Ediscovery, California Style

The Northern District of California’s new guidelines, checklist and model order on ediscovery may not have quite the number of youtube views as Psy’s “Gangnam Style” music video (nearing 1,000,000,000), but they are incredibly well-crafted and a great starting point for attorneys trying to gain a stronger understanding of ediscovery. The Guidelines address some critical points not always considered under federal or state law, such as:

• Preservation is specifically tied to proportionality (arguably a point of confusion under the Federal Rules). Guideline 2.01(b).
• The duty to preserve does not hinge on receiving a preservation letter (or any letter for that matter). Guideline 2.01(c).
• Parties must work among themselves regarding preservation issues before getting the court involved. Guideline 2.01(d).
• Meet and Confer action items are far more expansive than those in Federal Rule 26(f).

The accompanying ESI checklist for use during the 26(f) meet and confer goes above and beyond what many other U.S. & state courts have implemented. The judiciary highly suggests you take a glance. A couple of highlights from the checklist:

• Parties should discuss the names/job titles/descriptions of “custodians for whom ESI will be preserved”.
• Under the “Search” section:

The last document is a model order for ediscovery issues. In three pages, the order covers cooperation, ediscovery liaisons, preservation, search, production formats, phasing, documents protected from discovery and modification.

The best part of the model order is that it that it uses plain English. For example, section 4(a) states: “Only ESI created or received between ________ and ________ will be preserved.” Just think about how many ediscovery issues could be simplified using this section of the new model order. A few off the top of my head, include:

• “Reasonable anticipation of litigation” murkiness is taken totally out of the equation.
• Proportionality issues are forced out in the open early.
• Court, client and attorney resources are maximized as these issues won’t slow down discovery later.
• It implicitly encourages parties to think about, discuss, and cooperate on preservation issues early, as they know that the court is armed with a powerful model order.

Check out these dangerously well-drafted resources if you need some cold hard proof that courts are pushing the envelope on ediscovery. What do you think? Do the California resources go far enough? Too far? If you have any favorite snippets, drop me a note via Twitter: @MicheleCSLange