electronically stored information should be produced and allow a party responding to a request to articulate its objection to the requested form or forms requested.
  
• Civ. R. 36 (requests for admission) is amended much like Civ. R. 33 above.
  
• Civ. R. 37 (failure to make discovery; sanctions) is amended to provide factors a judge should consider in determining sanctions when a party has destroyed potentially relevant electronically stored information.
  
• Civ. R. 45 (subpoena) is amended to specify that a subpoena may be used to obtain electronically stored information from nonparties. The proposed amendments are similar to those discussed in Civ. R. 34 regarding discovery of electronically stored information from parties. If the nonparty believes the form specified in the subpoena is unduly burdensome or costly they can seek relief under Civ. R. 45(D)(3). This division also outlines the procedures and standards when a person moves to quash or otherwise objects to a subpoena.

The Ohio Rules of Civil Procedure may be accessed here.


Oklahoma
Oklahoma has not amended its rules of civil procedure to include provisions comparable to the 2006 amendments to the Federal Rules of Civil Procedure related to electronic discovery. The Oklahoma Discovery Code, O.S. §§ 3224 through 3237, follow the pattern of pre-2006 federal rules. For example, O.S. § 3234 includes within the types of documents that may be requested "other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form."

Issues related to discovery of electronic information may be resolved through reference to discovery rules applicable to all types of information. See, e.g., Farmers Ins. Co. v. Peterson, 2003 OK 99 (Okla. 2003), in which the Oklahoma Supreme Court rejected a request requiring review of 600,000 paper and electronic files as burdensome and directed the trial court to consider whether discoverable information sought from the files could be obtained by use of a statistical sampling method without the actual examination of each file.


Oregon
Oregon has not amended its rules of civil procedure to include provisions comparable to the 2006 amendments to the Federal Rules of Civil Procedure related to electronic discovery. The Oregon Rules of Civil Procedure mirror pre-2006 federal rules. See, for example, ORCP 43A, which includes within documents that may be requested "data compilations from which information can be obtained and translated, if necessary, by the respondent through detection devices into reasonably useable form."

The Oregon Council on Court Procedures, which considers and submits amendments of rules of civil procedure to the Oregon Legislature for approval, did not address rules specifically relating to electronic discovery during its 2007-2009 Biennium. See Leroy J. Tornquist & Christine R. Olson, A Last Vestige of Oregon's Wild West: Oregon's Lawless Approach to Electronically Stored Information, 45 Willamette L. Rev. 161 (Winter 2008).


Pennsylvania
Pennsylvania has not adopted changes to its rules of civil procedure analogous to the changes made in 2006 to federal rules relating to electronic discovery. However, electronic records are subject to discovery in Pennsylvania state actions to the same extent as non-electronic records. Rule of Civil Procedure 4009.1 includes within discoverable documents "electronically created data, and other compilations of data from which information can be obtained, translated, if necessary, by the respondent party or person upon whom the request or subpoena is served through detection or recovery devices into reasonably usable form…"


Rhode Island
Rhode Island Rules of Civil Procedure follow the same pattern as federal rules but do not contain provisions for electronic discovery added in amendments during 2006 to federal rules. R.I. R. Civ. P. 34, similarly to pre-2006 Fed. R. Civ. P. 34, includes "data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form" within documents subject to a request for production.


South Carolina
South Carolina Rules of Civil Procedure follow the same pattern as federal rules but do not contain provisions for electronic discovery added in amendments during 2006 to federal rules. S.C. R. Civ. P. 34, similarly to pre-2006 Fed. R. Civ. P. 34, includes "data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form" within documents subject to a request for production.

On May 14, 2009, the South Carolina Bar House of Delegates approved a request from the Bar's Practice and Procedure Committee to suggest adoption by the South Carolina Supreme Court of electronic discovery rules analogous to 2006 amendments to federal rules relating to electronic discovery.


South Dakota
South Dakota's Rules of Civil Procedure follow the same pattern as federal rules but do not contain provisions for electronic discovery added in amendments during 2006 to federal rules. S.D. Codified Laws §15-6-34, similarly to pre-2006 Fed. R. Civ. P. 34, includes "data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form" within documents subject to a request for production.


Tennessee
Effective July 1, 2009, the Tennessee Supreme Court adopted amendments to Tennessee Rules of Civil Procedure "pertaining to the discovery of electronically stored information." The Tennessee rules are analogous to federal rules as amended in 2006 relating to electronic discovery. Tennessee's rules of civil procedure with Advisory Commission notes explaining amendments in 2009 relating to electronic discovery are available here.


Texas
Texas Rules of Civil Procedure §§196.3 and 196.4 address electronic data. The Texas Supreme Court in In re Weekley Homes, L.P., 2009 Tex. LEXIS 630 (Tex. 2009), described procedure to be followed in Texas for the discovery of electronic information under §§196.3 and 196.4.

According to the Court, Texas had not amended its rules of civil procedure to mirror federal rules as amended in 2006 to account for electronic discovery. However, "our rules as written are not inconsistent with the federal rules or the case law interpreting them."

The Court stated that "[a] fundamental tenet of our discovery rules is cooperation between parties and their counsel." After advising parties and their counsel to learn early on in litigation about each other's electronically stored information systems, the Court summarized the proper procedure for electronic discovery under Tex. R. Civ. P. 196.4:

-- the party seeking to discover electronic information must make a specific request for that information and specify the form of production. TEX. R. CIV. P. 196.4.

-- the responding party must then produce any electronic information that is "responsive to the request and . . . reasonably available to the responding party in its ordinary course of business." Id.

-- if "the responding party cannot -- through reasonable efforts -- retrieve the data or information requested or produce it in the form requested," the responding party must object on those grounds. Id.

-- the parties should make reasonable efforts to resolve the dispute without court intervention. TEX. R. CIV. P. 191.2.

-- if the parties are unable to resolve the dispute, either party may request a hearing on the objection, TEX. R. CIV. P. 193.4(a), at which the responding party must demonstrate that the requested information is not reasonably available because of undue burden or cost, TEX. R. CIV. P. 192.4(b).

-- if the trial court determines the requested information is not reasonably available, the court may nevertheless order production upon a showing by the requesting party that the benefits of production outweigh the burdens imposed, again subject to Rule 192.4's discovery limitations.

-- if the benefits are shown to outweigh the burdens of production and the trial court orders production of information that is not reasonably available, sensitive information should be protected and the least intrusive means should be employed. TEX. R. CIV. P. 192.6(b). The requesting party must also pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information. TEX. R. CIV. P. 196.4.

-- finally, when determining the means by which the sources should be searched and information produced, direct access to another party's electronic storage devices is discouraged, and courts should be extremely cautious to guard against undue intrusion.

Utah
Utah's Rules of Civil Procedure parallel the Federal Rules of Civil Procedure. Utah's rules were amended, effective November 1, 2007, to adopt the changes made to federal rules in December 2006 to account for electronic discovery. The Utah Rules of Civil Procedure are available here .


Vermont
Vermont has amended its rules of civil procedure, effective July 6, 2009, to conform to the 2006 amendments to the Federal Rules of Civil Procedure providing for discovery of electronically stored information. Vermont has a continuing goal to "retain the basic uniformity between state and federal practice," according to Reporter's Notes that accompanied the 2009 amendments to the Vermont Rules of Civil Procedure to account for electronic discovery.

The 2009 amendments and the Reporter's Notes are available here .


Virginia
The following Virginia Rules for civil cases in the circuit courts were amended effective January 1, 2009, to provide for electronic discovery:

Va. Sup. Ct. R. 4:1. General Provisions Governing Discovery;

Va. Sup. Ct. R. 4:4. Stipulations Regarding Discovery;

Va. Sup. Ct. R. 4:8. Interrogatories to Parties;

Va. Sup. Ct. R. 4:9. Production by Parties of Documents, Electronically Stored Information, and Things; Entry on Land for Inspection and Other Purposes; Production at Trial;

Va. Sup. Ct. R. 4:9A. Production from Non-Parties of Documents, Electronically Stored Information, and Things and Entry on Land for Inspection and Other Purposes; Production at Trial; and

Va. Sup. Ct. R. 4:13. Pretrial Procedure; Formulating Issues.

A copy of the October 31, 2008, Order of the Supreme Court of Virginia amending the Virginia Rules is available here .


Washington
Washington's Superior Court Civil Rules have the same structure as the Federal Rules of Civil Procedure, but Washington has not amended its civil rules to include provisions for electronic discovery parallel to the electronic discovery provisions added to the federal rules in 2006.

By a Memorandum dated July 8, 2009, the Court Rules and Procedures Committee of the Washington State Bar Association recommended that the Board of Governors of the Bar should submit court rule amendments to the Washington Supreme Court for consideration. Amendments to CR 26, 33, 34, 37 and 45 would conform those rules "where appropriate, to the 2006 federal amendments dealing specifically with the challenges posed by the discovery of electronically stored information." A new Washington Evidence Rule 502 would parallel Fed. R. Evid. 502 to provide standards for dealing with inadvertently disclosed privileged material. The Memorandum, which includes analysis and comments on the proposed rule changes, is available here . A September 8, 2009, follow-up on the proposed rule changes from the Committee to the Board of Governors is available here .

The Washington Supreme Court has established a cycle for review of rules under which the civil procedure rules will be reviewed in 2011-2012.

There presently are Washington rules under which electronic discovery may be sought. Washington Court Rule 34 thus provides for production of documents that are defined to include "data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form."


West Virginia
West Virginia's Rules of Civil Procedure have the same structure as the Federal Rules of Civil Procedure, but West Virginia has not adopted provisions for electronic discovery added to the Federal Rules in 2006. W.Va. R. Civ. P. 34, similarly to pre-2006 Fed. R. Civ. P. 34, includes within documents subject to production "data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form."


Wisconsin
On April 23, 2009, the Wisconsin Judicial Council filed a petition with the Wisconsin Supreme Court, In re: Proposed Amendments to Wisconsin Statutes 802.10, 804.08, 804.09, 804.14 and 805.07 (Electronic Discovery), regarding amendments to Wisconsin's statutory civil procedure rules that would generally adopt electronic discovery provisions contained in December 2006 amendments to the Federal Rules of Civil Procedure. On January 21, 2010, the Wisconsin Supreme Court held a public hearing on the petition. A video recording of the hearing is available here  under the heading 01.21.10 | State Supreme Court Open Administrative Conference and Rules Hearing.

The Memorandum of the Wisconsin Judicial Council in support of its Petition describes the proposed rule changes and compares the proposed rules with federal electronic discovery provisions. The Memorandum is available for review here . An amended Petition of the Wisconsin Judicial Council, submitted March 19, 2010, is available for review here  . According to minutes of a March 19, 2010, meeting of the Judicial Council (available at here ), the Supreme Court at an administrative conference following the January 21, 2010, public hearing "requested that the Council file an amended petition to incorporate language more closely mirroring three of the federal discovery rules, and adding Judicial Council Notes containing the Federal Advisory Committee Notes." The minutes also state that the Court "suggested that the Council reconsider a rule regarding discovery conferences."

Wyoming
The Wyoming Rules of Civil Procedure are modeled on the Federal Rules of Civil Procedure. As amended effective July 1, 2008, the Wyoming Rules contain provisions for electronic discovery parallel to Federal Rules as amended in 2006. Wyo. R. Civ. P. 37(f), for example, contains "safe harbor" language identical to Fed. R. Civ. P. 37(e): "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."