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Wisconsin “De-claws” eDiscovery Rules

by on August 11, 2010


Following the lead of the federal courts, the states have begun to put on their books procedures for handling the discovery of electronically stored information in legal proceedings. What’s interesting about what the states are doing is how much of the federal guidelines they are adopting and what they choose to discard.

Discovery One of the latest states to put such procedures in place is Wisconsin, whose Supreme Court a few months back adopted a petition from the state’s Judicial Council to incorporate elements of the federal rules on eDiscovery into the state’s law.

Although approving most of the recommendations of the council, the court didn’t buy into a suggestion to deviate from the federal rules and not require mandatory meet and confer sessions to discuss the scope and cost of eDiscovery prior to engaging in it. One concern about that requirement was that it would increase the cost of discovery overall by requiring eDiscovery meetings in cases where eDiscovery wasn’t an issue.

Certain kinds of cases have been carved from the federal requirements on mandatory eDiscovery meetingsadministrative reviews of social security disability and government collection actionsbut no exceptions have been included in the Wisconsin rules, although there are proponents for such exceptions in small claims cases, mortgage foreclosures and paternity suits.

A federal provision omitted from Wisconsin’s rules is the co-called “claw back” option. That allows a party who inadvertently releases privileged information to still claim it is protected material. Reportedly the council left claw back out of its recommendation because it violates the state’s existing rules of evidence.

Neither the federal or state rules address the quantity of information that can be requested in a case. That is already becoming a method exploited by some lawyers to encourage the settlement of cases. Reviewing great quantities of electronic documents can be very time consuming and costly.

According to the Wisconsin Law Journal, the state Supreme Court will be holding a public hearing this fall to consider modifications of its rules before they take effect in January.

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