A model e-discovery order has already been entered to guide the conduct of a case under the new rules. Palgut v. City of Colorado Springs, 2006 WL 3483442 (D.Colo., November 29, 2006). Magistrate Watanabe’s order is entitled Electronic Discovery Plan and Order to Preserve Evidence. It begins with this explanation: “The purpose of this Order is to expedite discovery and reduce the costs of litigation to the parties and to the Court.”
Next the order contains a basic Definitions section, beginning with a definition of “Relevant Information”. Next the court defines “Documents”, “data,” “electronic information,” or synonyms thereof, to “mean documents or electronically stored information referred to in Fed.R.Civ.P. 34, as amended by the impending December 2006 amendments to that rule (including information stored in video and photographic devices), and the more detailed definition of same below. See Sec. VIII, infra.” Section VIII contains many more definitions, including the continuation of “Documents”: “These terms also include: All digital or analog electronic files, including “deleted” files and file fragments, stored in machine-readable format on magnetic, optical or other storage media, including the hard drives or floppy disks used by your clients’ computers and their backup media (e.g., other hard drives, backup tapes, floppies, Jaz cartridges, CD-ROMs) or otherwise, whether such files have been reduced to paper printouts or not.”
Also defined in the order are: “Application”, “Backup”, “Deleted Data”, “Electronic device”, “Hard Drive”, “Mirror Image”, “Native format”, “Network”, “Operating system (OS)” and “Software”.
The order, which appears to be largely stipulated, also sets forth Discovery Protocols for the form of electronic information production; objections to producing electronic information; and interrogatories, document requests, and requests for admissions. The order also requires the informal exchange of information between the parties’ experts, requires the parties to make a good faith attempt to enter into a cost sharing agreement, and enters an order preserving evidence as follows: “Neither party may alter, interlineate, destroy, or permit the destruction of any document, as defined herein, in its possession, custody, or control, without further order of court.”
If the city in fact stipulated to this preservation order, then, in my opinion, it probably made a mistake. The city probably had much more ESI than the plaintiff, and had very little to gain by stipulating to what amounts to an injunction to obey the law. If an error is made, and something is accidentally not preserved, then the city already stands in violation of a court order, and sanctions may be easier to obtain. When one party has a lot more data than another, they are more likely to make such a mistake. For that reason in most circumstances a large organization will want to avoid any type of preservation order.
It is an interesting and useful order, which for some reason was made nunc pro tunc back to November 21, 2006. For another more recent case along the same lines see: In re Genetically Modified Rice Litigation, 2007 WL 1655757 *4 (E.D. Mo., June 5, 2007).