applicable provisions.
Guideline 2.02 (Rule 26(f) Meet and Confer)
At the required Rule 26(f) meet and confer conference, when a case involves electronic
discovery, the topics that the parties should consider discussing include: 1) preservation; 2)
systems that contain discoverable ESI; 3) search and production; 4) phasing of discovery; 5)
protective orders (including application of LCvR 16.1.D and Fed. R. Evid. 502); and 6)
opportunities to reduce costs and increase efficiency. In order to be meaningful, the meet and
confer should involve direct communications between counsel (preferably, in person and/or by
telephone), and be as sufficiently detailed on these topics as is appropriate in light of the
specific claims and defenses at issue in the case. The topics to discuss include those set forth
in Question 11 of the Rule 26(f) report set forth in “Appendix LCvR 16.1.A” to the Local Rules
and Question 13 the Rule 26(f) report for Class Actions set forth in “Appendix LCvR 23.E” to the
Local Rules, as applicable. In addition, some or all of the details set forth in LCvR 26.2 and 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 may be useful to discuss, especially in
cases where the discovery of ESI is likely to be a significant cost or burden. The Court
encourages the parties to address any agreements or disagreements related to the above
matters in the joint case management statement required by LCvR 26.2. At the direction of the
Court, the parties may be required to submit a draft of a Stipulated Order re: Discovery of
Electronically Stored Information for Standard Litigation such as the model Order set forth in
“Appendix LCvR 26.2.E-MODEL ORDER” to the Local Rules.
Guideline 2.03 (Informal Discovery Regarding ESI)
Consistent with Guideline 1.02, the Court strongly encourages an informal discussion about the
discovery of ESI (rather than deposition) at the earliest reasonable stage of the discovery
process. Counsel, or others knowledgeable about the parties’ electronic systems, including how
potentially relevant data is stored and retrieved, should be involved or made available as
necessary. Such a discussion will help the parties be more efficient in framing and responding
November 1, 2016 Local Rules of Court
Western District of Pennsylvania
to ESI discovery issues, reduce costs, and assist the parties and the Court in the event of a
dispute involving ESI issues.
Guideline 2.04 (Disputes Regarding ESI Issues)
Disputes regarding ESI that counsel for the parties are unable to resolve shall be presented to
the Court at the earliest possible opportunity, such as at the initial Case Management
Conference. The Court may require additional meet and confer discussions, if appropriate. The
Court may appoint and/or the Parties may seek the appointment of an E-Discovery Special
Master or E-Discovery Mediator (http://www.pawd.uscourts.gov/ed-information) to assist the
Court in resolving ESI disputes.
EDUCATION GUIDELINES
Guideline 3.01 (Judicial Expectations of Counsel)
It is expected that counsel for the parties, including all counsel who have appeared, as well as
all others responsible for making representations to the Court or opposing counsel (whether or
not they make an appearance), will be familiar with the following in each litigation matter:
(a) The electronic discovery provisions of the Federal Rules of Civil Procedure,
including Rules 26, 33, 34, 37, and 45, and Fed. R. Evid. 502 (including
applicable Advisory Committee Reports); and
(b) LCvR 26.2, these Guidelines, and this Court’s Checklist for Rule 26(f) Meet and
Confer Regarding ESI set forth in “Appendix LCvR 26.2-CHECKLIST” and
Stipulated E-Discovery Order for Standard Litigation set forth in “Appendix LCvR
26.2.E-MODEL ORDER” to the Local Rules.
November 1, 2016 Local Rules of Court
Western District of Pennsylvania
APPENDIX LCvR 26.2.E-MODEL ORDER
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF PENNSYLVANIA
) Case Number: C xx-xxxx
)
)
) MODEL STIPULATED ORDER
Plaintiff(s), ) RE: DISCOVERY OF
) ELECTRONICALLY STORED
vs. ) INFORMATION FOR STANDARD
) LITIGATION
)
)
)
Defendant(s). )
_________________________________________)
1. PURPOSE
This Order will govern discovery of electronically stored information ("ESI'') (including
scanned hard-copy documents) in this case as a supplement to the Federal Rules of Civil
Procedure, this Court's Guidelines for the Discovery of Electronically Stored Information, and
any other applicable orders and rules.
2. COOPERATION
The parties are aware of the importance the Court places on cooperation and commit to
cooperate in good faith throughout the matter consistent with this Court's Guidelines for the
Discovery of ESI.
3. RESOURCE PERSON
The parties have identified to each other the resource persons who are and will be
knowledgeable about and responsible for discussing their respective ESI. Each ESI resource
person will be, or have access to those who are, knowledgeable about the technical aspects of
ESI, including the location, nature, accessibility, format, collection, search methodologies, and
production of ESI in this matter. The parties will rely on the resource persons, as needed, to
November 1, 2016 Local Rules of Court
Western District of Pennsylvania
confer about ESI and to help resolve disputes without court intervention. The resource person
is not necessarily the person who would be designated to testify related to a person or entity's
preservation efforts, document retention policies, collection efforts, or other related matters.
4. PRESERVATION
The parties have discussed their preservation obligations and needs and agree that
preservation of potentially relevant ESI (e.g., email, text ESI, voicemail, spreadsheets,
databases, etc.) will be reasonable and proportionate. To reduce the costs and burdens of
preservation and to ensure proper ESI is preserved, the parties agree that:
a) Only ESI accessed, modified, created or received between [the dates]
___________and __________ relating to the above-captioned matter will be preserved1;
b) Based upon their investigation to date, the parties have exchanged a list of the
types of ESI they believe should be preserved and the custodians, or general job titles or
descriptions of custodians, for whom they believe ESI should be preserved. The parties shall
add or remove custodians as reasonably necessary;
c) The parties have agreed/will agree on the number of custodians per party for
whom ESI will be preserved;
d) The following data sources are not reasonably accessible, and the parties agree
not to preserve the following: [e.g., backup media created before ________ , ESI in foreign
jurisdictions, data in slack space, digital voicemail, instant messaging, automatically saved
versions of ESI];
e) The following data sources will be preserved but not searched, reviewed, or
produced: [e.g., backup media of [named] system, systems no longer in use that cannot be
accessed, etc.];
f) In addition to the agreements above, the parties agree that data from the
following sources (a) could contain relevant information but (b) under the proportionality factors,
should not be preserved: [the following databases that by their nature change as new
information is added to them, accessed and modified dates, etc.]:
_____________________________________;
g) In terms of preservation, the parties agree/disagree that there is no need for
forensic images of servers, databases, computers, cell phones, etc. [except for the following
data sources: ]2
The parties may estimate or agree to the volume of data to be produced (i.e., number of
documents, files, or GB of data).
November 1, 2016 Local Rules of Court
Western District of Pennsylvania
5. SEARCH AND IDENTIFICATION
The parties agree that in responding to an initial Fed. R. Civ. P. 34 request, or earlier if
appropriate, they will meet and confer about methods to search ESI in order to identify ESI that
is subject to production in discovery and filter out ESI that is likely not subject to discovery. The
parties are permitted to use reasonable search methods to narrow down the ESI to be reviewed
for production in discovery (e.g., search terms, technology assisted review, deduplication,
elimination of correspondence with attorneys, client self-collection efforts, etc.); however, the
parties must be prepared to discuss the reasonableness of such efforts.
6. PRODUCTION FORMATS
The parties agree to produce ESI in (check all that apply) TIFF, native, PDF,
and/or paper or a combination thereof (check all that apply) file formats.3 If particular ESI
warrants a different format, the parties will cooperate to arrange for the mutually acceptable
production of such ESI.4 The parties agree not to degrade the searchability of ESI as part of the
document production process, and have discussed the necessary level of resolution to permit
the effective use of produced ESI. Additionally, the parties agree to discuss appropriate load
files, if any.
To the extent the parties disagree, cost-shifting may occur to the extent a party is required to
expend resources on imaging which the Court determines to be unnecessary or not
proportional.
To the extent production is not in native format, the parties should consider agreement on
metadata fields to be produced.
By way of example, the parties could agree to produce excel ESI in native format while
providing other ESI in TIFF format with conventional production numbering (Pl 00001) and load
files.
November 1, 2016 Local Rules of Court
Western District of Pennsylvania
7. PHASING
When the parties require some discovery prior to ADR/mediation, the parties agree to
phase the production of ESI. The initial production will be from the following sources and
custodians:_______________________________________________________________.
This agreement will not limit the parties' discovery if ADR/mediation is unsuccessful. However,
the parties will continue to explore appropriate and proportional phasing of discovery throughout
the discovery process.
When a party propounds discovery requests pursuant to Fed. R. Civ. P. 34, the parties
agree to phase the production of ESI and the initial production will be from the following sources
and custodians:_______________________________________________________.5
Following the initial production, the parties will continue to prioritize the order of subsequent
productions.
8. ESI PROTECTED FROM DISCOVERY OR PUBLIC DISCLOSURE
a) Pursuant to Fed. R. Evid. 502(b) and (d), the production of ESI which is
privileged or is protected trial preparation material is not a waiver of privilege or protection from
discovery in this case or in any other federal, state, arbitration or other proceeding so long as it
was: [the parties may include their stipulated agreement, if any as to waiver of privilege, in this
order or in a separate order as set forth in the Order implementing Federal Rule of Evidence
502(d) set forth in “Appendix LCvR 16.1.D” to the Local Rules].6
b) The parties may agree upon a "quick peek" process, without waiver of privilege
or protection as trial preparation material, pursuant to Fed. R. Civ. P. 26(b)(5).
c) Communications involving trial counsel that post-date the filing of the complaint
need not be placed on a privilege log.
A phased or iterative approach may be used to conduct the ESI (e.g., by issue, timeframe,
custodians, databases, issue, liability, or damages).
This Paragraph 8 can be modified to limit (or entirely eliminate) the situations in which a
producing party (or non-party) could be found to have failed to take (i) reasonable steps to
prevent the disclosure of privileged or trial preparation material ESI, and/or (ii) prompt and
reasonable steps to rectify this error, as provided under Fed. R. Civ. P. 502(b)(2)-(3). This
paragraph can also be modified to address different types of produced materials to different
standards than those outlined in Fed. R. Evid. 502(b).
November 1, 2016 Local Rules of Court
Western District of Pennsylvania
d) Communications may be identified on a privilege log by category, rather than
individually, if agreed upon by the parties or ordered by the Court.
e) The parties have/have not agreed to use the Form Inadvertent Production
Provision of LCvR 16.1.D (The Clawback Agreement), and its terms are incorporated herein.
f) The parties have/have not agreed to use the Form Protective Order (add
hyperlink) (App. LPR 2.2) for protection of Confidential Information, such as trade secrets, and
its terms are incorporated herein.
9. MODIFICATION
This Stipulated Order may be modified by a Stipulated Order of the parties or by the
Court for good cause shown.
IT IS SO STIPULATED, through Counsel of Record.
Dated:
Counsel for Plaintiff
Dated:
Counsel for Defendant
IT IS SO ORDERED that the foregoing Agreement is approved.
Dated:
UNITED STATES DISTRICT/MAGISTRATE
JUDGE
November 1, 2016 Local Rules of Court
Western District of Pennsylvania
APPENDIX LCvR/LCrR 83.2.A CERTIFICATION
CERTIFICATION FOR BAR ADMISSION FOR THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
I, ______________________________________________, do certify as follows:
1. I am a member in good standing of the Bar of:
a. The Supreme Court of Pennsylvania ____________________, Bar #
b. The United States District Court for the
c. The Supreme Court of the United States
2. I am a member in good standing of the following state Bars/Bars of United States District
Courts (also note Bar identification numbers):
3. I am affiliated with the law firm of
or
I am in the sole practice of law
4. My business address, telephone number and email address are:
5. I am a registered user of the CM/ECF electronic docketing system of this Court.
6. I have read, know and understand the Local Rules of this Court.
7. The following is a listing and description any prior disciplinary proceedings against me that
resulted in a non-confidential negative finding or sanction against me (if none, so state):
8. Attached is a certificate of good standing from the Bar of ___________________ that is
current within the prior twelve (12) months.
I DECLARE UNDER THE PENALTIES FOR PERJURY THAT THE FOREGOING IS TRUE
AND CORRECT. EXECUTED BY ME ON .
SIGNATURE:
STATEMENT OF MOVING ATTORNEY
I, _________________________________________, A MEMBER IN GOOD STANDING OF
THE BAR OF THIS COURT, DO HEREBY CERTIFY THAT I BELIEVE THE ABOVE
CANDIDATE FOR ADMISSION TO THE BAR OF THIS COURT IS OF GOOD MORAL AND
PROFESSIONAL CHARACTER AND, TO THE BEST OF MY KNOWLEDGE, IS ELIGIBLE
FOR ADMISSION TO THE BAR OF THIS COURT.
NAME:
DATE:
November 1, 2016 Local Rules of Court
Western District of Pennsylvania
APPENDIX LCvR/LCrR 83.2.B-MOTION
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
___________________________ )
)
vs. ) Civil Action No. ____________
)
___________________________ )
)
MOTION FOR ADMISSION PRO HAC VICE OF ____________________
[Affiant], undersigned counsel for [Plaintiff/Defendant] ________, hereby moves that
[Affiant] be admitted to appear and practice in this Court in the above-captioned matter as
counsel pro hac vice for [Plaintiff/Defendant] ________ in the above-captioned matter pursuant
to LCvR 83.2 and LCvR 83.3, LCrR 83.2 and this Court's Standing Order Regarding Pro Hac
Vice Admissions dated May 31, 2006 (Misc. No. 06-151).
In support of this motion, undersigned counsel attaches the Affidavit for Admission Pro
Hac Vice of [Affiant] filed herewith, which, it is averred, satisfies the requirements of the
foregoing Local Rules and Standing Order.
Respectfully submitted,
Dated: _______________________________
[Affiant’s name] (Bar. ID NO. )
[Affiant’s Address/Contact Details]
Counsel for [Plaintiff/Defendant]
November 1, 2016 Local Rules of Court
Western District of Pennsylvania
APPENDIX LCvR/LCrR 83.2.B-AFFIDAVIT
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
___________________________ )
)
vs. ) Civil Action No. ____________
)
___________________________ )
)
AFFIDAVIT OF ________________ IN SUPPORT OF
MOTION FOR ADMISSION PRO HAC VICE
I, ____________________, make this affidavit in support of the motion for my admission
to appear and practice in this Court in the above-captioned matter as counsel pro hac vice for
[Plaintiff/Defendant]________ in the above-captioned matter pursuant to LCvR 83.2 and LCvR
83.3, LCrR 83.2 and this Court's Standing Order Regarding Pro Hac Vice Admissions dated
May 31, 2006 (Misc. No. 06-151).
I, ____________________, being duly sworn, do hereby depose and say as follows:
1. I am a [Lawyer/Partner/Associate] of the law firm [_______].
2. My business address is _____________________________.
3. I am a member in good standing of the bar[s] of _________________.
4. My bar identification number(s) [is/are] _______________________.
5. A current certificate of good standing from ________________ is attached to this
Affidavit as Exhibit ___.
6. [if applicable] The following are a complete list of any previous disciplinary
proceedings concerning my practice of law that resulted in a non-confidential
negative finding or sanction by the disciplinary authority of the bar of any state or
any United States court: : [Insert additional explanation as appropriate.]
7. I attest that I am a registered user of ECF in the United States District Court for
the Western District of Pennsylvania.
8. I attest that I have read, know and understand the Local Rules of Court for the
United States District Court for the Western District of Pennsylvania
November 1, 2016 Local Rules of Court
Western District of Pennsylvania
9. Based upon the foregoing, I respectfully request that I be granted pro hac vice
admission in this matter.
I certify and attest that the foregoing statements made by me are true. I am
aware that if any of the foregoing statements made by me are false, I am subject
to punishment.
Dated:
[Affiant]
