IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
: CIVIL ACTION
:
v. :
:
: NO.
ORDER GOVERNING ELECTRONIC DISCOVERY
NOW, this day of , 20__, in anticipation of the Rule 16 conference, it is
ORDERED as follows:
1. Introduction. In the event the parties cannot reach an agreement on how
to conduct electronic discovery ("e-discovery") before the Rule 16 scheduling
conference, the following default standards shall apply until such time, if ever, the
parties conduct e-discovery on a consensual basis.
2. Exchange of e-discovery materials. Prior to the Rule 26(f) conference, the
parties shall exchange the following information:
a. a list of the most likely custodians of relevant electronic materials,
including a brief description of each person's title and responsibilities; and,
b. a list of each relevant electronic system that has been in place at all
relevant times and a general description of each system, including the nature, scope,
character, organization, and formats employed in each system.
c. the parties should also include other pertinent information about
their electronic documents and whether those electronic documents are of limited
accessibility, that is, those created or used by electronic media no longer in use,
maintained in redundant electronic storage media, or for which retrieval involves
substantial cost;
d. the name of the individual responsible for the party's electronic
document retention policies ("the retention coordinator");
e. a general description of the party's electronic document retention
policies;
f. the name of the individual who shall serve as the party's "e-
discovery liaison"; and,
g. A description of any problems reasonably anticipated to arise in
connection with e-discovery.
To the extent that the state of the pleadings does not permit a meaningful
discussion of the above issues by the time of the Rule 26(f) conference, the parties shall
either agree on a date by which this information will be mutually exchanged or submit
the issue for resolution by the court at the Rule 16 scheduling conference.
3. E-discovery conference. The parties shall discuss the parameters of their
anticipated e-discovery at the Rule 26(f) conference and shall be prepared to address e-
discovery at the Rule 16 scheduling conference with the court.
4. E-discovery liaison. To promote communication and cooperation between
the parties, each party shall designate a single individual through whom all e-discovery
requests and responses are made ("the e-discovery liaison"). Regardless of whether the
e-discovery liaison is an attorney (in-house or outside counsel), a third party consultant,
or an employee of the party, he or she must be:
a. familiar with the party's electronic systems and capabilities in order
to explain these systems and answer relevant questions;
b. knowledgeable about the technical aspects of e-discovery,
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including electronic document storage, organization, and format issues;
c. prepared to participate in e-discovery dispute resolutions; and,
d. responsible for organizing the party's e-discovery efforts to insure
consistency and thoroughness and, generally, to facilitate the e-discovery process.
5. Search methodology. If the parties intend to employ an electronic search
to locate relevant electronic documents, the parties shall disclose any restrictions as to
scope and method which might affect their ability to conduct a complete electronic
search of the electronic documents. The parties shall reach agreement as to the method
of searching, and the words, terms, and phrases to be searched with the assistance of
the respective e-discovery liaisons, who are charged with familiarity with the parties'
respective systems. The parties also shall reach agreement as to the timing and
conditions of any additional searches which may become necessary in the normal
course of discovery. To minimize the expense, the parties may consider limiting the
scope of the electronic search (e.g., time frames, fields, document types).
6. Timing of e-discovery. Discovery of electronic documents shall proceed in
the following sequenced fashion:
a. after receiving requests for document production, the parties shall
search their documents, other than those identified as limited accessibility electronic
documents, and produce responsive electronic documents in accordance with Fed. R.
Civ. P. 26(b)(2);
b. electronic searches of documents identified as of limited
accessibility shall not be conducted until the initial electronic document search has been
completed;
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c. requests for information expected to be found in limited accessibility
documents must be narrowly focused with a factual basis supporting the request; and,
d. on-site inspections of electronic media under Fed. R. Civ. P. 34(b)
shall not be permitted, absent exceptional circumstances where good cause and
specific need have been demonstrated.
7. Format. If, during the course of the Rule 26(f) conference, the parties
cannot agree to the format for document production, electronic documents shall be
produced to the requesting party as image files (e.g., PDF or TIFF). When the image file
is produced, the producing party must preserve the integrity of the electronic
document's contents, i.e., the original formatting of the document, its metadata and,
where applicable, its revision history. After initial production in image file format is
complete, a party must demonstrate particularized need for production of electronic
documents in their native format.
8. Retention. Within the first thirty (30) days of discovery, the parties shall
negotiate an agreement that outlines the steps each party shall take to segregate and
preserve the integrity of all relevant electronic documents. In order to avoid later
accusations of spoliation, a Fed. R. Civ. P. 30(b)(6) deposition of each party's retention
coordinator may be appropriate.
The retention coordinators shall:
a. take steps to ensure that e-mail of identified custodians shall not be
permanently deleted in the ordinary course of business and that electronic documents
maintained by the individual custodians shall not be altered; and,
b. provide notice as to the criteria used for spam and/or virus filtering
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of e-mails and attachments; documents filtered out by such systems shall be deemed
nonresponsive so long as the criteria underlying the filtering are reasonable.
Within seven (7) days of identifying the relevant document custodians, the retention
coordinators shall implement the above procedures and each party's counsel shall file a
statement of compliance.
9. Privilege. Electronic documents that contain privileged information or
attorney work product shall be immediately returned if the documents appear on their
face to have been inadvertently produced or if there is notice of the inadvertent
production. All copies shall be returned or destroyed by the receiving party.
10. Costs. Generally, the costs of discovery shall be borne by each party.
However, the court will apportion the costs of e-discovery upon a showing of good
cause.
_________________________
TIMOTHY J. SAVAGE, J.
Rev. 022818
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