Originally published January 2012

Keywords: e-discovery, electronically stored information, ESI, discovery, standing orders, model orders, pilot programs

Scenario

An organization is named as a defendant in a putative class action in the Southern District of New York. In-house counsel notices the long order that follows the complaint, including a twelve-page form that the parties are to complete regarding electronic discovery. In-house counsel is concerned about gathering all of that information so early in the litigation, and wonders if other courts are requiring similar early due diligence with respect to electronic discovery.

From Recommendations to Requirements

It is no secret that discovery costs, including the review and production of electronically stored information (ESI), frequently make up a substantial portion of the overall cost of a lawsuit. The Federal Rules of Civil Procedure, various corresponding state rules, and guidance from individual judges each try to reduce these costs by encouraging the parties to agree on plans for electronic discovery early in a dispute.

More recently, several courts at both the state and federal levels have promulgated standing orders, model orders or pilot programs to force litigants to organize and manage e-discovery early in the litigation and to cooperate with opposing counsel in developing an e-discovery plan. Counsel who are accustomed to postponing discussions of ESI may find their cases automatically subjected to orders that require rapid agreements on e-discovery issues.

Southern District of New York Standing Order

The US District Court for the Southern District of New York (SDNY) is one such court, having implemented Standing Order M10-468, In re: Pilot Project Regarding Case Management Techniques for Complex Civil Cases in the Southern District of New York, in November 2011 (the "Standing Order"). The Standing Order applies by default to class actions, multi-district litigation, and other specified types of claims. It sets forth the court's expectations in relation to electronic discovery during the initial pretrial conference and the parties' Rule 26(f) conference.

Topics for Initial Pretrial Conference

The Standing Order provides that at the pretrial conference, "[t]he parties shall provide the Court with a concise overview of the essential issues in the case and the importance of discovery in resolving those issues so that the Court can make a proportionality assessment and limit the scope of discovery as it deems appropriate." To assist with this proportionality assessment, the parties must submit an Initial Report seven days before the conference. The Initial Report must include the following points relating to ESI:

  • Possible limitations on ESI preservation, restoration, and production;
  • Planned preservation depositions;
  • A proposed protocol and schedule for electronic discovery; and
  • Anticipated disputes over e-discovery and a proposal for how to resolve them.

Topics for Rule 26(f) Conference

The Standing Order calls for a more detailed filing based on the Rule 26(f) conference. Federal Rule of Civil Procedure 26(f) already requires the parties to discuss various issues regarding ESI; the Standing Order fleshes out those requirements with more specific expectations. The Standing Order includes a "Joint Electronic Discovery Submission" form, described as "a checklist of electronic discovery issues to be addressed at the Rule 26(f) conference." Parties would be well-advised to be prepared to cover all of those issues at the conference itself, including:

  • Preservation: The agreed scope and methods of preservation, including "retention of electronic data and implementation of a data preservation plan; identification of potentially relevant data; disclosure of the programs and manner in which the data is maintained; identification of computer system(s) utilized; and identification of the individual(s) responsible for data preservation."
  • Search and Review: The parties' positions on a variety of questions regarding how search will proceed, including: (i) the exchange of keyword lists, hit reports, and responsiveness rates; (ii) the potential use of concept searches, "machine learning" algorithms, and "other advanced analytical tools"; (iii) limitations on the fields and file types to be searched; (iv) plans for backup, archival, legacy, and deleted ESI; and (v) testing and sampling.
  • Sources of ESI: The parties' positions on such contentious topics as "databases, instant messages, web sites, blogs, social media, ephemeral data, [and] electronically stored information in the custody or control of non-parties."
  • Forms of Production: The agreed-upon production format, including plans for document types that will be produced in native format, such as spreadsheets.
  • Inadvertent Disclosure: The parties' agreement, if any, regarding their ability to "claw back" inadvertently produced documents over which they claim a privilege. 
  • Cost: The parties are expected to "have analyzed their client's data repositories and have estimated the costs associated with the production of electronically stored information." The Standing Order also asks for the parties' positions on cost allocation and the reduction of discovery costs through shared discovery vendors and document repositories.

Best Practices

While the Standing Order only applies to SDNY cases, in many ways it embodies best practices for e-discovery generally. In fact, the SDNY Standing Order provides useful checklists for early ESI discussions regardless of the venue of the litigation. And parties should keep in mind that other jurisdictions, such as the Seventh Circuit and the Delaware District Courts, have implemented similar programs.

In general, the SDNY Standing Order embodies the judiciary's view that parties cannot simply say "I don't know" with respect to issues such as data retention, restoration of backup media, and other electronic discovery topics. More and more courts are implementing programs designed to force parties to educate themselves on e-discovery issues so as to engage in meaningful discussions regarding ESI with opposing counsel and the court early in a case. The SDNY Standing Order even requires counsel to "certify that they are sufficiently knowledgeable in matters relating to their clients' technological systems to discuss competently issues relating to electronic discovery or have involved someone competent to address these issues on their behalf."

A few simple practices can help companies prepare for obligations like those in the SDNY Standing Order:

  • Document (and follow) e-discovery practices and policies.
  • Maintain written document retention policies and a map of the company's data.
  • Recommend that outside counsel become well-versed in e-discovery issues.
  • Consider hiring dedicated discovery counsel to assist with e-discovery matters.

Learn more about Mayer Brown's Electronic Discovery & Records Management practice.

Visit us at www.mayerbrown.com.

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This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.