Best Practices from Northern District of California Now Included in EDBP.com

I just finished studying the new ESI Guidelines, Checklist and Model Order created by a bench and bar committee of the Northern District of California. The committee’s work was led by well-known e-discovery Magistrate Judge Elizabeth D. Laporte. All of the judges in the district unanimously approved the work and adopted a standing order implementing the suggestions. This is explained further in the court’s news release. Judge Laporte is quoted as saying:

The Court requires counsel to be familiar with these tools and confirm in the initial case management statement that they have reviewed the Guidelines regarding preservation and decided whether to enter into a stipulated order governing e-discovery, in light of the Model Stipulated Order.

The Northern District of California Court has now established the following documents and orders:

• Guidelines for the Discovery of Electronically Stored Information (.pdf)
• ESI checklist for use during the Rule 26(f) meet and confer process (.pdf)
• Model Stipulated Order Re: the Discovery of Electronically Stored Information. (.doc)
• Standing Order for All Judges of the Northern District of California (.pdf)

Attorneys in the Northern District of California are now required to certify that the parties have reviewed the Guidelines Relating to the Discovery of Electronically Stored Information (“ESI Guidelines”) and also required to confirm:

[T]hat the parties have met and conferred pursuant to Fed. R. Civ. P. 26(f) regarding reasonable and proportionate steps taken to preserve evidence relevant to the issues reasonably evident in this action. See ESI Guidelines 2.01 and 2.02, and Checklist for ESI Meet and Confer.

The use of the word proportionate by local rules is new and welcomed. The court goes on to state that:

All counsel are expected to review the Guidelines. The Checklist & Model Stipulated Order themselves are highly recommended, but their use is voluntary. In addition, counsel may stipulate to or move for entry of a protective order, such as the court-approved Stipulated Protective Orders.

Although there was not much in these Guidelines and Checklist that we have not seen before, which is to be expected, they are very well-done. They add authority to a growing consensus in the courts and practitioners as to best practices for e-discovery. For that reason I have already incorporated into Electronic Discovery Best Practices many of the suggestions made by the California experts.

Specifically, quotes and citations to the Northern California Guidelines and Checklist have been added to the following areas of the EDBP web:

• the page for the second step of preservation hold notices,
• the all important fifth step of Cooperation shown enlarged above, and
  • the Cooperation sub-page dedicated to 26(f) conferences, and
  • the Cooperation sub-page dedicated to Proportionality, where I found the Northern District write-up to be particularly good,
• the seventh step of Computer Assisted Review at the sub-page on Quality Controls, and
• the ninth step on Productions.

Conclusion

My congratulations to Judge Elizabeth Laporte and the entire Committee of California judges and attorneys who prepared the ESI Guidelines, Checklist and Model Order. The rest of the committee consists of:

• Magistrate Judge Donna M. Ryu
• Kathryn Dickson, partner, Dickson Geesman
• Stephanie Mendelsohn, Director of Corporate Records & E-Discovery, Genentech Corp.  (shown right)
• Ed Reines, Partner, Weil Gotshal & Manges
• Joseph Saveri, partner, Saveri Law Firm
• Neill Tseng, Assistant United States Attorney & Electronic Discovery Office Coordinator

The work of the committee should serve as a model for bench and bar committees throughout the country who may be considering the creation of similar guidance and local rules for their court. Moreover, they provide additional support to the articulation of national best practices that attorneys everywhere should strive to emulate. It is towards that end that EDBP.com is dedicated.