CHECKLIST FOR CONFERENCE OF COUNSEL
REGARDING ELECTRONICALLY STORED INFORMATION
Preservation
The ranges of creation or receipt dates for any ESI to be preserved.
The description of data from sources that are not reasonably accessible and that will not
be reviewed for responsiveness or produced, but that will be preserved pursuant to Federal
Rule of Civil Procedure 26(b)(2)(B).
The description of data from sources that (a) the party believes could contain relevant
information but (b) has determined, under the proportionality factors, is not discoverable
and should not be preserved.
Whether to continue any interdiction of any document destruction program, such as
ongoing erasures of e-mails, voicemails, and other electronically-recorded material.
The names and/or general job titles or descriptions of custodians for whom ESI will be
preserved (e.g., “HR head,” “scientist,” “marketing manager,” etc.).
The number of custodians for whom ESI will be preserved.
The list of systems, if any, that contain ESI not associated with individual custodians and
that will be preserved, such as enterprise databases.
Any disputes related to scope or manner of preservation.
ESI PMK
The identity of each party’s e-discovery Person(s) Most Knowledgeable.
Location and Types of Systems
Identification of systems from which discovery will be prioritized (e.g., email, finance, HR
systems).
Description of systems in which potentially discoverable information is stored.
Location of systems in which potentially discoverable information is stored.
How potentially discoverable information is stored.
How discoverable information can be collected from systems and media in which it is
stored.
1
Last revised: February 2018
Proportionality and Costs
The amount and nature of the claims being made by either party.
The nature and scope of burdens associated with the proposed preservation and
discovery of ESI.
The likely benefit of the proposed discovery.
Costs that the parties will share to reduce overall discovery expenses, such as the use of a
common electronic discovery vendor or a shared document repository, or other cost-saving
measures.
Limits on the scope of preservation or other cost-saving measures.
Whether there is relevant ESI that will not be preserved pursuant to Fed. R. Civ. P.
26(b)(1), requiring discovery to be proportionate to the needs of the case.
Search
The search method(s), including specific words or phrases or other methodology, that
will be used to identify discoverable ESI and filter out ESI that is not subject to discovery.
The quality control method(s) the producing party will use to evaluate whether a
production is missing relevant ESI or contains substantial amounts of irrelevant ESI.
Phased Discovery
Whether it is appropriate to conduct discovery of ESI in phases.
Sources of ESI most likely to contain discoverable information and that will be included
in the first phases of Fed. R. Civ. P. 34 document discovery.
Sources of ESI less likely to contain discoverable information from which discovery will
be postponed or avoided.
Custodians (by name or role) most likely to have discoverable information and whose
ESI will be included in the first phases of document discovery.
Custodians (by name or role) less likely to have discoverable information and from
whom discovery of ESI will be postponed or avoided.
The period during which discoverable information was most likely to have been created
or received.
2
Last revised: February 2018
Form of Production
The formats in which structured ESI (database, collaboration sites, etc.) will be produced.
The formats in which unstructured ESI (email, presentations, word processing, etc.) will
be produced.
The extent, if any, to which metadata will be produced and the fields of metadata to be
produced.
The production format(s) that ensure(s) that any inherent searchablility of ESI is not
degraded when produced.
Privilege Issues
How any production of privileged or work product protected information will be
handled.
Whether the parties can agree upon alternative ways to identify documents withheld on
the grounds of privilege or work product to reduce the burdens and cost of such
identification.
Whether the parties will enter a Fed. R. Evid. 502(d) Stipulation and Order, or a Fed. R.
Evid. 502(e) Agreement, that addresses inadvertent or agreed production.
3
Last revised: February 2018
