It is a very good first step to raising eDiscovery competency and awareness for attorneys in Silicon Valley. The complete guidelines can be downloaded from Northern District website, which states attorneys should “consult [the Guidelines, Checklist and Model Stipulated Order] at the beginning of a case.”
I stress the Guidelines, Check List and Model Order are excellent starting points (and should be taken seriously as a standing order). However, I encourage attorneys to continue to educate themselves on eDiscovery, whether it is from blogs, podcasts, CLE’s, books or eDiscovery courses. Technology to preserve, identify and search ESI is always improving and attorneys should be familiar with the technology at their fingertips.
The past year included many Case Management Orders that stated metadata would not be produced without good cause. Given that there are different kinds of metadata, such as substantive, embedded and system, such a blanket prohibition is dangerous, because it can easily result in degrading the searchable features of otherwise searchable ESI.
I was pleased when I read the following in the Northern District’s Model Order on production formats, avoiding the “metadata good cause” quagmire:
The parties agree to produce documents in ☐ PDF, ☐TIFF, ☐native and/or ☐paper or a combination thereof (check all that apply)] file formats. If particular documents warrant a different format, the parties will cooperate to arrange for the mutually acceptable production of such documents. The parties agree not to degrade the searchability of documents as part of the document production process.
Moreover, the Check List addressed quality control issues in search and production with the following for parties to include in their project management: The quality control method(s) the producing party will use to evaluate whether a production is missing relevant ESI or contains substantial amounts of irrelevant ESI.
The Northern District paid serious attention to proportionality in the preservation of electronically stored information. The Model Order states the following:
The parties have discussed their preservation obligations and needs and agree that preservation of potentially relevant ESI will be reasonable and proportionate. To reduce the costs and burdens of preservation and to ensure proper ESI is preserved, the parties agree that:
a) Only ESI created or received between ________ and ________ will be preserved;
b) The parties have exchanged a list of the types of ESI they believe should be preserved and the custodians, or general job titles or descriptions of custodians, for whom they believe ESI should be preserved, e.g., “HR head,” “scientist,” and “marketing manager.” The parties shall add or remove custodians as reasonably necessary;
c) The parties have agreed/will agree on the number of custodians per party for whom ESI will be preserved;
d) These data sources are not reasonably accessible because of undue burden or cost pursuant to Fed. R. Civ. P. 26(b)(2)(B) and ESI from these sources will be preserved but not searched, reviewed, or produced: [e.g., backup media of [named] system, systems no longer in use that cannot be accessed];
e) Among the sources of data the parties agree are not reasonably accessible, the parties agree not to preserve the following: [e.g., backup media created before ________, digital voicemail, instant messaging, automatically saved versions of documents];
f) In addition to the agreements above, the parties agree data from these sources (a) could contain relevant information but (b) under the proportionality factors, should not be preserved: ___________________________________________________.
The Northern District focused heavily on proportionality, cooperation, the meet and confer process, and in my opinion, raise awareness and ultimately attorney competency in eDiscovery. It is a very good start.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.