(a) Interrogatories; Requests for Admission; Requests for Production of Documents.
(1) When answering or objecting to interrogatories, requests for admission or
requests for production of documents, the replying or objecting party shall set
forth immediately preceding the answer or objection, the discovery request
with respect to which answer or objection is made.
(2) Parties may electronically file a “Notice of Service” setting forth the date on
which the interrogatories, requests for admission or requests for production of
documents or the responses thereto were served. Interrogatories, Requests for
Production of Documents, and Requests for Admission shall not be filed,
except as allowed by LR 26.1(a)(3) or LR 26.1(b).
(3) A motion for leave of Court to submit additional interrogatories beyond the
number allowed by Fed. R. Civ. P. 33 shall include copies of such additional
interrogatories to be submitted, along with a statement as to the necessity for
such additional discovery, its relevance or likelihood to lead to admissible
evidence, and the fact that it cannot be obtained from other sources, as well as
the certification required by LR 7.2(a).
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(b) Discovery Motions.
(1) Discovery motions are subject to the requirements of LR 7.2(a).
(2) Motions to compel discovery in accordance with Fed. R. Civ. P. 26 through 37
shall:
(A) quote verbatim or attach copies of each deposition question,
interrogatory, request for admission, or request for production to which
objection has been taken or incomplete response has been given; and,
(B) include the response and the grounds assigned for the objection (if not
apparent from the objection), if any.
(3) Responses to motions to compel discovery shall state with particularity the
basis for, and, when appropriate, include evidentiary support for each objection
to the requested discovery or given response.
(4) Parties shall file only those portions of the deposition, interrogatory, request for
documents, request for admission, or response that are at issue.
(c) Subpoena in Aid of Discovery. Absent an order of the Court to the contrary, each
party to the action in which a subpoena is served requiring the production of
documents or an inspection shall have the right to review and copy documents
produced pursuant to such a subpoena and to participate in the inspection.
(d) Parties shall supplement disclosures and discovery responses as required by Fed. R.
Civ. P. 26(e) no later than 30 days before the trial date.
(e) E-Discovery.
(1) Introduction. Counsel for parties should confer as to whether the parties
will seek discovery of electronically stored information (“e-discovery”). The
Court expects the parties to cooperatively agree on how to conduct e-
discovery. Any agreement reached shall be submitted to the Court for
approval. In the event that such agreement has not been reached and
approved by the Court by the Fed. R. Civ. P. 16 scheduling conference, the
following default standards shall apply until such time, if ever, the parties
reach agreement and the Court approves the plan to conduct e-discovery.
(2) Discovery Conference. Parties shall discuss the parameters of their
anticipated e-discovery at the Fed. R. Civ. P. 26(f) conference, as well as at
the Rule 16 scheduling conference with the Court, consistent with the
procedures outlined below. Prior to the Rule 26(f) conference, the parties
shall exchange the following information:
(A) A list of the persons most likely to have relevant electronically stored
information (“identified custodians”), including a brief description of
each person’s title and responsibilities (see Para. 7).
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(B) A list of each relevant electronic information system that has been in
place at all pertinent time periods including the physical location of
the system, the type of system, whether the system is archival or
active, and the person most knowledgeable about the system.
(C) The parties should also include other pertinent information about their
electronically stored information and whether that electronically stored
information is not reasonably accessible. Electronically stored
information not reasonably accessible may include information created
or used by electronic media, software, or hardware that is no longer in
use maintained in redundant electronic storage media, or for which
retrieval involves substantial cost.
(D) The name of the individual designated by a party as being most
knowledgeable regarding that party’s electronic document retention
policies (“the retention coordinator”), as well as a general description
of the party’s electronic document retention policies for the systems
identified above (see Para 7).
(E) The name of the individual who shall serve as that party’s “e-
discovery coordinator” (see Para. 3).
(F) 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 by the Rule 26(f)
conference, the parties shall either agree on a date that this
information will be mutually exchanged or submit the issue for
resolution by the Court at the Rule 16 scheduling conference.
(3) E-discovery Coordinator. In order to promote communication and
cooperation between the parties, each party to a case shall designate a
single individual through whom all e-discovery requests and responses are
coordinated (“the e- discovery coordinator”). Regardless of whether the e-
discovery coordinator 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 information 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; and
(C) Prepared to participate in e-discovery dispute resolutions.
The e-discovery coordinators shall be responsible for organizing each
party’s e-discovery efforts to insure consistency and thoroughness and
generally, to facilitate the e-discovery process.
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(4) Timing of E-Discovery. Discovery of relevant electronically stored
information shall proceed in an orderly fashion.
(A) After receiving requests for document production, the parties shall
search their documents, other than those identified as electronically
stored information not reasonably accessible, and produce responsive
electronically stored information in accordance with Rule 26(b)(2)(B).
(B) Electronic searches of documents identified as electronically stored
information not reasonably accessible shall not be conducted until the
initial electronic document search has been completed. Requests for
information expected to be found in not reasonably accessible sources
must be narrowly focused, with some basis in fact supporting the
request.
(C) On-site inspections of electronic information system under Fed. R. Civ.
P. 34(b) shall not be ordered absent good cause and demonstration of
specific need.
(5) Search methodology. If the responding party intends to use an electronic
search to locate responsive electronically stored information, the parties shall
notify all other parties and disclose proposed search terms and any restrictions
as to scope and method. The parties shall confer in good faith in an attempt to
reach an agreement as to the method of searching, and the words, terms, and
phrases to be searched. The parties shall also attempt to reach an agreement as
to the timing and conditions of any additional searches that may become
necessary in the normal course of discovery.
(6) Default format of electronically stored information. If during the course of the
Rule 26(f) conference the parties cannot agree to the format for document
production, electronically stored information shall be produced to the
requesting party as image files (e.g., PDF or TIFF). If the image file is
produced, the producing party must continue to preserve the integrity of the
native file, 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 a particularized need for
production of electronically stored information in its native format.
(7) Retention. During the Rule 26(f) conference, the parties should work toward
an agreed preservation Order that outlines the steps each party shall take to
segregate and preserve the integrity of all relevant electronically stored
information. 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 relevant e-mail of identified custodians are not
permanently deleted in the ordinary course of business and that relevant
electronically stored information maintained by the individual
custodians are not altered.
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(B) Provide notice to the parties as to the criteria used for spam and/or
virus filtering of e-mail and attachments. E-mails and attachments
filtered out by such systems shall be deemed non-responsive so long
as the criteria underlying the filtering are reasonable.
(8) Privilege. Counsel shall attempt to reach an agreement on a proposed
Order regarding waiver of privilege or protection in the event privileged,
protected or otherwise confidential electronically stored information is
inadvertently disclosed. See Fed. R. Evid. 502.
(9) Costs. The shifting of discovery costs to the requesting party or the sharing
of those costs between the requesting party and responding party should be
considered when the electronically stored information is sought. If the
parties are unable to reach an agreement, the Court, on motion of one of the
parties, should consider the following factors, in descending order of
importance, in determining whether any or all discovery costs should be
borne by the requesting party: (1) the extent to which the request is
specifically tailored to discover relevant information; (2) the availability of
such information from other sources; (3) the total cost of production
compared to the amount in controversy; (4) the total cost of production
compared to the resources available to each party; (5) the relative ability of
each party to control costs and its incentive to do so; (6) the importance of
the issues at stake in the litigation; and (7) the relative benefits of obtaining
the information. See also Fed. R. Civ. P. 26(b)(2)(C).
