□ Have agreed on alternative non-waiver language, which either is or
will be incorporated within the ESI discovery plan.
□ Are unable to agree on appropriate non-waiver language.
f. EDSM and E-Mediator. Does any party believe that the appointment
of an E-Discovery Special Master (“EDSM”) or E-Mediator
(http://www.pawd.uscourts.gov/ed-information) would help resolve
ESI discovery issues in this case?
□ Yes □ No
g. Other. Identify all outstanding disputes concerning any ESI issues:
________________________________________________________________
________________________________________________________________
________________________________________________________________
14. Set forth whether the parties have elected to schedule the Post-Discovery Status
Conference following the completion of Fact Discovery or Expert Discovery; in
either event the parties shall be prepared at the Post-Discovery Status Conference
to discuss and/or schedule the following: (The parties are not required during their
Rule 26(f) Conference to consider or propose dates for the items identified below.
Those dates will be determined, if necessary, at the Post-Discovery Status Conference.
Lead trial counsel for each party and each unrepresented party are required to attend
the Post-Discovery Status Conference with their calendars in hand to discuss those
items listed below that require scheduling. In addition, a representative with settlement
authority of each party shall be required to attend; representatives with settlement
authority of any insurance company providing any coverage shall be available
throughout the Conference by telephone):
a. Settlement and/or transfer to an ADR procedure;
b. Dates for the filing of expert reports and the completion of expert discovery
as itemized in sub-paragraphs 11.b. through 11.h., above, if the parties
elected to defer such discovery until after the Post-Discovery Status
Conference;
c. Dates by which dispositive motions pursuant to Fed. R. Civ. P. 56, replies
thereto and responses to replies should be filed;
d. Dates by which parties' pre-trial statements should be filed;
e. Dates by which in limine and Daubert motions and responses thereto
should be filed;
f. Dates on which motions in limine and Daubert motions shall be heard;
November 1, 2016 Local Rules of Court
Western District of Pennsylvania
g. Dates proposed for final pre-trial conference;
h. Presumptive and final trial dates.
15. Set forth any other order(s) that the parties agree should be entered by the court
pursuant to Fed. R. Civ. P. 16(b) or 26(c):
16. Set forth whether the parties anticipate that the court may have to appoint a
special master to deal with any matter and if so, specify the proposed role of any
such master and any special qualifications that such master may require to
perform such role:
17. If the parties have failed to agree with regard to any subject for which a report is
required as set forth above, except for proposed dates required in paragraph 10
and/or 11, above, briefly set forth the position of each party with regard to each
matter on which agreement has not been reached:
18. Set forth whether the parties have considered the possibility of settlement of the
action and describe briefly the nature of that consideration:
Respectfully submitted,
November 1, 2016 Local Rules of Court
Western District of Pennsylvania
Appendix LCvR 26.2.C-CHECKLIST
United States District Court
Western District of Pennsylvania
CHECKLIST FOR RULE 26(f) MEET AND CONFER
REGARDING ELECTRONICALLY STORED INFORMATION
In cases where electronically stored information will be exchanged between the parties, the
Court encourages the parties to engage in on-going meet and confer discussions and use the
following Checklist to guide those discussions. These discussions should be framed in the
context of the specific claims and defenses involved. The usefulness of particular topics on the
checklist, and the timing of discussion about these topics, may depend on the nature and
complexity of the matter. Parties may obtain discovery of such materials, and on such terms, as
permitted by the Federal Rules of Civil Procedure, the Local Rules of Court, and the applicable
Orders of Court.
I. Preservation
܆ The ranges of creation, last modified, last accessed, or receipt dates for any
known 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 (including source and volume) from sources that (a) the
party believes could contain relevant information but (b) has determined, under
the proportionality factors, should not be preserved.
܆ Whether or not to continue any interdiction of any document destruction program,
such as ongoing erasures of e-mails, voicemails, and other electronically-
recorded material and/or any ongoing preservation requirements (i.e.,
“evergreen”).
܆ 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, legacy
data, and human resource records.
܆ Any disputes related to scope or manner of preservation.
܆ Any non-party to consult regarding ESI, including entities over which a party has
control.
II. Resource Person
܆ The identity of each party’s e-discovery resource person(s).
November 1, 2016 Local Rules of Court
Western District of Pennsylvania
III. Informal Discovery About Locations of Data and Types of Systems
܆ Identification of systems from which discovery will be prioritized (e.g., email,
structured databases, database types, and unstructured data).
܆ 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.
܆ Whether there are known relevant file paths or data locations.
IV. 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 potentially discoverable ESI that will not be preserved
consistent with proportionality concerns.
V. Search
܆ The search method(s), including specific words or phrases or other methodology
(cluster technology/predictive coding), 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.
VI. Phasing
܆ Whether it is appropriate to conduct discovery of ESI in a phased or iterative
approach (e.g., by issue, timeframe, custodians, databases, liability v. damages):
܆ 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. (i.e., known
relevant file paths, email between specific parties during a given period of time).
܆ 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 time period during which discoverable information was most likely to have
been created or received.
November 1, 2016 Local Rules of Court
Western District of Pennsylvania
܆ The issues that are relevant to any party’s claim or defense.
VII. 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 searchability of ESI is
not degraded when produced.
VIII. Privilege
܆ How any production of privileged information or trial preparation material will be
handled.
܆ Whether the parties can agree upon alternative ways to identify documents
withheld on the grounds of privilege or protection of trial preparation material to
reduce the burdens of such identification.
܆ Whether the parties will enter into a Fed. R. Evid. 502(d) Stipulation and Order
that addresses inadvertent or agreed production, and if so, the form and content
of such Order.
IX. E-Discovery Special Masters and/or E-Mediators
܆ Would it be helpful to the parties for the Court to appoint an E-Discovery Special
Master and/or E-Mediator? For further information, see the Court’s official
website at http://www.pawd.uscourts.gov/ed-information.
X. Expedited or Limited Discovery
܆ Are the parties willing to engage in limited discovery or an expedited discovery
schedule?____________________________
November 1, 2016 Local Rules of Court
Western District of Pennsylvania
Appendix LCvR 26.2.C-GUIDELINES
United States District Court
Western District of Pennsylvania
GUIDELINES FOR THE DISCOVERY OF
ELECTRONICALLY STORED INFORMATION
GENERAL GUIDELINES
Guideline 1.01 (Purpose)
Discovery often now includes the review and production of electronic information. The
discovery of electronically stored information “ESI” provides many benefits such as the ability to
search, organize, and target the ESI using the text and associated data. At the same time, the
Court is aware that the discovery of ESI is a potential source of cost, burden, and delay. These
Guidelines should assist the parties as they engage in electronic discovery. The purpose of
these Guidelines is to encourage reasonable electronic discovery with the goal of limiting the
cost, burden and time spent, while ensuring that information subject to discovery is preserved
and produced to allow for fair adjudication of the merits. At all times, the discovery of ESI
should be handled consistently with Fed. R. Civ. P. 1 to “secure the just, speedy, and
inexpensive determination of every action and proceeding.”
These Guidelines also promote, when ripe, the early resolution of disputes regarding the
discovery of ESI without Court intervention. These guidelines are a supplement to LCvR 26.2.
Guideline 1.02 (Cooperation)
The Court expects cooperation on issues relating to the preservation, collection, search, review,
and production of ESI. The Court notes that an attorney’s representation of a client is not
compromised by conducting discovery in a cooperative manner. Cooperation in reasonably
limiting ESI discovery requests on the one hand, and in reasonably responding to ESI discovery
requests on the other hand, tends to reduce litigation costs and delay. The Court emphasizes
the particular importance of cooperative exchanges of information at the earliest possible stage
of discovery, including during the parties’ Fed. R. Civ. P. 26(f) conference.
Guideline 1.03 (Discovery Proportionality)
The proportionality standard set forth in Fed. R. Civ. P. 26(b)(1) and 26(g)(1)(B)(iii) should be
applied to the discovery plan and its elements, including the preservation, collection, search,
review, and production of ESI between parties.1 To assure reasonableness and proportionality
in discovery, parties should consider factors that include the importance of the issues at stake in
the litigation, the burden or expense of the proposed discovery compared to its likely benefit, the
amount in controversy, the parties’ resources, the parties’ relative access to relevant
information, and the importance of the discovery in adjudicating the merits of the case. To
further the application of the proportionality standard, discovery requests for production of ESI
and related responses should be reasonably targeted, clear, and as specific as practicable.
Fed. R. Civ. P. 45(c)(2)(B) outlines a different standard with regard to non-parties through its
direction to courts to protect, through measures that include fee-shifting, such non-parties from
significant discovery expenses.
November 1, 2016 Local Rules of Court
Western District of Pennsylvania
ESI DISCOVERY GUIDELINES
Guideline 2.01 (Preservation)
(a) At the outset of a case, or sooner if feasible, counsel for the parties should
discuss preservation. Such discussions should continue to occur periodically as
the case and issues evolve.
(b ) In determining what ESI to preserve, parties should apply the proportionality
standard referenced in Guideline 1.03. The parties should strive to define a
scope of preservation that is proportionate and reasonable and not
disproportionately broad, expensive, or burdensome.
(c) The Parties should be directed in their discussions concerning preservation by
the Checklist for Rule 26(f) Meet and Confer
Regarding Electronically Stored Information set forth in “Appendix LCvR 26.2.C-
CHECKLIST” to the Local Rules. At the direction of the Court, or at the request
of a party or the parties, a Court Order concerning preservation may be
submitted for Court approval, with the Stipulated Order re: Discovery of
Electronically Stored Information for Standard Litigation set forth in “Appendix
