When discovery first met the “e-“ that precedes it today, it fell upon trial judges nationwide to figure out how to harmonize primordial sources of electronically stored information (ESI) with traditional discovery rubrics—essentially, how to fit a round peg into a square hole. However, the landscape has adapted. Today, state and federal rulemaking bodies have formed a constellation of e-discovery frameworks that play a paramount role in civil litigation.
Origins of e-discovery rulemaking in the U.S.
Early Cooperation. Different states impose different requirements on practitioners regarding what communication is required prior to their initial discovery conference with the court. Some states follow the federal approach, mandating parties to meet and develop a proposed discovery plan that addresses format of production and discovery of ESI.
Other states (Arizona, for example) only require early discussion in complex cases , cases within the purview of business courts, or pursuant to court order. The Sedona Conference’s “Cooperation Proclamation” is one of many sources that urge legal practitioners to become familiar with opposing counsel – or at least their ESI.