Several provisions in Louisiana’s Code of Civil Procedure were amended in the last legislative session, and those changes are now in effect. One change made by the new law, Act 140 of the 2007 Regular Legislative Session (H.B. 203) (hereinafter, “Act 140”), is that the Code of Civil Procedure now specifically provides for the discovery of electronically stored information (hereinafter, “ESI”). Act 140 modifies Articles 1460-62 of the Code of Civil Procedure to explain how ESI should be requested and produced. The changes are intended to make Louisiana civil procedure more similar to federal procedure with regard to the discovery of ESI. There are still many differences, however, between federal procedure and the changes made by Act 140. The Act did not copy and paste the recent federal rule changes regarding ESI (discussed here https://www.louisianalawblog.com/general-litigation/electronic-evidence-update-for-in-house-counsel/ into our state Code of Civil Procedure.
Act 140 makes an important change to Louisiana’s work-product privilege, which is discussed in an article by this author to follow.
Act 140 also makes Louisiana’s procedure for the recovery of inadvertently produced privilege information more similar to federal procedure. Parties and/or their attorneys who inadvertently disclose material covered by the attorney-client or work product privileges have the opportunity to preserve the privilege if they act promptly to notify the receiving party of the inadvertence of their disclosure and their intent to assert a privilege. This language is similar to Federal Rule of Civil Procedure 26(b)(5)(B). Unlike the federal rules, however, the new Louisiana rule imposes an affirmative obligation on a party who receives what may be privileged information from its adversary: the receiving party is supposed to return or “safeguard” material that its adversary produced if it is “clear” that the material is privileged and was inadvertently produced. This provision could easily lead protracted litigation over ancillary matters such as what the receiving party knew or should have known, and when they knew or should have known it.
Other litigation practices and procedures affected by Act 140 include: codifying the requirement that parties must provide detailed information on documents withheld on the basis of privilege; protecting certain communications between an attorney and an expert witness from discovery; allowing for the presentation of witnesses at trial by live video in certain circumstances; and relaxing the requirement of who must verify delivery of process to a defendant served via long-arm statute before a default judgment can be entered. You can see the text of Act 140 and how it changes the Code of Civil Procedure by visiting the Louisiana Legislature’s website linked here: http://www.legis.state.la.us/billdata/streamdocument.asp?did=447007