Electronic discovery guidelines
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Electronic Discovery Guidelines

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Electronic discovery guidelines

Meet and Confer - General definition.a requirement of courts that before certain types of motions and/or petitions will be heard by the judge, the lawyers (and sometimes their clients) must "meet and confer" to try to resolve the matter or at least determine the points of conflict. This has the beneficial effect of resolving many matters, reducing the time for arguments and making the lawyers and clients face up to the realities of their positions.

Electronic Discovery Guidelines


Existence of electronic information

Prior to the Fed. R. Civ. P. 26(f) conference, Counsel should become knowledgeable about their clients’ information management systems and their operation, including how information is stored and received. In addition, counsel should make a reasonable attempt to review their client’s electronic information files to ascertain their contents, including archival, backup, and legacy data (outdated formats or media)

Existence of Electronic Information


Duty to disclose

Counsel shall review with their clients the clients electronic information files, including current files as well as back-up, archival, and legacy computer files, to determine what information may used to support claims or defenses. If disclosures of electronic information are being made, counsel shall also identify those individuals with knowledge of their clients electronic information systems who can facilitate the location and identification of discoverable electronic information

Duty to disclose


Duty to notify

A party seeking discovery of computer-based information shall notify the opposing party of that fact immediately, and, if known at the time of the Fed.R. Civ. P. 26(f) conference, shall identify as clearly as possible the categories of information that may be sought.

Duty to notify


Duty to meet and confer regarding electronic information

During the Fed.R. Civ. P. 26(f) conference the parties shall confer regarding the following matters:

Counsel shall attempt to agree on steps the parties will take to segregate and preserve computer based information in order to avoid accusations of spoliation. Counsel shall also attempt to agree on the steps the parties will take to comply with the decisions and rules requiring the preservation of potentially relevant information after litigation has commenced.

Duty to meet and confer regarding electronic information


Duty to meet and confer regarding electronic information1

2. Email. Counsel shall attempt to agree on the scope of email discovery and email search protocol

3. Deleted information. Counsel shall attempt to agree on whether deleted information still exists, the extent to which restoration of deleted information is needed, and who will bear the costs of restoration.

Duty to meet and confer regarding electronic information


Duty to meet and confer regarding electronic information2

4. Back-up and archival data. Counsel shall attempt to agree on whether back up and archival data exists, the extent to which it is needed and who will bear the cost of obtaining such data.

5. Costs. Counsel shall discuss the anticipated scope, cost and time required for disclosure or production of data beyond what is reasonably available to the parties in the ordinary course of business, and shall attempt to agree on the allocation of cost

Duty to meet and confer regarding electronic information


Duty to meet and confer regarding electronic information3

6. Format and media. Counsel shall discuss and attempt to agree on the format and media to be used in the production of electronic material.

7. Privileged material. Counsel shall attempt to reach an agreement regarding what will happen in the event privileged material or information is inadvertently disclosed

Sources: USCourts.gov

Texas and Kansas

Duty to meet and confer regarding electronic information


Metadata

All the contextual, processing, and use information needed to identify and certify the scope, authenticity, and integrity of active or archival electronic information.

Examples of metadata; a file’s name, location(filepath) filetype, file size, creation date, date of last modification…other examples; track changes in MS word and blind copies in email; and formulas and hidden columns in MS Excel

Metadata


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