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August 02, 2010

Discovery: ESI and Rule 26(f)'s meet-and-confer requirement.

Pittsburgh gets hip, smart and ready. If you view Western Pennsylvania as an obtuse, unoriginal and sleepy commercial backwater--an insular ex-steel region where execs from a tiny white male master class daily bark orders to lower castes before hitting the links--please think again. You're 40 years behind.

Do see "In re ESI: Local Rules Enhance Value of Rule 26(f) 'Meet & Confer' " by Joy Flowers Conti, a well-regarded U.S. district court judge, and Pittsburgh lawyer Richard Lettieri. The article appeared in the ABA's The Judges’ Journal, Volume 49, Number 2, Spring 2010. Ironically, most commercial trial lawyers who focus on federal courts know much less about electronically-stored information ("ESI"--routine e-mail, mainly) than they should. Whether you do litigation or transactional work, and especially if your client reps are in-house people or GCs, you'd better know lots.

Judge Conti, and Lettieri, who spent nearly two decades with Big Blue, do know more. Many of the lessons of the Conti-Lettieri article, we might add, are preventative and preemptive for non-litigators. Again, get your transactional people involved. All business lawyers need to get smarter on (1) ESI, (2) Rule 26, Fed. R. Civ. (a short but storied and common sense rule governing discovery generally) and (3) all federal local rules that tweak Rule 26. All three.

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It's an important area whether you defend cases against corporations or not. If you represent plaintiffs, of course, you will read it with interest to further your nefarious agendas against Corporate Personhood, Motherhood, Good Crops, and Stock Options. We are watching you guys.

Finally, you may want to take time out to learn about ESI and discovery. If you do, see along with the Conti-Lettieri piece: (1) Fed. R. Civ. P. 26--"Duty to Disclose; General Provisions Governing Discovery", (2) its 45 years of Advisory Committee Notes, and (3) the fine work and thinking reflected, and discussed in the article, in W.D. Pa. Local Rule 26.2, which you can pick up here and below.

LCvR 26.2 DISCOVERY OF ELECTRONICALLY STORED INFORMATION (U.S. District Court for the Western District of Pennsylvania)

A. Duty to Investigate. Prior to a Fed. R. Civ. P. 26(f) conference, counsel shall:

1. Investigate the client's Electronically Stored Information ("ESI"), such as email, electronic documents, and metadata, and including computerbased and other digital systems, in order to understand how such ESI isstored; how it has been or can be preserved, accessed, retrieved, and produced; and any other issues to be discussed at the Fed. R. Civ. P. 26(f) conference, including the issues in LCvR 26.2.C.

2. Identify a person or persons with knowledge about the client's ESI,
with the ability to facilitate, through counsel, preservation and discovery of ESI.

B. Designation of Resource Person. In order to facilitate communication and cooperation between the parties and the Court, each party shall, if deemed necessary by agreement under LCvR 26.2.C.7 or by the Court, designate a single resource person through whom all issues relating to the preservation and production of ESI should be addressed.

C. Duty to Meet and Confer. At the Fed. R. Civ. P. 26(f) conference, and upon a later request for discovery of ESI, counsel shall meet and confer, and attempt to agree, on the discovery of ESI, including:

1. The steps the parties have taken to preserve ESI;

2. The scope of ESI discovery and an ESI search protocol, including methods to filter the data, such as application of search terms or date ranges;

3. Procedures to deal with inadvertent production of privileged information under LCvR 16.1.D;

4. Accessibility of ESI, including but not limited to the accessibility of back-up, deleted, archival, or historic legacy data;

5. The media, format and procedures for preserving and producing ESI, including the media, format, and procedures for the Fed. R. Civ. P. 26(a)(1) initial disclosures;

6. Allocation of costs of preservation, production, and restoration (if possible and/or necessary) of any ESI;

7. The need for a designated resource person, as discussed in Section B above; and

8. Any other issues related to ESI.

Comment (June 2008)

1. LCvR 26.2.A.1 imposes a duty for counsel to discuss ESI with their client. It does not, in any way, alter a party's and counsel's obligations under law to preserve evidence, including ESI, when litigation is reasonably anticipated. Nothing in this section precludes a party from moving the Court for an appropriate preservation order.

2. Regarding LCvR 26.2.A.2, the person may be an individual party, a party's employee, a third-party, or a party's attorney. Local Rules of Court Western District of Pennsylvania December 1, 2009 22.

3. Regarding LCvR 26.2.B, the resource person must have sufficient familiarity with the party's ESI to meaningfully discuss technical issues and provide reliable information relative to the preservation and production of ESI. The resource person is permitted to, and, in fact, encouraged to, involve persons with technical expertise in these discussions, including the client, client's employee, or a third party. The resource person may be an individual party, a party's employee, a third party, or a party's attorney, and may be the same person referenced in LCvR 26.2.A.2.

4. Regarding LCvR 26.2.C, the parties have an ongoing obligation to supplement their disclosures. See Fed. R. Civ. P. 26.

5. Regarding LCvR 26.2.C.1, it may be necessary to segregate ESI in order to properly preserve it.

6. Regarding LCvR 26.2.C.4, "accessibility" is used in the same manner as Fed. R. Civ. P. 26(b)(2)(B) ("A party need not provide discovery of [ESI] from sources that the party identifies as not reasonably accessible because of undue burden or cost.").

7. Regarding LCvR 26.2.C.5, the media, format, and procedures for preserving ESI may differ from the media, format, and procedures for producing ESI. For example, a party may preserve ESI in native format, and the parties may agree on production in a different format. See Fed. R. Civ. P. 34(b).


Unless actual notice to the contrary is given in writing by the serving party, service under these Local Civil Rules of any Electronic document containing an electronic representation of the original signature of any person shall constitute a certification by the server that as of the time of service he or she is in possession
of the signer's actual original signature on a hard copy of the electronic document served. Service by a party or any counsel under LCvRs 33, 34 or 36 of responses to interrogatories, requests for Lroduction or requests for admission ("Written Discovery") shall constitute a certification by the server of such responses that no alteration has been made to the Written Discovery as originally served upon such party or counsel. The filing with the Court for any purpose by any party or counsel of Written Discovery or responses thereto served in electronic form pursuant to LCvRs 33, 34 and 36 shall constitute the certification by such party or counsel that the content of such electronic document so filed is the same as when it was served or received by the filing party.

Posted by Holden Oliver (Kitzbühel Desk) at August 2, 2010 11:59 PM


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