50 States: Civil Procedure Rules in State Court – Part 2

Cue the fanfare…The new and improved rules map is here!

This spring, we worked to update our state ediscovery rules map – looking at each state’s civil procedure rules and how they approach ediscovery. Want to know which states have already adopted the 2015 Federal Rules of Civil Procedure (FRCP) amendments? Which states are still following the 2006 FRCP language relating to ediscovery? What states don’t have any ediscovery provisions whatsoever?

We looked at each of the 50 states (plus the District of Columbia), classifying them into five color-coded areas:

• A pink state has substantially adopted the 2015 FRCP Amendments. There are three pink states: Arizona, Colorado and Wyoming.
• A yellow state is actively taking on or considering new rules: either a version of the FRCP or its own. There are four yellow states: Florida, Kansas, Mississippi and Oklahoma.
• A blue state has adopted and continues to follow the 2006 FRCP Amendments. There are 27 blue states, which includes every state not listed in another category.
• A green state marches to the beat of its own drum, using unique language and standards. There are 14 green states: Connecticut, Delaware, Georgia, Illinois, Missouri, Nebraska, Nevada, New Hampshire, New York, Pennsylvania, Rhode Island, Texas, Utah and Washington.
• A grey state signifies that the state has no ediscovery rules in place at this time. There are three grey states: Kentucky, South Dakota and West Virginia.

With so many jurisdictions, we want you to know the restrictions. From Hawaii to Virginia and Florida to Oregon, click each state to view its pertinent statutes and rules, along with suggestions for further reading about that state’s ediscovery protocols.

Ediscovery Rules & Statutes (Not Just a Pretty Map)

As we shared with you in our first blog on the 50 states of ediscovery, it has been a while since our map was updated. Some states made drastic changes, while others were happy with their own status quo. What happened in your state? Here is just a sample of what you will find.

Colorado Climbs Onboard

The Rocky Mountain State changed from grey to pink in 2015 when it adopted the then-upcoming FRCP amendments of the same year. A couple small differences remain: Colorado’s version reads Rule 26 in conjunction with Rule 1 to “secure the just, speedy, and inexpensive determination of every action.” Also, its Rule 37 does not mirror the FRCP.

Connecticut Calls its Own Shots

Some states adopted the 2015 FRCP, some did not and still others came up with their own version. Connecticut did all three, which earned it a swap from blue to green on our map. While Connecticut adopted the 2015 FRCP’s proportionality language, its sanctions wording is similar to that of the FRCP’s 2006 version. Interestingly, the state also includes an ethical requirement of “technological competence” as part of an attorney’s obligation to keep up with changes in the practice of law.

Illinois Gets Ahead of the Game

Illinois’ motto is "State Sovereignty, National Unity" and that sentiment is certainly reflected in its state Rules of Civil Procedure. Its many unique ediscovery provisions means it changed from yellow to green on our map. Illinois shares the FRCP’s emphasis on proportionality, with the state’s committee commenting that this amendment was added primarily to address the discovery of ESI. Illinois’ rules go even further by creating a list of ESI that should not be discoverable due to difficulty, but keeps its eye on the horizon by emphasizing flexibility as technology continues to advance.

Oklahoma: Amendments on the Horizon

Oklahoma adopted the 2006 FRCP in 2010. In early 2017, the state legislature proposed amendments to adopt the 2015 FRCP's proportionality language and those amendments are still pending. Statute §12-3225 drops "liberally construed" and adds "construed, administered, and employed by courts and parties to secure" the just, speedy and inexpensive determination of action to mimic FRCP Rule 1. Its §12-3226 proposal mirrors the 2015 FRCP Rule 26(b) with one exception: it retains the phrase "reasonably calculated" just before the "relevant and proportional" wording. These proposed changes are enough to bump Oklahoma’s color from blue to yellow.

While the 50 states have rules almost as diverse as the states themselves, it is clear that the FRCP has had a role in shaping state civil procedure models. Over the next year, it is likely that more states will amend their rules to reflect the new FRCP, while others will continue to utilize their own unique standards.

If you practice in state court anywhere across the country, you need to know the discovery requirements, because they may be similar to the new FRCP or vastly different. Keep yourself in-the-know and check out each of the 50 states plus the District of Columbia today on KrolLDiscovery’s Rules and Statutes Map.