The U.S. District Court for the Northern District of California announced new Guidelines regarding the discovery of electronically stored information (ESI). The new ESI-related documents are:
• Guidelines for the Discovery of Electronically Stored Information;
• ESI Checklist for Use During the Rule 26(f) Meet and Confer Process;
• Model Stipulated Order Re: the Discovery of Electronically Stored Information; and
• [revised] Standing Order Regarding Contents of Joint Case Management Statement.
To view the documents, please click here.
Here are a few highlights:
The Standing Order now requires parties to report whether they have considered entering into a stipulated e-discovery order. (Use of the model order is strongly encouraged.)
The Standing Order now requires parties to certify that they have reviewed the new Guidelines and discussed ESI issues as part of the Rule 26(f) conference. (Use of the ESI checklist is strongly encouraged.)
The Guidelines discourage overly broad preservation letters to opposing counsel. Rather, opposing counsel should discuss preservation of ESI at the earliest opportunity, applying the principle of proportionality. The Guidelines contemplate that there may be ESI that is not reasonably accessible and may be preserved but not searched, reviewed, or produced.
The Guidelines “strongly encourage” informal discussion of ESI discovery issues among counsel and party representatives, rather than a deposition.
The Guidelines suggest the appointment of an “E-Discovery Liaison,” a point person prepared to discuss technical issues to resolve ESI issues quickly and efficiently. This liaison appointment is included in the model stipulated order.
The Guidelines and Model Order encourage parties to discuss phasing of the production of ESI so that discovery occurs first from sources most likely to contain relevant and discoverable information.
These new guidelines follow the general trend in federal courts to encourage early discussion, cooperation among counsel and parties, and reasonable proportionality in the handling of ESI issues in discovery. While these revisions explicitly apply to the U.S. District Court for the Northern District of California, the guidelines, checklist, and model order are useful and should be considered in other forums that may not have published orders or case law on this subject.
For questions or assistance with this, or any other e-discovery issue, please contact Gordon & Rees E-Discovery Practice members Jeffrey Lilly, Elizabeth Lorell, Charles Berwanger, Andrew Cary, or Daniel Nichols.