Specifically Designated Above.
To properly file a civil action other than those described above, pro se prisoners
must use the Court-approved form titled “Pro Se Prisoner Civil Complaint” and must
answer every question and complete the form in its entirety.
The Local Rules of the United States Bankruptcy Court
for the Northern District of West Virginia are available at
http://www.wvnb.uscourts.gov
Appendix L.R. Civ. P. 26.06A – CHECKLIST
United States District Court
for the Northern District of West Virginia
CHECKLIST FOR RULE 26(f) MEETING
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 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
topic 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, and the applicable orders of the 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 reasonable 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 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 lists of systems, if any, that contain ESI not associated with individual
custodians and that will be preserved, such as enterprises 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).
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 reservation
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 discovery ESI and filter our 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 (byname or role) most likely to have discoverable information
and whole ESI will be included in the first phases of document discovery.
Custodians (byname 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.
The issues that are relevant to pay 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
materials 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 Maters 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?
X. Expedited or Limited Discovery
Are the parties willing to engage in limited discovery or an expedited
discovery schedule?
Appendix L.R. Civ. P. 26.06B – GUIDELINES
United States District Court
for the Northern District of West Virginia
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. 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
LRCivP 26.06.
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 is 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)(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
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
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.
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) Meeting Regarding Electronically Stored
Information set forth in Appendix L.R. Civ. P. 26.06A-CHECKLIST to the
Local Rules. At the discretion of the court, or at the request of a party or the
parties, a court order concerning preservation may be submitted for court
approval providing a framework for applicable provisions.
Guideline 2.02 (Rule 26(f) Initial Planning Meeting)
At the required Rule 26(f) Initial Planning Meeting, when a case involves electronic
discovery, the topics that the parties should consider discussing include:
a) Preservation;
b) Systems that contain discoverable ESI;
c) Search and production;
d) Phase of discovery;
e) Protective orders (including application of Fed. R. Evid. 502); and
f) Opportunities to reduce costs and increase efficiency.
In order to be meaningful, the meeting 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. Some or all of the details set forth in L. R. Civ. P. 26.06 and the Checklist for
Rule 26(f) Meeting Regarding Electronically Stored Information set forth in Appendix
L.R.Civ. P. 26.06A-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
expenses.
court encourages the parties to address any agreements or disagreements related to
the above matters in the Rule 26(f) Meeting Report. 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 LRCivP26.06C-MODEL ORDER to the Local Rules.
Guideline 2.03 (Information 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 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 the court at the earliest possible opportunity, such as at the initial Scheduling
Conference. The court may require additional 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 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 Federal Rules of
Evidence 502 (including applicable Advisory Committee Reports); and
b) L. R. Civ. P. 26.06, these Guidelines and the court’s Checklist for Rule
26(f) Meeting Regarding ESI set forth in Appendix L.R.Civ.P. 26.06A-
CHECKLIST and Stipulated E-Discovery Order for Standard Litigation set
forth in Appendix L.R.Civ.P. 26.06C-MODEL ORDER to the Local Rules.
Appendix L.R. Civ. P. 26.06C – MODEL ORDER
United States District Court
Northern District of West Virginia
Plaintiff(s),
v. Case No.
MODEL STIPULATED ORDER RE:
DISCOVERY OF ELECTRONICALLY
Defendant(s). STORED INFORMATION FOR
STANDARD LITIGATION
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 Procedures, 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 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, texts, 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 preserved 1;
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];
The parties may estimate or agree to the volume of data to be produced (i.e. number of documents, files or GB of
data).
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: [e.g. 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.
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
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 an agreement on metadata fields to
particular ESI warrants a different format, the parties will cooperate to arrange for
the mutually acceptable production of such ESI. 4
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
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 (PI 00001) and load files.
A phased or iterative approach may be used to conduct ESI (e.g. by issue, timeframe, custodians, databases,
issue, liability, or damages).
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]. 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.
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.
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(s)
Dated: _______________________________
Counsel for Defendant(s)
IT IS SO ORDERED that the foregoing Agreement is approved.
Dated: _______________________________
United States District/Magistrate Judge
This paragraph 8 can be modified to limit or entirely eliminate the situations in which a producing party (or non-
party) can 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.
Evid. 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).
