General Background
Since the 2006 changes to various Federal Rules of Civil Procedure to address ESI, the WSBA’s Court Rules and Procedures Committee has considered whether Washington should consider similar amendments and, if so, what the amendments should be. This ongoing effort has involved the study of not only the federal amendments and their related Advisory Committee Notes, but also a sampling of information and testimony from the federal amendment process, such secondary materials as the National Conference of Commissioners on Uniform State Laws’ “Uniform Rules Relating to The Discovery of Electronically-Stored Information.” This effort has also included surveying information relating to the efforts of other states to address ESI or so-called “e-discovery,” including other states’ amendments to their rules. The vast majority of states have now adopted rule amendments to address ESI.
During the course of its efforts, the Committee has actively solicited the input of a number of stakeholder groups, including the Washington State Association for Justice (formerly the Washington State Trial Lawyers Association), Washington Defense Trial Lawyers, Washington State Association of Municipal Attorneys, Washington Association of Prosecuting Attorneys, WSBA Litigation Section, Superior Court Judges’ Association, and various non-profit organizations within the Access to Justice community. The Committee has benefitted from the input of representatives of those groups and from others.
Building on that foundation, in 2009, the WSBA Court Rules and Procedures Committee suggested amendments to CR 26, 33, 34, 37 and 45 to conform, where appropriate, to the 2006 federal ESI amendments. By conforming where possible to the federal rules, the WSBA Court Rules and Procedures Committee believed parties and courts in Washington would be able to refer to and rely on federal authority and scholarship in dealing with e-discovery issues.
At the September 2009 meeting, the Board of Governors declined to recommend the package of proposed changes to CR 26, 33, 34, 37 and 45. The Board of Governors asked the WSBA Court Rules and Procedures Committee to work with the ATJ to develop new proposals addressing ESI for specific rules.
In 2012, these efforts produced a proposed revision to CR 34 submitted by the Board of Governors. That update to CR 34 was ultimately adopted and became effective September 1, 2013. The Washington Civil Rules now address ESI in CR 34 but do not yet address ESI in other rules.
Over the past two years, the Committee has continued to work on other potential rule revisions to address ESI, including potential revisions to CR 33. In 2014, the Committee solicited input from numerous stakeholders and interested groups concerning a potential revision to CR 33. The Committee considered and evaluated the input received before recommending this proposed rule.
