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Wisconsin Law Quarterly

Welcome to the second quarter edition of Wisconsin Law Quarterly. To view the issue, please click here.

Electronic discovery has become a hot topic among practitioners given the ever increasing amount of information stored electronically. The issue recently became a hot topic for the Wisconsin Supreme Court as well when it received and approved a petition which would amend and create statutes (scheduled to go into effect January 1, 2011) that confront the issues created by such electronically stored information during the discovery process. Among the most significant changes are a discovery conference provision, a safe harbor provision, and rules concerning the form in which electronically stored information must be produced during discovery.

Under the proposal, based on a party’s motion or the court’s own motion, the court may order the parties to confer regarding discovery issues including the subjects of discovery, the timing of discovery, the methods for asserting privileges or agreeing to protective orders, and special issues concerning electronically stored information including preservation and form of production. While the Judicial Council recommended a provision which left such conferences in the discretion of the court or the parties, the Supreme Court actually voted 5-2 to include a provision which would make such conferences mandatory. However, this issue is still undecided at this time as the court is holding public hearings in the fall to reconsider the issue.

Also, a safe harbor provision would be created which prohibits the imposition of sanctions against a party if a party fails to produce electronically stored information lost as a result of routine operation of a system, such as a server crash. Various statutory provisions would also be created or amended which specify that the requesting party may dictate the form in which such electronically stored information is to be produced. Alternatively, should the requesting party not specify the form, the producing party must produce the electronically stored information in the form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

While previously electronically stored information was subject to the same default discovery rules as paper documents, these new rules will provide some guidance to counsel and parties regarding the specific rules which apply to electronically stored information.