As we enter August, we anticipate a notable inaugural anniversary next month: the proposed Pilot pertaining to the Model ESI Discovery Order and Checklist for Rule 26(f). Initiated by the United States Court for the Eastern District of Michigan, this checklist has already proven to be a valuable, sustainable and reasonable method for ensuring the appropriate cooperation between opposing parties, while encouraging early dispute resolution regarding ESI without court mediation.
What follows are key points of the model, and why it’s advantageous to follow the checklist regardless of the residing court.
Practical cooperation between parties benefits everyone, particularly without sacrificing the steadfast representation of one’s client. This rule necessitates the importance of a Meet and Confer to gain an early understanding of client’s data and to outline the information needed for defining a targeted method for the identification, preservation, protection of privileged data, and a reasonable mode of production and delivery.
By defining these expectations in advance of the initial status conference, parties are better prepared, more educated and equipped to finalize any disputes pertaining to the ESI plan that require resolve from the court. Below are examples this model details in order to fulfill one’s duty at the Meet and Confer:
- Designate an eDiscovery Liaison to speak on behalf of your party, advocate for your eDiscovery efforts, consult on industry best practices and participate in e-discovery dispute resolution. This person does not have to be an attorney. Liaisons should be a knowledgeable individual regarding any technical aspects for your matter, including third parties, vendors, employees or counsel.
- Detail a clear and specific preservation request. Include information such as: Names of parties, factual background related to the claim, date ranges and potential witnesses.
- When responding to a preservation request, identify what you’re willing to preserve, any action taken, disagreements with the requests and any other issue that remains unraised.
- Preserve a reasonable and proportionate amount of ESI by eliminating undiscoverable data such as fragmented data, online access data, RAM, and backup data and search only for data within the following parameters (unless a court order showing cause is received).
o Fewer than 10 key custodians
o Limit the collection to 5 years before the filing date
o Eliminate sources that are unjustly burdensome of costly
o And more …
- Eliminate duplicative data and filter based on file type, date ranges, search terms and custodians, and other advanced culling techniques such as Technology Assisted Review, Concept Clustering and other Advanced Analytics.
- Agree upon production and delivery formats.
- And most importantly, dedicate adequate time to further your education on electronic discovery!
A detailed checklist can be found HERE [PDF]
Amenability to this practice renders better client avocation, increased efficiency, clear communication and concise expectations, collection reductions derived from streamlined culling procedures, and a deeper understanding of the ESI relating to each matter — resulting in a faster, more cost-effective and cooperative route to a just resolution.