On Dec. 8, 2011, the U.S. District Court for the District of Delaware adopted a “Default Standard for Discovery, Including Discovery of Electronically Stored Information (ESI)”[FOOTNOTE 1] that was seven years in the making. The default standard replaces the old ad hoc mixture of the Federal Rules of Civil Procedure, case law, and local rules that previously governed discovery in the Delaware federal courts. The new default standard compels the parties to cooperatively engage in substantive dialogue around various aspects of discovery, pursuant to Fed. R. Civ. P. 16, 26-36. This article describes the new default standard for e-discovery and offers practitioners practice points. CUSTODIANS AND SYSTEMS The new default standard requires that each party shall disclose a list of 10 custodians and relevant systems with relevant electronically stored information in descending order of likelihood, within 30 days after the Rule 16 conference. The custodian list must provide the individual’s name, title, and role in the dispute, and the subject matter of the information. In drafting this list, counsel should consider conferring not only with counsel but also verify with a human resource representative that the information is both accurate and up to date. Counsel might also want to identify who are full-time and who are contractors as contractors may be using their own computer systems. With regard to the systems list, the default standard does not require counsel to create a list of relevant systems. However, it does mandate that counsel be ready to discuss these systems at the initial discovery conference. Counsel should be ready to provide system information including: the nature, scope, character, organization, and formats employed in each system. Counsel should also be prepared to articulate what data is not reasonably accessible, such as media that are no longer in use or supported or where retrieval costs are burdensome or costly. When counsel gather this systems information, it is important that they engage the client’s legal and technology stakeholders. The technologist is critical to this process because depending on the size and maturity of the organization it may require a meaningful effort by the technologist to develop such a list or understand this information. Therefore, it is advisable that counsel engage early with the client’s technology team to avoid a time crunch. Moreover, it is advisable that in-house counsel consider engaging their information technology group at the beginning to construct a dynamic list that contains these…

Electronically Stored Information in the 21st century and its implications for e-discovery in criminal v. civil cases.  Much to the chagrin of criminal lawyers the criminal case has gone “paperless.”  Additionally, the landscape of criminal defendants is changing rapidly.  CEOs of large mortgage companies or financial firms do not see themselves “hanging” with common criminals; they make their deals at the club or on the golf course.  The problem is that the business following such meetings is memorialized by electronic communication, and unknown to them, these business practices have caught the attention of the government.  Welcome to 21st century communications. (Contact us to request a copy)

REASONS TO USE E-DISCOVERY REFEREES THAT KNOW THE TECHNOLOGY AND THE LAW The importance of discovery referees such as special masters is increasing with the quantity of electronic data at issue in many cases. A discovery referee is a neutral person appointed by a court, arbitrator, other decision-making body, or the parties themselves, to make factual determinations in complicated cases. In e-discovery disputes, for example, discovery referees are increasingly being appointed and tasked with reviewing technical compliance with discovery requests, routing out attempts to avoid compliance, opining on intentional or reckless spoliation of evidence, and determining whether discovery orders are being followed. If done right, discovery referees can be a boon to the court and litigants – the right discovery referee saves the parties’ time, saves the parties’ money, and, perhaps most importantly, makes the correct technological and legal decisions necessary for resolution of the underlying dispute. (Contact us to request a copy)