E-Discovery in Delaware Federal Court — Part 2 of 3

The default standard does not require that each party to a case designate an e-discovery liaison through which all e-discovery requests are to be made. However, identifying such an individual can certainly aid in providing a smooth e-discovery experience. The individual can be a third-party consultant, an employee of the party, or counsel. The key point is that the e-discovery liaison should be knowledgeable about the party’s systems and capabilities — sufficient to answer and resolve relevant questions; adept and informed as to the technical underpinnings relating to the e-discovery including storage media, data formats, and other such issues; and prepared to participate in resolving e-discovery disputes.

Counsel should note that the attorneys of record are ultimately responsible for all e-discovery requests, and the e-discovery liaison should be tasked with executing the party’s e-discovery efforts to facilitate the process. This implementation can best be done by counsel selecting someone early who knows e-discovery law and technology. It is advisable that counsel engage the client technology team in selecting such an individual because if the person is not technically competent as to the client’s specific systems it could cause problems down the road. Of course, a company that finds itself a frequent party to litigation would save substantial money, time and resources by creating a full-time in-house e-discovery liaison.

ACCESSIBLE INFORMATION

Another telling requirement of the default standard is that it advocates a position oriented toward cooperation in the e-discovery process, by requiring the parties identify and provide notice to opposing counsel of any reasonably anticipated problems that might arise during the course of e-discovery at the Rule 26(f) conference.

Moreover, the default standard for discovery provides guidance around the timing of e-discovery. The parties must discuss the parameters of their intended discovery at the Rule 26(f) conference. As a means of implementation, it would benefit counsel during the discovery phase to create and maintain a living document that details systems that are inaccessible and/or not relevant and ensure that this information has been provided to the courts and opposing counsel. Counsel, by creating such a document, will be able to identify to opposing counsel and the courts which systems are inaccessible and consequently not be required to search such systems until the search of all reasonably accessible relevant data repositories are completed or the other side shows good cause.

Although the default standard is not explicit, any request for information that is not reasonably accessible should be narrowly tailored and demonstrate good cause. The default standard mandates that any request for on-site inspection pursuant to Fed. R. Civ. P. 34(b) is prohibited until the requesting party can show (1) good cause and (2) specific need. It is interesting that the default standard does not provide any guidance as to what constitutes good cause or specific need, so counsel should be prepared to defend its request for on-site inspection vigorously. In this regard, both “good cause” and “specific need” can be demonstrated to the court by various techniques, but should generally include a technical affidavit or report that supports the need for an on-site inspection.

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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: daniel@lawandforensics.com.