Making The Most Of Delaware’s New E-Discovery Rules: Tips 1-5
(Part 1 of 3) On December 8, 2011, the Delaware federal courts adopted a "Default Standard for Discovery, Including Discovery of Electronically Stored Information ('ESI')” – commonly referred to as the “Default Standard”.
The Default Standard has several key components that prescribe the process of e-discovery and the information sharing that must occur between opposing counsel. Notably, Rule 26(f) of the new Default Standard compels the parties to engage in substantive dialog around various aspects of the e-discovery process that is about to be undertaken. The Default Standard also requires that prior to the Rule 26(f) conference, the parties will have exchanged specific lists of information.
This article describes the new Default Standard for e-discovery and offers practical tips for practitioners.
Tip #1: Confer with Human Resources about Key Custodians
The Default Standard requires counsel to create a list of likely custodians with relevant electronically stored information. The list must provide the individual’s title and responsibility. Prior to the Rule 26(f) meeting, counsel should confer not only with in-house counsel but also with the client’s human resource representative to verify that the title and responsibilities being stated are both accurate and up to date. Counsel might also want to identify who are full time and who are contractors as contractors may be using their own computer systems.
Tip #2: Work with Technology Stakeholders about Relevant Systems
Counsel, in creating the list of custodians and relevant electronically stored information, should work with the Client’s technology stakeholders. This information may require a significant effort by the Client, and so counsel should engage early with the Client’s technology team to avoid a time crunch. In-house counsel should consider working with the information technology group to develop a list, routinely updated monthly or quarterly, that contains these details and can be accessed by counsel without requiring legal to engage IT each time such information is required. Although this might appear daunting, the long term benefit of implementing such a system with the requisite underlying process delivers value to the legal and technology groups, saving money, time, and resources. It is important to note that many IT departments have applications up and running to manage user profiles.
Tip #3: Establish a Retention Coordinator
Counsel is compelled to name an individual responsible for ESI retention and provide a general description of the retention policies for the systems identified as set-forth in Relevant Systems above. The retention coordinator is required to perform the following: (a) ensure that the e-mail of identified custodians is not permanently deleted in the ordinary course of business and that all other information maintain by the custodians is not tampered with or destroyed; (b) provide notice as to the spam and/or virus filtering criteria used by e-mail systems – all such messages are deemed to be unresponsive as long as the filtering criteria is reasonable; and (c) within seven days of identifying the relevant custodians, the retention coordinator must implement the aforesaid procedures and files a statement of compliance with the court.
Counsel and in-house counsel should proactively reach out to their Clients IT team to identify the appropriate Retention Coordinator. The actual number or title of individuals is not specified by the Default Standard, but it would be logical to assume that at least one or two people within the IT leadership group would be appropriate. Identifying IT authorities early on saves time and ensures that the parties will not accidentally end up eliminating a system that is subject to a litigation hold, which has been known to happen. While many corporations have a retention policy, few have a person designated for its enforcement. Enforcement typically occurs on a case-by-case basis when available storage space becomes an issue so Counsel should take pains to clarify what is policy and what is practice.
Tip #4: Identify Potential Problems
Parties should identify and provide notice to opposing counsel of any reasonably anticipated problems that might arise during the course of e-discovery. Because hindsight is 20/20 in-house counsel might want to compose a list of prior e-discovery issues that have arisen and utilize it appropriately. One possible implication of identifying problems earlier rather than later is that it can potentially lower the costs associated with the discovery process.
Tip #5: Document Inaccessible and Not Relevant Systems
The Default Standard provides guidance around the timing of e-discovery. Specifically, it states that, upon receipt of a request for production under Fed. R. Civ. P. 34, the parties shall search systems that are reasonably accessible and produce such information in accordance with Fed. R. Civ. P. 26(b). This means where counsel fails to identify systems that are inaccessible and/or not relevant, counsel should be prepared to search and produce from such systems.
 In the alternative, the new standard for e-discovery is that if no discovery agreement has been reached prior to the Fed. R. Civ. 16 scheduling conference, then the rules set-forth in the new Default Standard governs until the parties elect to conduct discovery in a cooperative fashion.
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