• Northern District of California Issues New E-Discovery Guidelines
  • December 7, 2012 | Authors: Bree Hann; Nargues Motamed; Kevin M. Papay
  • Law Firm: Bingham McCutchen LLP - San Francisco Office
  • 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:

    • Cooperation. The court expressly directs parties to cooperate on ESI discovery and to rein in overzealous instincts. It also “strongly encourages” informal and early discussions about the scope of ESI discovery, rather than depositions.

    • Proportionality. In keeping with Rules 26(b)(2)(C) and 26(g)(1)(B)(iii), the parties should consider the burden or expense of proposed ESI discovery compared with its likely benefit, its significance to the merits, the parties’ resources and other factors.

    • Open Discussion. The court suggests several specific Rule 26(f) conference discussion topics, such as phasing of discovery, database querying, and number and identities of custodians. While these topics are suggestions, the court stresses the importance of detailed discussion to make the conference “meaningful.”

    • E-Discovery Liaison. Each party should designate an e-discovery liaison “who will be knowledgeable about and responsible for discussing their respective ESI.” The liaison may be a lawyer, party employee or third-party consultant and must be able to discuss the party’s efforts, systems, and technical approaches and issues.

    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.