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 details, so in-house counsel need not engage IT each time a discovery request is made. Although this might appear daunting and costly, the long-term benefit of implementing such a system with the requisite underlying process delivers value to the legal and technology groups, saving money, time, and resources.
Counsel should reach out to their client’s IT team to identify the appropriate person, and in-house counsel should work internally with the IT group to establish the appropriate individual. Investing the time early on saves time and ensures that the parties will not accidentally end up eliminating a system that is subject to a litigation hold, which has been known to happen. While many corporations have a retention policy, few have a person designated for its enforcement. Enforcement typically occurs on a case-by-case basis when available storage space becomes an issue, so counsel should take pains to clarify what is policy and what is practice.
FN1 This new standard for e-discovery applies when no discovery agreement has been reached prior to the Rule 16 scheduling conference; then the rules set forth in the new default standard govern until the parties elect to conduct discovery in a cooperative fashion.
Daniel B. Garrie is a partner at Law & Forensics, an e-discovery and forensics firm, and co-author of “Dispute Resolution and E-Discovery” (2011 Thomson Reuters). Email: firstname.lastname@example.org.