390
E-DISCOVERY UNDER THE MINNESOTA RULES:
WHERE WE’VE BEEN, WHERE WE MIGHT BE HEADED
David F. Herr† and JoLynn M. Markison††
I. INTRODUCTION ...................................................................... 390
II. BACKGROUND ON COURT RULES AND ELECTRONIC
DISCOVERY ............................................................................. 391
III. THE “ELECTRONIC DARK AGES” (1938–1952)....................... 397
IV. THE REUNION OF FEDERAL AND MINNESOTA CIVIL
PROCEDURE IN 1953 .............................................................. 398
V. THE CIVIL RULES AND THE EARLY DAYS OF THE COMPUTER
AGE ........................................................................................ 402
VI. THE ADVENT OF “E-DISCOVERY” AS A NEW SET OF ISSUES ..... 405
VII. THE FEDERAL RULES AMENDMENTS IN 2006 ......................... 407
VIII. ADOPTION OF AMENDMENTS IN MINNESOTA IN 2007 ............ 413
IX. MINNESOTA ACTS ON CIVIL JUSTICE REFORM ....................... 414
X. ONGOING ISSUES REGARDING E-DISCOVERY AND THE
RULES ..................................................................................... 417
A. Proportionality .................................................................. 418
B. ESI Preservation Duties and Culpability for Failure to
Preserve ............................................................................ 420
XI. THE FUTURE: THROUGH THE GLASS, DARKLY ....................... 424
I. INTRODUCTION
This article reviews the history of discovery in Minnesota
practice under the Minnesota Rules of Civil Procedure, analyzes
† David F. Herr is a partner at the Minneapolis law firm of Maslon
Edelman Borman & Brand, LLP. Since 1982 he has served as reporter for the
Minnesota Supreme Court Advisory Committee on Rules of Civil Procedure. He
has co-authored several editions of MINNESOTA PRACTICE: CIVIL RULES ANNOTATED.
†† JoLynn M. Markison is a Labor & Employment associate in Dorsey &
Whitney LLP’s Minneapolis office. She focuses her practice on employment
litigation and counseling, and has litigated complex cases involving e-discovery
issues in the areas of noncompete, trade secret, and unfair competition litigation.
2014] E-DISCOVERY UNDER THE MINNESOTA RULES 391
the place of electronic discovery in Minnesota today, and attempts
to predict how the courts may deal with electronic discovery issues
in the future. At one point it was reasonable to analogize
Minnesota e-discovery to Minnesota’s infamous weather—everyone
was talking about it but no one was doing anything about it. With
amendments to the rules in recent years, that is not really a fair
criticism, as the Minnesota courts have attempted to prevent
e-discovery from subverting the strong policy goal of resolving
disputes promptly, fairly, and inexpensively.
Minnesota has historically followed the lead of the federal
courts in establishing court rules.1 This article discusses how that
has occurred with respect to discovery in particular, and reviews
how e-discovery problems have emerged as major challenges to the
“just, speedy, and inexpensive” determination of civil cases
promised by Rule 1 of the Minnesota Rules of Civil Procedure.2
This article explores the history of the Minnesota Supreme Court’s
efforts to deal with the challenges of e-discovery, both in following
federal rule changes where they are deemed wise and in forging its
own solutions where the federal solutions are either ill-suited to
Minnesota or too limited to address the issues sufficiently.3 In 2013,
the court adopted recommendations of its Civil Justice Reform
Task Force to deal with some of these issues, many without federal
court counterparts.4
This article attempts to predict what the future may hold for
e-discovery in Minnesota.5 Those predictions will be informed by
the following articles in this issue, but if history is any guide, the
Minnesota solution to e-discovery problems will involve considered,
measured review of any federal court rule reforms, together with
careful consideration of changes originating in Minnesota or
tailored to Minnesota’s needs.
II. BACKGROUND ON COURT RULES AND ELECTRONIC DISCOVERY
In the early days of litigation under the Rules of Civil
Procedure (since 1938 in federal courts and since 1953 in
1. See infra Part IV.
2. See infra Part IX.
3. See infra Part IV, VIII.
4. See infra Part IX.
5. See infra Part XI.
392 WILLIAM MITCHELL LAW REVIEW [Vol. 40:2
Minnesota state courts), electronic discovery really didn’t exist.6
Commerce was not conducted in cyberspace and records were not
created or stored in electronic form. The rules reflected the greater
world—discovery involved witnesses, paper documents, and
occasionally tangible things other than documents. Entire files on
transactions existed in a single file folder, and a thin one at that. If
copies of documents existed, they were necessarily “carbon
copies,”7 unless a scrivener had been employed to create a
duplicate. If there were copies, they would generally number one
or two (more than that would be illegible).
How the world has changed! The photocopy machine
probably brought the most dramatic change in the world of
commerce that impacted the litigation process. Suddenly
numerous copies might be created of documents that might be
relevant to a civil dispute. Additionally, the litigation process itself
could create multiple additional copies of the documents. But the
photocopier’s impact pales in comparison to the changes wrought
by the high-speed digital computer. These machines have brought
changes the rule makers never contemplated. The rules
committees have been playing catch-up ever since.8
While the changes in the use of computers in virtually every
corner of our lives are clear and undisputable, questions about how
these changes should be reflected in the judicial process never have
been easy to answer. It is tempting just to say that electronic
6. Current versions of the Minnesota and Federal Rules are most frequently
accessed by consulting 1 MINNESOTA RULES OF COURT (2013) (state rules) and
FEDERAL CIVIL JUDICIAL PROCEDURE AND RULES (Westlaw rev. ed. 2013). Local rules
for the federal courts in Minnesota are found in 2 MINNESOTA RULES OF COURT
(2013) (federal rules). Those volumes contain compilations of the various
amendments to the state and federal civil rules. Similar compilations of the
Minnesota state civil rules are also available in volume 15 of the MINNESOTA
STATUTES (2012), and of the federal civil rules in 28 U.S.C. (2006).
7. “[A] thin paper faced with a waxy pigmented coating so that when placed
between two sheets of paper the pressure of writing or typing on the top sheet
causes transfer of pigment to the bottom sheet.” MERRIAM-WEBSTER’S COLLEGIATE
DICTIONARY 185 (11th ed. 2003) (defining “carbon paper”). Carbon paper allowed
the creation of a single copy; multiple copies could be made by using very thin
paper, familiarly known as “tissue” paper, and multiple sets of carbon paper and
the tissue paper. Each layer in the sandwich was a little less clear than the last.
8. The “crisis” of e-discovery is not universally viewed as dire. For an article
suggesting that the e-discovery crisis might be a little overblown, see James M.
Rosenbaum, The Death of E-Discovery, FED. LAW., July 2007, at 26, 26.
