On November 27, 2012, the Northern District of California announced new guidelines for the discovery of electronically stored information (ESI), which are effective immediately. The court’s uniform standing order now requires that joint case management statements include a certification that the parties have reviewed the guidelines and have met and conferred pursuant to Rule 26(f) “regarding reasonable and proportionate steps taken to preserve evidence relevant to the issues reasonably evident in this action.”
The court released three related documents: (1) the actual guidelines for the discovery of electronically stored Information, (2) an ESI checklist for use during the Rule 26(f) meet and confer process, (3) and a model stipulated order about ESI discovery.
Guidelines for the Discovery of Electronically Stored Information
The guidelines suggest how parties can limit the costs and burdens of electronic discovery while adequately preserving important information and promoting fair adjudication. The court repeatedly emphasizes efficiency and cost reduction. Key points include:
Rule 26(f) ESI Checklist
The checklist provides additional detail about suggested ESI discovery topics for the Rule 26(f) conference. It stresses open and cooperative communication, such as by identifying likely custodians by name or position or considering sharing a common electronic discovery vendor. Although the checklist is not mandatory and acknowledges that its utility “may depend on the nature and complexity of the matter,” it will be difficult to justify having not used it if problems later arise.
Model Stipulated Order
Finally, the court provides a model stipulated ESI discovery order, which includes an acknowledgement of the importance of cooperation and a commitment to good faith. The order is optional and adaptable, but again, the court will likely be unsympathetic if problems later arise that could have been addressed by the suggested language.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:Adler-Gary
This article was originally published by Bingham McCutchen LLP.