The U.S. District Court for the Northern District of California recently issued new guidelines regarding the e-discovery process. These new guidelines were developed by Judge Elizabeth Laporte and the Court’s Rules Committee and became effective as of November 27, 2012. The purpose of these guidelines is to establish best practices for evidence preservation and production. Additionally these guidelines are intended to help foster healthy communication between parties engaged in the e-discovery process. Judge Laporte stated that these guidelines should, “promote cooperative e-discovery planning as soon as practicable that is tailored and proportionate to the needs of the particular case to achieve its just, speedy and inexpensive resolution.” In addition to these Guidelines, the court issued a checklist to be used during the meet and confer process.
The Guidelines include details regarding cooperation between parties in the e-discovery process. They stipulate that the court expects, “cooperation on issues relating to the preservation, collection, search, review, and production of ESI.” Effective cooperation involves each party making reasonable e-discovery requests as well as responding to requests in a timely manner. There should also be a certain level of discovery proportionality in all cases. This should be applied to the amount discovery and take into account the elements of preservation, collection, search, review, and ESI production. In order to ensure discovery proportionality, parties should consider the cost of their discovery request in relation to the potential benefits they can reap from the production.
The ESI Discovery Guidelines outline the following preservation suggestions:
- Parties should discuss preservation issues early on in the case and follow up throughout the duration of the case
- The scope of preservation should be complete, well-defined, and should not place an unfair burden on either party
- If there is a dispute regarding preservation that the parties cannot resolve amongst themselves, they should promptly raise the issue with the court
The now-required meet and confer conference can be vital in ensuring there is no miscommunication between parties regarding the e-discovery process. This meeting should include discussions regarding preservation, discovery systems, the search and production process, protective orders, and possible methods to reduce the cost and time burden. The guidelines make the following specific suggestions regarding items to be discussed during the meet and confer:
- Sources, scope and type of ESI that should be preserved
- Methodology for searching and producing ESI
- The order in which discovery searches should be conducted so that sources most likely to contain responsive materials are produced first
- Possible need for protective orders and treatment of inadvertent productions
- Any possible opportunities to reduce costs and increase efficiency
In most cases, the Guidelines stipulate that each party should appoint an e-discovery liaison to deal with any technical issues that arise. The liaisons should participate in the meet and confer process and should be knowledgeable about the location, nature, accessibility, format, search and collection of their respective parties ESI.
The Guidelines issued by the U.S. District Court of the Northern District of California are important first steps in ensuring the e-discovery process is as efficient and cost effective as possible. These guidelines will help make sure cases don’t get bogged down by discovery issues that could have been avoided by a healthy meet and confer session at the case’s start. E-discovery liaisons will also be helpful resources to all parties for resolving issues without requiring the court get involved. It would be wise for other District Courts to develop guidelines such as these to help attorneys better facilitate an effective e-discovery plan.