When discovery first met the “e-“ that precedes it today, it fell upon trial judges nationwide to figure out how to harmonize primordial sources of electronically stored information (ESI) with traditional discovery rubrics—essentially, how to fit a round peg into a square hole. However, the landscape has adapted. Today, state and federal rulemaking bodies have formed a constellation of e-discovery frameworks that play a paramount role in civil litigation.

Origins of e-discovery rulemaking in the U.S.

Flooded with requests to produce ESI and incongruent rules, state rule makers in the late 1990s needed a hard and fast way to make ESI discoverable. In 1999, Texas was the first state to adopt a rule that contemplated e-discovery by adopting Texas Rule of Civil Procedure 196.4, which mandates a shift of cost to the requestor of inaccessible ESI.