by Terri A. Thomas
The U.S. District Court for the Northern District of California unanimously adopted new guidelines regarding the discovery of electronically stored information (“ESI”). The guidelines are tools “designed to promote cooperative e-discovery planning . . . that is tailored and proportionate to the needs of [a] particular case.” The Court released:
· Guidelines for the Discovery of Electronically Stored Information (“ESI Guidelines”);
· An ESI checklist for use during the Rule 26(f) meet and confer process; and
· A Model Stipulated Order Re: the Discovery of Electronically Stored Information.
These documents are available in full at http://www.cand.uscourts.gov/eDiscoveryGuidelines
In addition, as part of the Joint Case Management Statements filed by the parties pursuant to Civil Local Rule 16-9, the parties must certify that they have each reviewed the ESI Guidelines and confirm that the parties have met and conferred pursuant to Fed. R. Civ. P. 26(f) regarding reasonable and proportionate steps taken to preserve evidence relevant to the issues reasonably evident in the action.
The ESI Guidelines were developed to “encourage reasonable electronic discovery with the goal of limiting the cost, burden and time spent, while ensuring that information subject to discovery is preserved and produced to allow for fair adjudication of the merits.” Most notably, the ESI Guidelines expressly adopt the proportionality standards articulated in Fed. R. Civ. P. 26(b)(2)(C) and 26(g)(1)(B)(iii) and apply it to preservation obligations. ESI Guidelines 1.03; 2.01. The ESI Guidelines also encourage cooperation between the parties, beginning at the early stages of discovery, and the appointment of e-discovery liaisons who are versed in the technical aspects of e-discovery for the respective parties.
In an effort to aid in and further encourage cooperation between the parties, the Court created a Rule 26(f) checklist for use during the meet and confer process, which highlights the relevant areas the Court believes parties should be addressing at the 26(f) stage relative to ESI. This includes designation of information that “the party believes could contain relevant information but  has determined, under the proportionality factors, should not be preserved.”
Finally, the Court drafted a Model Stipulated Order. The Model Order specifically calls for the parties to identify the dates and custodians for whom ESI is to be preserved, with the caveat that custodians may be added or removed as reasonably necessary. The Model Order also requires the party to designate relevant information, which, because of proportionality standards, will not be preserved. Additionally, the Model Order calls for the parties to agree on the production format and any phasing of discovery, and includes a Fed. R. Evid. 502(d) agreement that production of privileged and work-product documents will not constitute a waiver of such privilege(s). Of course, as this is a Model Order, the Court indicates in the Model Order itself its willingness to modify the Order by Stipulation of the parties or good cause.
In adopting the ESI Guidelines and Model Order, the Court attempts to provide some measure of clarity to parties of their preservation obligations; however, at least initially, this is based largely on cooperation and agreement between the parties. Still, such Model Orders and Guidelines are an important step in ensuring early communication of e-discovery issues.