Ride the Lightning

Why Are Some States Reluctant to Adopt E-Discovery Rules?

January 22, 2013

I was asked this question on Twitter by @ESIdatabase (Alejandro Mercado) of Electronic Resource Database. He counted 10 states without e-discovery rules – I thought there were nine, but then my math skills are always suspect.

He asked for academic thoughts, which he is more likely to get from the venerable Ralph Losey and Josh Gilliland, to whom he also addressed the question.

I certainly cannot speak for any of the states which have not yet adopted e-discovery rules. However, I have heard remarks in my travels which may shed some light. They go something like this:

• The rules we have in our state work just fine, thank you very much – we don't need the federal courts telling us what to do.
• We'll think about it (the thinking process usually takes some years and involves a great many committees).
• The federal e-discovery rules have already been outpaced by technology and events.

It is clear that all states need some form of e-discovery rules and that most will chose, in large part, to follow the federal model.

Some more academic illumination may be found in an article written by Thomas Allman last year. Ultimately, I think all the states will have these rules, but as we all know, states are jealous of their authority over their own judicial systems and will move at the pace that suits them.

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