Washington state case law is sparse when it comes to the topic of electronically stored information (ESI).

To shed some light on the subject, the Washington State Bar Association is reviewing a proposal to amend the state rules of civil procedure regarding ESI. The proposal under review generally follows the 2006 amendments to the Federal Rules of Civil Procedure, with a few exceptions, including not making the Rule 26(f) meeting mandatory.

The WSBA Court Rules and Procedures Committee first explored the idea of amending the state rules during its 2006-2007 season, forming a subcommittee to consider implementing amendments similar to the federal rules.

The subcommittee reconvened during the 2007-2008 season to obtain input from a host of organizations, including the Superior Court Judge’s Association, the Washington State Association for Justice, the Washington Defense Trial Lawyers and the Washington Association of Prosecuting Attorneys, among many others, according to a WSBA report.

The WSBA’s board of governors met on July 24th to review the proposed rule changes and will address the changes again in September. It’s not clear when the board of governors will vote on whether to adopt the changes.

If the WSBA decides to implement aspects of the federal rules regarding ESI, it would be the latest in a string of states to do so. In late June, California Gov. Arnold Schwarzenegger signed into law the Electronic Discovery Act. The new law integrates federal electronic discovery rules into the California Code of Civil Procedure.

The proposed amendments to Washington state law call for the adoption of changes similar to federal rules 26, 33, 34, 37, 45 and evidence rule 502. One major deviation from the federal rules comes in regards to the mandatory meet-and-confer meetings under Federal Rule 26(f).

The Rule 26(f) meeting was implemented to cut down on the escalating costs of litigation by forcing both parties to meet early in the process to agree upon the scope of e-discovery. Under the proposed Washington state rule, a meet-and-confer meeting is not mandatory. If a party wants a meet-and-confer, it would have to make a motion with the court asking for one.

While there is debate over whether Rule 26(f) meetings actually cut down on litigation expenses, it seems counterintuitive for Washington state not to make meet-and-confers mandatory. In essence, the meet-and-confer meeting is a chance for both parties to discuss everything related to e-discovery and iron out any major stumbling blocks in an informal setting rather than through motion practice.

If parties are not required to hold a Rule 26(f) meeting, then they may be less inclined to address potential e-discovery issues, similar to where we were before the Federal Rules of Civil Procedure were amended in 2006. However, nothing is etched in stone at this point – the proposed amendments to Washington state’s rules of procedure will continue to garner comment and input from a host of players before a final decision is made.