By Shawn Sieck
TERIS Executive Vice President, Business Development and eDiscovery Consulting
The Northern District of California issued a new series of guidelines regarding the discovery of electronically stored documents. The guidelines, which included a revision of the Standing Order for All Judges in the Northern District of California, were created to provide a set of standards for the storage and preservation of digital evidence, and to ensure that policies and procedures keep in step with quickly evolving technologies.
The goal of the set of guidelines was to provide both parties with a set of practices that will thwart potential disputes, as well as provide a framework that will be adaptable to a wide variety of different cases and the evolution of new technologies for the preservation if electronically stored information (ESI).
The new guidelines stipulate that both parties must maintain continuous formal and informal communication regarding e-discovery. A checklist is also provided so that the parties have a structure in which to navigate those communications. The published guidelines include the following measures:
Both parties are expected to communicate with one another regarding the preservation, recovery, review and production of ESI. The Court expects that requests for ESI be as early as practicable, and that both parties reasonably limit the scope of the discovery requests, as well as offer a reasonable response time for those requests. The Court does not view the cooperation of the parties as compromising or limiting the efficacy or zeal of the quality of representation.
The preservation, search, collection and review of ESI should be in proportion to the benefit, the parties’ resources and the importance of the issues in question.
Both parties should discuss what ESI to preserve at the outset of the case and periodically throughout the case. When engaged in these discussions, the parties should define terms of preservation that are not excessively broad in scope, prohibitively expensive or burdensome. Preservation form letters should not be issued, but instead give detailed information including the names of the parties, the potential witnesses, a detailed description of the claims, the time frame and ESI that is likely to contain pertinent information (and its sources).
Meet and Confer
Both parties should engage in periodic discovery conferences where the following topics are discussed:
- Systems that contain relevant ESI
- Search and production
- Phasing of discovery
- Protective orders
- Methods and opportunities to increase efficiency and decrease expense
Both parties should appoint a liaison that is knowledgeable about the methods and systems of ESI preservation, retrieval and analysis, including all technical aspects, location and formats of ESI. The liaison should be able and prepared to engage in e-discovery dispute resolution, and can be an attorney, a representative of the party or a third-party consultant.
Both parties should make every reasonable effort to resolve all disputes regarding preservation, analysis or disclosure of ESI or methodologies. Should no resolution be reached, the issue should be presented to the court as early as practicable.
E-discovery has become an expensive and convoluted issue for many smaller law firms who do not have the built in resources to handle the minutiae of ESI and all of the attendant regulations regarding its preservation and recovery. The guidelines and checklist are meant to offset the burdens of e-discovery, which many practices find intimidating and cumbersome, without time consuming court intervention.
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