Electronic Discovery GuidelinesFRCP 26(f) mandates that parties

“meaningfully meet and confer” to consider the nature of their respective claims and defenses. Moreover, the rule requires that parties discuss the preservation, disclosure and discovery of electronically stored information, including the format in which the information should be produced. The rule also requires that parties discuss issues relating to claims of privilege and work product protection.

Electronic Discovery GuidelinesMeet and Confer – Process

– Rule 26(f)(1)- requires the parties to meet and confer to develop a proposed discovery plan prior to the Rule 16 pretrial conference and to submit a written report to the court.

– At the Rule 16 pretrial conference the parties meet with the court to discuss, among other matters, the proposed discovery schedule and any anticipated discovery disputes.

– The Court has the opportunity at this time to get involved and potentially resolve discovery/litigation issues that may arise.

Existence of Electronic Information

Prior to the Fed. R. Civ. P. 26(f) conference, Counsel should become knowledgeable about their clients’ information management systems and their operation, including how information is stored and received. In addition, counsel should make a reasonable attempt to review their client’s electronic information files to ascertain their contents, including archival, backup, and legacy data (outdated formats or media)

Duty to disclose Counsel shall review with their clients the

clients electronic information files, including current files as well as back-up, archival, and legacy computer files, to determine what information may used to support claims or defenses. If disclosures of electronic information are being made, counsel shall also identify those individuals with knowledge of their clients electronic information systems who can facilitate the location and identification of discoverable electronic information

Duty to notify

A party seeking discovery of computer-based information shall notify the opposing party of that fact immediately, and, if known at the time of the Fed.R. Civ. P. 26(f) conference, shall identify as clearly as possible the categories of information that may be sought.

Note: Rule 26(b)(2)(1) allows the Court to limit allowable discovery if the burdens outweigh the likely benefits, serving to discourage speculative requests.

Duty to meet and confer regarding electronic information

During the Fed.R. Civ. P. 26(f) conference the parties shall confer regarding the following matters: 1. Counsel shall attempt to agree on steps the parties

will take to segregate and preserve computer based information in order to avoid accusations of spoliation. Counsel shall also attempt to agree on the steps the parties will take to comply with the decisions and rules requiring the preservation of potentially relevant information after litigation has commenced.

Duty to meet and confer regarding electronic information

2. Email. Counsel shall attempt to agree on the scope of email discovery and email search protocol

3. Deleted information. Counsel shall attempt to agree on whether deleted information still exists, the extent to which restoration of deleted information is needed, and who will bear the costs of restoration.

Duty to meet and confer regarding electronic information

4. Back-up and archival data. Counsel shall attempt to agree on whether back up and archival data exists, the extent to which it is needed and who will bear the cost of obtaining such data.

5. Costs. Counsel shall discuss the anticipated scope, cost and time required for disclosure or production of data beyond what is reasonably available to the parties in the ordinary course of business, and shall attempt to agree on the allocation of cost

Duty to meet and confer regarding electronic information

6. Format and media. Counsel shall discuss and attempt to agree on the format and media to be used in the production of electronic material.

7. Privileged material. Counsel shall attempt to reach an agreement regarding what will happen in the event privileged material or information is inadvertently disclosed

Sources: USCourts.gov Texas and Kansas

All the contextual, processing, and use information needed to identify and certify the scope, authenticity, and integrity of active or archival electronic information.

Examples of metadata; a file’s name, location(filepath) filetype, file size, creation date, date of last modification…other examples; track changes in MS word and blind copies in email; and formulas and hidden columns in MS Excel

Metadata

Gives the parties the opportunity to reach agreement regarding parameters of the litigation.

Gives the parties the opportunity to agree on what they “disagree” about and present their disputes for early judicial resolution. (at the Rule 16 (b) Conference).

Importance of Rule 26(F)

Sedona Cooperation Proclamation

The Sedona Conference launched a coordinated effort to promote cooperation by all parties to the discovery process to achieve the goal of a “just, speedy, and inexpensive determination of every action.”

Sedona Cooperation Proclamation

An effort to promote open and forthright information sharing, dialogue, training and the development of practical tools to facilitate cooperative, collaborative and transparent discovery.

The Proclamation challenges the bar to achieve these goals and refocus litigation toward the substantive resolution of legal disputes.

Sedona Cooperation Proclamation

The Sedona Conference’s effort is to change the culture of discovery from adversarial conduct to cooperation, maintaining it is an exercise in economy and logic and will result in an appropriate application of the law by channeling valuable advocacy skills toward interpreting the facts.

Sedona Cooperation Proclamation

The Sedona Conference calls for a paradigm shift, and focuses on the amended FRCP’s specific emphasis on ESI discovery and the need for early communication to streamline information exchange and avoid costly disputes.

Sedona maintains that an attorneys “officer of the court” duties demand no less.

Prior Planning is essential. Counsel must become familiar with the computer storage systems of their clients.

Mutual exchange of information prior to the first Rule 26(f) conference.

Bring the proper representatives that can best contribute to the outcome.

Make it an iterative process.

Best Practices

Determine what you already know about the ESI evidence and what you need to know. Custodians? Forensics?

Address preservation needs. Follow up repetitively that it has been accomplished.

Know what production formats of data you can handle. Can it be rolling?

Clarify and communicate issues you wish to address:– Opponents systems, locations, back up procedures,

native data formats and volume.– Who you would like present at the conference.

Expect a reciprocal request- so learn your clients systems.

Best Practices- Requesting Party

Know your clients systems.Know what formats of data you can preserve and

produce.Clarify and communicate issues you wish to

address:– Opponents systems, locations, back up procedures,

native data formats and volume.– Who you would like present at the conference.

Have IT experts, vendors or consultants available. Insure you have preservation under control.

Best Practices- Producing Party