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1. Introduction. It is expected that parties to a case will
cooperatively reach agreement on how to conduct e-discovery. In the
event that such agreement has not been reached by the Fed. R. Civ. P. 16
scheduling conference, however, the following default standards shall
apply until such time, if ever, the parties conduct e-discovery on a
consensual basis.
2. Discovery conference.
Parties shall discuss the parameters of their anticipated e-discovery at
the Fed. R. Civ. P. 26(f) conference, as well as at the Fed. R. Civ. P.
16 scheduling conference with the court, consistent with the concerns
outlined below. More specifically, prior to the Rule 26(f) conference,
the parties shall exchange the following information:
- A list of the most likely custodians of relevant electronic materials,
including a brief description of each person's title and
responsibilities (see ¶ 6).
- A list of each relevant electronic system that has been in place at
all relevant times1 and a
general description of each system, including the nature, scope,
character, organization, and formats employed in each system. The
parties should also include other pertinent information about their
electronic documents and whether those electronic documents are of
limited accessibility. Electronic documents of limited accessibility may
include those created or used by electronic media no longer in use,
maintained in redundant electronic storage media, or for which retrieval
involves substantial cost.
- The name of the individual responsible for that party's electronic
document retention policies ("the retention coordinator"), as
well as a general description of the party's electronic document
retention policies for the systems identified above (see ¶ 6).
- The name of the individual who shall serve as that party's
"e-discovery liaison" (see ¶ 2).
- Provide notice of any problems reasonably anticipated to arise in
connection with e-discovery.
To the extent that the state
of the pleadings does not permit a meaningful discussion of the above by
the time of the Rule 26(f) conference, the parties shall either agree on
a date by which this information will be mutually exchanged or submit
the issue for resolution by the court at the Rule 16 scheduling
conference.
3. E-discovery liaison.
In order to promote communication and cooperation between the parties,
each party to a case shall designate a single individual through which
all e-discovery requests and responses are made ("the e-discovery
liaison"). Regardless of whether the e-discovery liaison is an
attorney (in-house or outside counsel), a third party consultant, or an
employee of the party, he or she must be:
- Familiar with the party's electronic systems and capabilities in order
to explain these systems and answer relevant questions.
- Knowledgeable about the technical aspects of e-discovery, including
electronic document storage, organization, and format issues.
- Prepared to participate in e-discovery dispute resolutions.
The court notes that, at all
times, the attorneys of record shall be responsible for compliance with
e-discovery requests. However, the e-discovery liaisons shall be
responsible for organizing each party's e-discovery efforts to insure
consistency and thoroughness and, generally, to facilitate the
e-discovery process.
4. Timing of e-discovery.
Discovery of electronic documents shall proceed in a sequenced fashion.
- After receiving requests for document production, the parties shall
search their documents, other than those identified as limited
accessibility electronic documents, and produce responsive electronic
documents in accordance with Fed. R. Civ. P. 26(b)(2).
- Electronic searches of documents identified as of limited
accessibility shall not be conducted until the initial electronic
document search has been completed. Requests for information expected to
be found in limited accessibility documents must be narrowly focused
with some basis in fact supporting the request.
- On-site inspections of electronic media under Fed. R. Civ. P. 34(b)
shall not be permitted absent exceptional circumstances, where good
cause and specific need have been demonstrated.
5. Search methodology.
If the parties intend to employ an electronic search to locate relevant
electronic documents, the parties shall disclose any restrictions as to
scope and method which might affect their ability to conduct a complete
electronic search of the electronic documents. The parties shall reach
agreement as to the method of searching, and the words, terms, and
phrases to be searched with the assistance of the respective e-discovery
liaisons, who are charged with familiarity with the parties' respective
systems. The parties also shall reach agreement as to the timing and
conditions of any additional searches which may become necessary in the
normal course of discovery. To minimize the expense, the parties may
consider limiting the scope of the electronic search (e.g., time frames,
fields, document types).
6. Format. If,
during the course of the Rule 26(f) conference, the parties cannot agree
to the format for document production, electronic documents shall be
produced to the requesting party as image files (e.g., PDF or TIFF).
When the image file is produced, the producing party must preserve the
integrity of the electronic document's contents, i.e., the original
formatting of the document, its metadata and, where applicable, its
revision history. After initial production in image file format is
complete, a party must demonstrate particularized need for production of
electronic documents in their native format.
7. Retention.
Within the first thirty (30) days of discovery, the parties should work
towards an agreement (akin to the standard protective order) that
outlines the steps each party shall take to segregate and preserve the
integrity of all relevant electronic documents. In order to avoid later
accusations of spoliation, a Fed. R. Civ. P. 30(b)(6) deposition of each
party's retention coordinator may be appropriate.
The retention coordinators
shall:
- Take steps to ensure that e-mail of identified custodians shall not be
permanently deleted in the ordinary course of business and that
electronic documents maintained by the individual custodians shall not
be altered.
- Provide notice as to the criteria used for spam and/or virus filtering
of e-mail and attachments; e-mails and attachments filtered out by such
systems shall be deemed non- responsive so long as the criteria
underlying the filtering are reasonable.
Within seven (7) days of
identifying the relevant document custodians, the retention coordinators
shall implement the above procedures and each party's counsel shall file
a statement of compliance as such with the court.
8. Privilege.
Electronic documents that contain privileged information or attorney
work product shall be immediately returned if the documents appear on
their face to have been inadvertently produced or if there is notice of
the inadvertent production within thirty (30) days of such.
9. Costs.
Generally, the costs of discovery shall be borne by each party. However,
the court will apportion the costs of electronic discovery upon a
showing of good cause.
10. Discovery disputes and trial
presentation. At this time, discovery disputes shall be
resolved and trial presentations shall be conducted consistent with each
individual judge's guidelines.
1For
instance, in a patent case, the relevant times for a patent holder may
be the date the patent (s) issued or the effective filing date of each
patent in suit. |
