(A) General. The Court’s e-discovery goal is to facilitate fair, open, and proportional discovery of the facts underlying a dispute so that the dispute is resolved on the merits and not by gamesmanship. Achieving this goal requires cooperation among counsel. It is expected that parties to a contested matter or adversary proceeding will cooperatively reach agreement on how to conduct e-discovery. The discovery of electronically stored information (“ESI”) stands on equal footing with the discovery of paper documents. The parties should exercise reason and good faith at all times, including, without limitation, when discussing issues concerning ESI.
(B) Preservation. A party has a duty to retain ESI that may be relevant to pending or reasonably anticipated litigation. The scope of a party’s preservation obligation is determined on a case-by-case basis. Preservation issues, to include each party’s records management policies and procedures, ideally should occur before suit is filed but certainly no later than the conference required by the Court’s Order Setting Status Conference and Establishing Procedures for Determination of Adversary Proceeding (and, with respect to any contested matters where application of Fed. R. Civ. P. 26(f) is ordered by the Court pursuant to Fed. R. Bankr. P. 9014(c)) (the “Rule 26(f) Conference”). On the topic of preservation, counsel should be informed and otherwise prepared to articulate both good cause for the preservation of ESI and the costs and burdens of maintaining ESI.
(C) ESI Conference. The following is a list of topics counsel should discuss before or at the beginning of the adversary proceeding or contested matter, and no later than the Rule 26(f) Conference in an adversary proceeding or in a contested matter where Rule 26(f) has been made applicable by court order. In other contested matters, such discussions should occur before or concurrently with the service of written discovery. Counsel are strongly encouraged to include their clients’ information technology employees and vendors in these discussions. Counsel is expected to be prepared to discuss each of the following topics to the extent possible based on the state of the pleadings and, where a meaningful discussion on any particular topic is precluded by the state of the pleadings, the parties must agree on a date by which a further conference will occur, agree on a date for a mutual exchange of supplemental information, and/or submit the issue(s) for resolution by the Court:
(1) The format or formats of ESI that will be most likely to provide the information needed to establish the relevant facts in the adversary proceeding or contested matter.
(2) The locations and sources where relevant ESI is likely to be found. This includes the identity of people likely to have relevant ESI and their titles and responsibilities.
(3) Reasonable steps to preserve ESI.
(4) The relevant time period(s).
(5) The manner and forms of preservation and production including the production of live database-based materials. See Fed. R. Civ. P. 34(b).
(6) The need for metadata and the types of metadata that will be preserved and produced, including:
(a) the potential relevance of the metadata;
(b) the importance of reasonably accessible metadata to facilitate the parties’ review, production and use of ESI; and
(c) the locations of metadata that will be sought in discovery.
(7) The accessibility of ESI in the form requested.
(8) The requesting party’s ability to manage and use ESI in the form requested.
(9) The risks associated with the inadvertent production of privileged or confidential information associated with the different forms of production.
(10) The difficulty of redacting ESI in the form requested.
(11) The extent to which alternative forms of production will satisfy a party’s needs.
(12) The relative costs and other burdens associated with production, review and processing ESI.
(13) The allocation of the costs of production.
(14) The use of search terms, sampling, de-duplication, “quick-peeks,” technology-assisted review methods including, for example, predictive coding and other strategies to reduce the volume of ESI that must be preserved and produced.
(15) How to deal with issues of confidentiality and privilege including the use of “claw-back agreements.”
(16) Tiered discovery in which ESI is produced sequentially in tranches.
(17) Disposal of ESI at the appropriate time.
(D) Procedure. Counsel is expected to have sufficient technical knowledge to propound educated and reasonable requests for ESI and to provide educated and reasonable responses to requests for ESI, as applicable. To reduce the volume and expense of discovering ESI, requests for production should, to the extent possible, clearly specify what is being sought including by topic and reference to persons involved. Responses to requests for ESI should state objections and the reasons for such objections clearly and specifically. Responses to requests for ESI should also clearly state the extent to which discovery of ESI will be permitted, the sources from which ESI has been obtained, and potential sources of ESI that were not searched.
(1) Rule 34(b) establishes that unless requested in another form, the producing party must produce electronically stored information in the form or format in which it is usually maintained or in a form or format that is reasonably usable. The Rule permits testing and sampling as well as the inspection and copying of ESI. Ordinarily, information should only be produced once, i.e., electronically or by paper copies, not both.
(2) Ordinarily, the costs of discovery will be borne by each party, however, the Court may apportion the costs of electronic discovery upon a showing of good cause.
(3) Electronic searches of documents identified by a party as being of limited accessibility ordinarily will not be conducted until the initial electronic document search has been completed in response to a request. Requests for information expected to be found in limited accessibility documents must be narrowly focused with some basis in fact supporting the request. Documents of limited accessibility include documents created or used by electronic media no longer in use, maintained in redundant electronic storage media, or for which retrieval involves substantial cost.
(4) Inspection of an opponent’s computer system is the exception, not the rule and the creation of forensic image backups of computers should only be sought in exceptional circumstances that warrant the burden and cost and in which good cause and a specific need have been demonstrated. A request to image an opponent’s computer should include a proposal for the protection of privacy rights, protection of privileged information, and the need to separate out and ignore non-relevant information.
(E) Privilege. Except to the extent that a “claw-back agreement” establishes a different procedure by agreement, electronic documents that contain privileged information or attorney work product must be immediately returned if the documents appear on their face to have been inadvertently produced or if there is notice of the inadvertent production within 28 days of such inadvertent production.
(F) Discovery from Non-Parties. Rule 45 does not require a party issuing a subpoena for ESI to a non-party to confer with the non-party in advance. Nevertheless, where practical, the party issuing the subpoena and the non-party responding to the subpoena should discuss, in advance, the same issues a party would discuss with an opposing party before commencing discovery of ESI. Except as otherwise ordered by the Court, once produced, metadata is reviewable without notice to the producing party.
[Comment: Adapted in part from United States Bankruptcy Court for the Middle District of Florida Local Rule 7026-2 and United States Bankruptcy Court for the District of Delaware Local Rule 7026-3.]
|☞ 2020 Amendment: New Local Rule 7026-2 is adapted in part from United States Bankruptcy Court for the Middle District of Florida Local Rule 7026-2 and United States Bankruptcy Court for the District of Delaware Local Rule 7026-3.|