On June 6, 2012, the Pennsylvania Supreme Court entered an order amending the Pennsylvania Rules of Civil Procedure for production of documents and things, 4009.1, et seq. and 4011, to provide for discovery of “electronically stored information.” The amendments take effect on August 1, 2012. Specifically, the term “electronically stored information” has replaced the prior language in Rule 4009.1 referring to “electronically created data . . .” The amendments to Rule 4009.1 further provide that the party requesting electronically stored information may specify the format in which it is to be produced. However, the party or non-party to whom the request is directed has the right to object to the request. If no format is specified by the requestor, the electronically stored information is to be produced in the form in which it is ordinarily maintained or in a reasonably usable form. Additionally, an explanatory note has been added to Rule 4009.11 which states that a request for electronically stored information “should be as specific as possible.” The note further places emphasis on limitations as to time and scope, and favors agreements between the parties. Rules 4009.12, 4009.21, 4009.23, and 4011 were amended to include a note referencing the changes to Rule 4009.1.
The term “electronically stored information” is also found in the Federal Rules of Civil Procedure, but the Supreme Court has cautioned that the change in language to Rules 4009.1 et seq. are not intended to incorporate the federal interpretation of the term. Rather, in Pennsylvania, discovery of “electronically stored information” will continue to be governed by the traditional principles of proportionality, i.e., the just, speedy and inexpensive determination and resolution of litigation disputes. Thus, in the event of a discovery dispute, this proportionality standard requires the courts to consider (i) the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake; (ii) the relevance of electronically stored information and its importance to the court’s adjudication in the given case; (iii) the cost, burden, and delay that may be imposed on the parties to deal with electronically stored information; (iv) the ease of producing electronically stored information and whether substantially similar information is available with less burden; and (v) any other factors relevant under the circumstances.
Healthcare providers must keep in mind that producing “electronically stored information” during discovery is about more than printing off copies of email messages – it is the entire process of accessing, using and preserving information, data, and records created or maintained in electronic form and can be extremely costly. For a healthcare provider, discovery of electronic data could involve the process of identifying and validating the identity of every user of a patient’s electronic medical record. It can also involve searching and analyzing the data behind the data, known as “metadata.”
The Supreme Court, in maintaining the proportionality standard, has specifically recognized that not all electronic information is reasonably accessible and may be costly to produce. Thus, there is an exception to production of electronically stored information that would relieve a party from having to disclose electronically stored information that is not “reasonably accessible,” that is, information that would be costly and burdensome to produce. If this objection is raised; however, the healthcare provider and/or its lawyer must be able to explain why certain data is not reasonably accessible and then document the true cost and burdens of producing the data being requested.