By Sandy Eloranto
*Published in the FFA newsletter and reprinted with the FFA’s permission
On July 30, 2015, members of the United States District Court’s Electronic Discovery Committee gave an informative presentation on the new Electronic Discovery Guidelines and Checklist, issued in 2014. The Committee, chaired by Judge William J. Martinez, spent over two years compiling information and surveying practitioners. Copies of the Guidelines and Checklist, along with details regarding the survey results, are available on the United States District Court for the District of Colorado website, here.
Committee members included Magistrate Judge Craig Shaffer and attorneys from various types of practices: John Chanin, Stanton Dodge, Rita Kittle, Lino S. Lipinsky de Orlov, Kimberlie Ryan, and Joy Woller. A subcommittee, headed up by Ms. Woller, invested countless hours reviewing survey results and information collected from other jurisdictions. Based on the results, the subcommittee drafted proposed e-discovery guidelines that was reviewed and finalized by the full Committee.
The final products from the Committee’s work are the Guidelines and Checklist. They include five separate guidelines on the discoverability of electronically stored information (ESI), and an ESI checklist intended for use in Fed. R. Civ. P. 26(f) conferences.
The Guidelines must be read in conjunction with the Federal Rules of Civil Procedure, U.S. District Court Local Rules, and judges’ practice standards. The Committee noted that the ESI technical jargon can be daunting, but the Guidelines provide insight to attorneys on what judges expect. While attorneys are not required to be experts on ESI, they must be familiar with the benefits and risks associated with information management and technology, and on how the rules of civil procedure, FRE 502, and any applicable case law might apply to individual cases. Key themes include good faith, cooperation, reasonableness, and proportionality. Per the Guidelines, requests for production of ESI, and related responses and objections, should be reasonably targeted and as specific as practical. See Commentary 1.4 of the Guidelines.
Magistrate Judge Shaffer explained that the Guidelines can be particularly helpful when representing clients who are new to litigation or otherwise unfamiliar with the document retention and legal hold responsibilities triggered by litigation. Attorneys familiar with the Guidelines can help ensure that their clients take reasonable steps to identify and preserve relevant data, which may mitigate against sanctions that might otherwise be imposed pursuant to Fed. R. Civ. P. 37(c) for failure to preserve ESI. The Guidelines also address inadvertent disclosures and the protections available under FRE 502 if reasonable steps were taken to avoid disclosure. See Commentary 5.2 and 5.3.
In addition to the Guidelines, the Committee compiled the Checklist to help practitioners identify key issues that need to be discussed early on (e.g. time frame at issue, number of custodians, or use of outside vendors). Mr. Chanin explained that while not mandatory (the Checklist does not have to be filled out and/or filed with the court), it is a good illustration of the scope of information judges expect practitioners to investigate and discuss prior to appearing for scheduling conferences. Mr. Chanin suggested using the Checklist as a roadmap during Rule 26(f) conferences, and admonished practitioners to know what EIS their clients have, what has been archived, and where the various types of ESI are located, before talking to the other side. This includes reviewing the technical information attorneys are expected to know about their clients’ information and systems (see Commentary 3.3) including the different sources of relevant ESI and basic information about clients’ systems architecture and protocols. Counsel should be knowledgeable about relevant ESI in their clients’ possession, custody or control, including “how such information is generated, maintained, retained, and disposed.” See Commentary 2.1 (emphasis added).
Magistrate Judge Shaffer further cautioned attorneys to anticipate being asked for the above details at scheduling conferences, noting that he expects attorneys to have reasonably and thoroughly conferred, multiple times if necessary, especially in cases involving complex facts or substantial amounts of ESI. The Guidelines are intended to assist practitioners in making reasonable efforts to reach agreements on the types and sources of ESI and the scope of preservation, including identifying information that is not subject to a preservation obligation and any related privileged documents (see Commentary to Guidelines 3 and 5). These discussions must occur early so that any agreements reached can be incorporated into the proposed scheduling orders, and any disputes can be raised at scheduling conferences. Magistrate Judge Shaffer strongly encouraged attorneys to provide a written list to the other side before the 26(f) conference of the topics that need to be discussed, and to come to the conference prepared to intelligently discuss those topics.
Finally, the Committee acknowledged that the collection, filtering, and review of ESI does not have to be perfect, but must be reasonable. Ongoing discussion and cooperation among counsel is expected by the judges, and highlighted in Guideline 4. See Commentary 4.1. Magistrate Judge Shaffer concluded that practitioners should become familiar with and utilize the informal dispute resolution tools laid out in Commentary 4.2, to narrow to the extent possible disputed issues to rise with the court.