Connecticut state court judges recently adopted new electronic discovery rules. The rules will become part of the Connecticut Practice Book for civil discovery and take effect on January 2, 2012.
The judges present at the annual meeting unanimously adopted the new electronic discovery rules. You can read the new e-discovery rules here. I removed the sections not relevant to civil cases. The new rules or modifications are indicated by the underlined portions of the rule.
Here is a quick hit list, and my brief commentary, of the new e-discovery rules in Connecticut state courts:
- Definitions of electronic and electronically stored information (ESI) added to the list of definitions. The new definitions are intentionally broad to adapt to new technology changes.
- Grounds to move for a protective order in discovery include the terms and conditions of discovery of ESI and the allocation of costs between the parties. This rule permits the court to take into account a series of factors in fashioning a protective order and cost shifting for discovery of ESI.
- Litigants should be disclosing ESI that is readily accessible and likely to lead to the discovery of admissible evidence. This basically clarifies that reasonably accessible ESI is no different than other types of discovery.
- Whether a litigant needs to disclose ESI that is not reasonably accessible will depend on a variety of factors that the court may consider.
- Court can shift the costs of production for ESI.
- ESI added to the list of information a party can demand to inspect.
- Safe harbor from sanctions for not only ESI, but all information, that is lost if the information is lost as the result of routine, good faith operation of a system or process in the absence of showing of intentional actions designed to avoid known discovery obligations. This rule is based on the federal rule 37(f) safe harbor and the commentary indicates that good faith may require a party to stop or intervene a routine destruction policy.
- Claw back provisions permit a party to notify an opponent of inadvertently disclosed privileged information. There is a procedure the party must follow upon receipt of the notice. The rule does not address issues of waiver of privilege by the inadvertent disclosure.
Until Connecticut courts interpret these provisions, a good resource for attorneys may be found in the commentary to the rules. Additionally, the new rules are based on the Uniform Rules Relating to the Discovery of ESI adopted by the National Conference of Commissioners on Uniform State Laws in 2007. There are various courts in other states that have interpreted these rules.