IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
: CIVIL ACTION
Plaintiff :
:
v. : NO.
:
:
Defendant :
ORDER GOVERNING ELECTRONIC DISCOVERY
AND NOW, this day of , 20__, following a pretrial
conference, it is hereby ORDERED that the following default standards shall apply until
such time, if ever, the parties conduct e-discovery on a consensual basis:
1. Exchange of e-discovery materials: Prior to , 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;
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;”
g. A description of any problems reasonably anticipated to arise in
connection with e-discovery.
2. E-discovery liaison: No later than , 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, 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
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consistency and thoroughness and, generally, to facilitate the e-discovery process.
3. Search methodology: If the parties intend to employ an electronic search
to locate relevant electronic documents, the parties shall disclose, within thirty days, any
restrictions as to the scope and the 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).
4. 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 Rule
26(b)(2) of the Federal Rules of Civil Procedure;
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 Rule 34(b) shall not be
permitted, absent exceptional circumstances where good cause and specific need have
been demonstrated.
5. Format: If 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.
6. Retention: 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 Rule 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
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maintained by the individual custodians shall not be altered;
b. Provide notice as to the criteria used for spam and/or virus filtering
of e-mails and attachments; documents filtered out by such systems shall be deemed
non-responsive so long as the criteria underlying the filtering are reasonable.
Within seven 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.
7. 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.
8. Costs: Generally, the costs of discovery shall be borne by each party.
However, the court will apportion the costs of electronic discovery upon a showing of
good cause.
BY THE COURT:
HODGE, KELLEY B., J.
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