Discovery in American courts has changed over time, but it has always been unique. In 1911, the Supreme Court decried a “fishing bill,” stating that a party could not “pry into the case of his adversary to learn its strength or weakness.” The wide net currently cast by the Federal Rules of Civil Procedure (FRCP) has rubbed several countries the wrong way, including France, which has enacted a “blocking statute,” criminalizing the exportation of some information requested during foreign legal proceedings. Despite the reluctance of the international community to embrace the broad idea of American discovery, it has continued to expand and now includes one of the hottest topics in litigation today: electronic discovery.
The Federal Rules of Civil Procedure were amended in 2006 to include the discovery of electronically stored information (ESI). The 2006 Amendments introduced “electronically stored information (ESI)” to the definition of discoverable material, added ESI to the list of initial disclosures, addressed the format of production for ESI, and included a “safe harbor” provision for situations where ESI is lost or not produced. Since 2006, 17 states have adopted the Federal e-discovery rule in full, 12 states have adopted the Federal e-discovery rules in part, 3 states have taken a unique approach to e-discovery, 8 states have adopted minimal rules, and 11 states (including the District of Columbia) have taken no action at all with regard to e-discovery. Kentucky is currently in the last category.