On August 6, the Rule 1 Task Force of the United States District Court for the District of Kansas published new, nonbinding Guidelines for Cases Involving Electronically Stored Information (ESI). The guidelines are one of the most comprehensive sets of recommendations for e-discovery in U.S. federal courts. Among the aspects they address, some of the most notable and novel include the following:
- E-discovery liaison: Parties to cases with “significant e-discovery issues” may designate an e-discovery liaison “for purposes of assisting counsel, meeting, conferring, and attending court hearings on the subject.” The liaison’s responsibilities include ensuring “consistency and thoroughness and, generally, to facilitate the e-discovery process.” The liaison can be a lawyer, third-party consultant, or a party’s employee, so long as the liaison is (1) “[f]amiliar with the party’s electronic information systems and capabilities in order to explain these systems and answer relevant questions,” (2) “[k]nowledgeable about the technical aspects of e-discovery, including the storage, organization, and format issues relating to electronically stored information,” and (3) “[p]repared to participate in e-discovery dispute resolutions.”
- Share and share alike. The guidelines mimic the controversial opinion in EORHB, Inc. v. HOA Holdings, LLC, suggesting that “[i]n appropriate cases counsel may want to attempt to agree on the construction of a shared database, accessible and searchable by both parties. In such cases, they should consider both hiring a neutral vendor and/or using one search protocol with a goal of minimizing the costs of discovery for both sides.”
- Technology-assisted review (TAR). If parties intend to use TAR, counsel “should attempt to reach agreement about the method of searching or the search protocol” and work with their e-discovery liaisons in choosing search terms. The guidelines also recommend that keywords should be “tested against a randomly selected sample of the data being searched.”
- Metadata and embedded data: Parties should not scrub metadata or embedded data “without cause or agreement of adverse parties.”
- Deduplication and De-NISTing: Parties that plan to use these data-reduction techniques must discuss their plans, such as whether deduplication will occur vertically (within each custodian’s data) or horizontally (across the entire data set).
The Task Force recognized that the “[d]iscovery of electronically stored information (ESI) is unduly expensive if it’s not managed properly.” The themes running throughout these guidelines are the keys to good e-discovery management: cooperation and knowledge. If parties—in Kansas and elsewhere—educate themselves about their client’s data and collaborate with opposing counsel before unilaterally making decisions about how to handle their data, it should pay dividends in lower e-discovery costs and fewer discovery disputes.
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