Esi Comes to the K.s.a.: Kansas Adopts Federal Civil Procedure Rules on Electronic Discovery by J. Nick Badgerow
| Jurisdiction | Kansas,United States,Federal |
| Citation | Vol. 77 No. 7 Pg. 30 |
| Pages | 30 |
| Publication year | 2008 |
July, 2008
State court practitioners who thought that they had no need to immerse themselves in electronic discovery rules no longer have that luxury. As of July 1, a client's electronically stored information is discoverable in Kansas state civil cases, as it has been since 2006 in federal court cases.
Specific rules applicable to the discovery of electronic information in civil cases have now been enacted in Kansas. Continuing in its effort to keep the Kansas Code of Civil Procedure abreast of the Federal Rules, and in recognition of technological changes in the 21st century, the Kansas Legislature adopted amendments to the Kansas Code,[1] effective July 1,[2] governing the discovery of electronically stored information (ESI). This article will provide some background and summarize the key changes brought about by the adoption of the bill.[3]
II. Kansas Typically Follows the Federal Rules of Civil Procedure
Since the adoption of the 1963 overhaul of the rules of civil procedure in Kansas, those rules have been cousins, if not identical twins, to the Federal Rules of Civil Procedure.[4] In the absence of binding Kansas appellate authority on a particular point, having the Kansas Code follow the Federal Rules so closely has been helpful to Kansas practitioners and judges in interpreting federal cases and applying the comparable Federal Rule.[5]
As the Court of Appeals stated in Baumann v. Excel Industries Inc.:
Federal court decisions interpreting the federal code of civil procedure are highly persuasive in applying the Kansas Code of Civil Procedure, which is based on the federal code. See Stock v. Nordhus, 216 Kan. 779, 782, 533 P.2d 1324 (1975).[6]
Thus, as the Federal Rules have developed and evolved over the years, the Kansas Judicial Council has striven to keep up, and to recommend changes to the Legislature, which would maintain the similarity between the state and federal codes of civil procedure.[7]
This is not to say that Kansas slavishly follows every change brought about in the Federal Rules, or that the independence by which Kansas is known somehow exists everywhere but in the Code of Civil Procedure. Indeed, there are notable departures from the Federal Rules in the Kansas Code, and several distinct Kansas procedural rules, which were not derived from the Federal Rules.[8]
However, to a large extent, the Kansas civil procedure rules very closely follow the Federal Rules, and maintaining that consistency —when suitable for the citizens, litigants and courts of this state —is beneficial. As the Kansas Supreme Court has stated:
III. Electronically Stored Information is Real, Substantial, and Now DiscoverableKansas courts often look to the case law on the federal rules as guidance for interpretation of our own rules, as the Kansas rules of civil procedure were patterned after the federal rules. See Stock v. Nordhus, 216 Kan. 779, 782, 533 P.2d 1324 (1975) (noting that the Kansas courts have traditionally followed the interpretation of federal procedural rules and that the federal case law is highly persuasive.)[9]
It is no secret that "The Electronic Age" has brought about very significant changes in the manner and method by which information is created, communicated, and stored. The ease with which information can be created has caused an explosion in the amount of information being created.
Almost 800 megabytes of recorded information is produced per person each year, 92 percent of which is in magnetically stored form, on computers or computer storage media. To visualize this amount of information, it would take about 30 feet of books to store the equivalent of 800 MB of information on paper.[10]
Thus, if 92 percent of the information produced by each person is electronic, and one seeks only paper documents in discovery, only 8 percent of the existing information may be obtained. Not only is the electronic information easy to create, it is also very easy to store —in very great volumes.
Electronically stored information (ESI) is remarkable due primarily to its volume; a standard desktop computer can store the equivalent of 40,000,000 typewritten pages of information. New desktop hard drives have been developed that hold a terabyte of data. As printed text, a terabyte would occupy 100 million reams of paper (made from 50,000 trees).[11]
A diligent lawyer must seek discovery of information maintained in an electronic format, in order to obtain what is out there. Once ESI is produced, there are significant benefits to having the information in electronic form. First, the "soft" or electronic version of the "document" may well reveal information not reflected in a "hard" or paper copy of the document. That information can include contextual information,[12] as well as underlying electronic footprints or "metadata,"[13] which would not be revealed by a printout of the same document.[14]
Second, having discovery documents in electronic format helps lawyer and client to review, search, organize, categorize, and store the information produced. ESI can be stored in a very small, portable form, and thus easily transported. It can be sent to others very easily and quickly. It can be reviewed on screen and organized in useful ways. And, searching for specific authors or subjects is markedly easier when the information is electronically stored.[15]
What is ESI? Essentially, the term covers any type of information which has been created, or is stored, in magnetic, electronic, or digital form. The Committee Note to the amended Federal Rule 34(a) notes that the discovery of "electronically stored information" is intended to "stand on equal footing with the discovery of paper documents," and is a term expansive enough to cover "all current types of computer based information, and flexible enough to encompass future changes and developments."[16]
Despite the prevalence of ESI, one might ask why the Kansas Code of Civil Procedure must be amended in order to address it. Could not the issue of ESI be addressed on a case-by-case basis? Could not each of the 31 districts in Kansas adopt rules of their own on the subject? Of course, the answer is that uniform rules of practice and procedure help all parties and counsel (as well as the courts) to practice in a uniform manner. Further, having a single set of rules applicable to all civil cases helps in the development of a body of law, which will guide and help courts, counsel, and litigants as that body of law develops. Finally —as noted above —having a uniform code based on the federal rules will provide a body of federal case law, which will assist in the interpretation of the Kansas Code. As noted by the Administrative Office of the U.S. Courts, in justifying the ESI changes adopted by those courts:
One study found that the cost of discovery...
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