Proportionality Analysis Defeats Motion for Forensic Examination

May 28, 2018

It is rare of a judge to change their mind after making a decision. It is rarer still for a judge to celebrate doing so in a written opinion for the world to see. But that is exactly what Magistrate Judge Jeffrey Cole has done in his opinion dated May 17, 2018 in Motorola Sols., Inc v. Hytera Communications Corp., No. 17 C 1973 (N.D. Ill.).

This celebration is one reason that Judge Cole’s Order denying Motorola’s motion for forensic inspection is so remarkable. Another is that it begins with a quote, a rare occurrence in judicial orders, one that I always like. The quote celebrates the better late than never philosophy of changing your mind to follow a new understanding, a personal wisdom. The quote is by the late, great Supreme Court Justice, Felix Frankfurter. Felix served as a judge on the Supreme Court from 1939 to 1962.  Before that he was, among other things, a Harvard Law Professor and co-founder of the American Civil Liberties Union. Here is the quote with which Cole begins his order:

“Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”

Henslee v. Union Planters Nat. Bank & Trust Co., 335 U.S. 595, 600, 69 S. Ct. 290, 93 L. Ed. 259, 1949-1 C.B. 223 (1949)

(Frankfurter, J., dissenting)

Another unusual thing about Judge Cole’s order, and the real reason I am writing about it, is that the wisdom that came to him was from the doctrine of proportionality and Rule 26(b)(1). This was the basis for Judge Cole to deny plaintiff’s motion for a forensic inspection of defendant’s computers, in China no less.

District Court Judge Ronald Norgle had previously allowed the parties until October 6, 2017, to conduct discovery on the statute of limitations defense only and stayed all other discovery. The parties had one month in which to take discovery on a very limited topic of fraudulent concealment, which is a type of tolling within the doctrine of equitable estoppel of the limitations defense. Nothing else. After all, Motorola has waited almost ten years before filing a trade-secret theft suit against a Chinese corporation for allegedly stealing its radio wave technology. As Judge Cole colorfully described the situation (citations to record removed in all quotes) with a reference to Hannibal:

While the inquiry should have been uncomplicated, it has become a long, drawn out, pitched battle — one, in a rhetorical sense, to rival the Punic Wars — albeit without the elephants and the Alps and the sheer drama.

After that, the parties exchanged motions to compel repeatedly. Deadlines were extended, from one month to several. Thousands of pages of memoranda and exhibits were filed. 1  And, again, this was all over the supposedly limited discovery on a limited topic that ought to have taken little time and effort. The very nature of what occurred tends to sustain the all too prevalent observation that discovery has become more important than the actual case. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 595, n.13, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007); A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1013 (4th Cir. 1986).

1 The filings and orders in this case which, again, is only in the preliminary stage of determining whether Motorola’s filing is timely, already cover more than 7,500 pages. See also n. 5, infra.

Five months into this “limited” discovery process Motorola asked to conduct a forensic examination of the computers of “key Hytera witnesses who have been involved in the use of Motorola’s confidential information and any relevant Hytera servers … on which Hytera has stored Motorola documents,” all of which are located in China. Motorola said it wanted to “begin with forensic inspection of the computers” of seven Hytera employees. Judge Cole said this request reminded him of Winston Churchill’s famous quip: “Now this is not the end. It is not even the beginning of the end.”

Flip Flopping Towards Wisdom

After several hearings Judge Cole was persuaded by the siren songs of plaintiff’s counsel from the well-known firm of Kirkland & Ellis LLP. They must have been very good orators and put on a compelling argument to support their motion. They convinced Judge Cole to allow them to begin a forensic examination process in China under elaborate Hague Convention procedures. Only after the hearings and oral decision to compel the inspection did Judge Cole realize the error of that decision. Judge Cole to his credit does not blame Kirkland and Ellis litigators for leading him astray. Following standard judicial protocol Judge Cole assumed full responsibility for the initial error:

Over the course of two lengthy hearings on March 21 and April 4, 2018, I tentatively concluded that forensic examination of Hytera’s computers would be appropriate, but only if the parties could arrive at a suitable protocol that would not, among other things, run afoul of Chinese law. As we discuss, infra at 5, that was a mistake. But the law frowns on relying on a blunder to gain an opportunistic advantage. Cf. Architectural Metal Systems, Inc. v. Consolidated Systems, Inc., 58 F.3d 1227, 1231 (7th Cir.1995); Market Street Associates; Packer Trading Co. v. CFTC, 972 F.2d 144, 150 (7th Cir 1992); Centex Construction v. James, 374 F.2d 921, 923 (8th Cir.1967). 2

2 We should not be understood as ascribing fault to plaintiff’s counsel. After all, in our adversary system, lawyers properly play a partisan role. Masias v. Secretary of Health and Human Svcs, 2009 U.S. Claims LEXIS 281, at *27 (Fed. Cl. 2009); Philips Medical Systems Intern. B.V. v. Bruetman, 8 F.3d 600, 606 (7th Cir.1993) (Posner, J.). See also Smith v. Robbins, 528 U.S. 259, 293, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000) (Souter, J., dissenting) (“a partisan scrutiny of the record and assessment of potential issues, goes to the irreducible core of the lawyer’s obligation to a litigant in an adversary system … .”). Mistakes are ultimately (and in most cases) the responsibility of the court.

Judge Cole went on to celebrate a jurists right to change their mind in order to get things right.

The scope of discovery that I was initially inclined to allow was, in the context of the present inquiry that had been narrowed by the district court to the limitations issue, overbroad. What is being sought goes beyond the issue of equitable tolling. In the end, Motorola’s counsel and I were talking about relevance to allegations in Motorola’s complaint. And so, well beyond the statute of limitations, by the end of the April 4 hearing, discovery was encompassing documents related to Motorola’s entire case.

As we have said, “all judges make mistakes,” Fujisawa Pharm. Co., 115 F.3d at 1339, and, when possible, it is best that judges put them right.

Proportionality Applied to Restrain Discovery

In the May 17, 2018 order Judge Cole found the wisdom to say no and forbid the forensic examination of the computers in China. He did so because he found that this discovery was “out of proportion with the needs of this case, as presently limited by the district court” and cited Rule 26 (b)(1), Federal Rules of Civil Procedure. Although I am sure that he heard extensive argument and evidence concerning the estimated costs and burdens imposed by the forensic exams, his decision did not focus on costs. Instead it focused on one of the other very important factors in 26(b)(1), “the importance of the discovery in resolving the issues.” Judge Cole realized that the computers in China could not possibly have information in them of any real relevance to equitable tolling of the statute of limitations defense.

At a minimum, even if relevant to the present limited issue, discovery of computers in China is not proportional to the importance of discovery in resolving the issues and the burden and expense of the proposed discovery manifestly outweighs its likely benefit to the very limited question of equitable tolling. Although the federal discovery rules are permissive, they are not, as Judge Moran wisely put it, “a ticket to an unlimited … exploration of every conceivable matter that captures an attorney’s interest.” Sapia v. Bd. of Educ. of the City of Chi., 2017 U.S. Dist. LEXIS 73153, 2017 WL 2060344, at *2 (N.D. Ill. 2017); see also Leibovitch v. Islamic Republic of Iran, 2018 U.S. Dist. LEXIS 31713, 2018 WL 1072567, at *11 (N.D. Ill. 2018). “[J]udges should not hesitate to exercise appropriate control over the discovery process.” Herbert v. Lando, 441 U.S. 153, 177, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979). Failure to exercise that control results in needless and enormous costs to the litigants and to the due administration of justice.

Judge Cole also understood that a forensic inspection is a drastic remedy that requires good cause not shown by plaintiff here:

The original idea here was for a month or so of discovery focused on the very limited issue of the statute of limitations. While it is rare for parties to complete discovery even by dates chosen by their counsel, there can be no dispute that things have already gone far beyond what was intended and what was necessary in the statute of limitations portion of this case, in terms of time and scope. Now, Motorola wants things to go very much further. Forensic examination is generally regarded as a drastic step even in general discovery. See, e.g.,John B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008) (“mere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures.”). As the court said in In re Ford Motor Company, 345 F.3d 1315 (11th Cir. 2003):

““In the absence of a strong showing that the responding party has somehow defaulted in this obligation, the court should not resort to extreme, expensive, or extraordinary means to guarantee compliance. Forensic inspection of computer hard drives is an expensive process, and adds to the burden of litigation for both parties, as an examination of a hard drive by an expert automatically triggers the retention of an expert by the responding party for the same purpose. Furthermore, examination of a hard drive inevitably results in the production of massive amounts of irrelevant, and perhaps privileged, information … . This court is therefore loathe to sanction intrusive examination of an opponent’s computer as a matter of course, or on the mere suspicion that the opponent may be withholding discoverable information.”

The Advisory Committee Notes to Rule 34 recognize that courts must use caution in evaluating requests to inspect an opposing party’s electronic devices or systems for ESI, in order to avoid unduly impinging on a party’s privacy interests:

Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.

Fed. R. Civ. P. 34, Advisory Committee Notes—2006 Amendment (emphasis added). Likewise, the Sedona Principles urge general caution in this area:

Civil litigation should not be approached as if information systems were crime scenes that justify forensic investigation at every opportunity to identify and preserve every detail … . [M]aking forensic image backups of computers is only the first step of an expensive, complex, and difficult process of data analysis that can divert litigation into side issues and satellite disputes involving the interpretation of potentially ambiguous forensic evidence.

The Sedona Principles, supra, at 34, 47. 4


Judge Cole’s wrap up is wise and witty and something you may want to quote in many discovery disputes, especially the footnote:

Parties are entitled to a reasonable opportunity to investigate the relevant facts — and no more. Upjohn Company v. United States, 449 U.S. 383, 390, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981); Vakharia v. Swedish Covenant Hosp., 1994 U.S. Dist. LEXIS 2712, at *2 (N.D. Ill. 1994) (Moran, J.). Motorola has already had that reasonable opportunity and far more. What was intended to be a month-long process of discovery on a very limited issue has turned into a protracted affair in which Motorola has received 700,000 documents — nearly 3 million pages — over a period of eight months. 5

5 A ream of paper is 500 sheets, which is 2 inches tall. Three million pages is 6,000 reams, meaning that 3 million pages of discovery, which is about 1,000 feet high or 100 stories high. By any measure, that is extraordinary.

Yet, apparently for Motorola, it’s not enough. It now wants a forensic inspection of several computers in China — and it warns that that is only the “beginning.” What should have been limited discovery on a “straightforward [issue has] spiral[ed] out of control.” Montanez v. Simon, 755 F.3d 547, 552 (7th Cir. 2014). The time has come to say: “enough is enough.” Walker v. Sheahan, 526 F.3d 973, 981 (7th Cir. 2008). Eight months of “limited,” single-issue discovery are now at an end. Motorola’s motion for forensic inspection is denied.

Enough is enough. To go further would have been a disproportionate burden, especially considering the very narrow issue allowed in discovery. Judge Cole at first made a mistake, and then he changed his mind and made it right. He is a wise judge. I wish there were more like him. Except of course if you change your mind to rule against me! <‘_’>

Good New 33-Point e-Discovery Checklist From Miami

October 1, 2017

The United States District Court for the Southern District Court of Florida is now revising it’s Local Rule 16.1 on Pretrial Procedure in Civil Actions. (In the interests of full disclosure, I am a member of that Court, but am not on the Committee that prepared the proposed revisions.) The revisions pertain to Rule 16.1(b),  Scheduling Conference and Order. The amendments will go into effect on December 1, 2017. These amendments include an excellent new 33-point e-discovery checklist.

The main revision in the local rules is the addition of a new subsection (K) under 16.1(b)(2) Conference Report that lists what must be included in the attorneys’ report:

(K) any issues about: (i) disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced; (ii) claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert those claims after production — whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502: and (iii) when the parties have agreed to use the ESI Checklist available on the Court’s website (, matters enumerated on the ESI Checklist;

This rule revision and checklist are a fine addition to the local rules. My congratulations to the ad hoc committee that prepared them. My only criticism of the rule change is that it does not go far enough on Federal Rule of Evidence 502. A 502(d) order should be entered in every case where there is a production of ESI. It should be a standing order and follow the standard language used by Judge Andrew Peck and many others, including my law firm:

1. The production of privileged or work-product protected documents, electronically stored information (“ESI”) or information, whether inadvertent or otherwise, is not a waiver of the privilege or protection from discovery in this case or in any other federal or state proceeding. This Order shall be interpreted to provide the maximum protection allowed by Federal Rule of Evidence 502(d).
2. Nothing contained herein is intended to or shall serve to limit a party’s right to conduct a review of documents, ESI or information (including metadata) for relevance, responsiveness and/or segregation of privileged and/or protected information before production.

My only criticism of the ESI Checklist itself in their use of vague bullet-points, instead of numbering. With that one exception, other courts around the country should consider using the 33-point ESI Checklist for their own local rules. Many already have their own similar checklists, of course, but this is the latest and one of the best. It is complete, but not overly long and complicated.

Checklist Use Is Discretionary

The first thing to note about this new local rule 16.1(b)(2)(K) is that it does not require attorneys to use or follow the ESI Checklist in their discovery plan discussions. Perhaps future versions of the rule will require its use, but I agree with the Ad Hoc Committee’s thinking here to start with discretionary use. There are still plenty of Milton-type lawyers in Florida, and elsewhere, who only think of discovery as near-endless mind-numbing exercises of looking at boxes of paper. IMO there are way too many of these guys, young and old, but the clients who retain attorneys seem to love them, so what can you do? They do often seem to win at the end, as all Office Space fans know. I knew a multi-zillionairre attorney in Miami once where you had to clear a path through all of the paper in his office just to walk to his desk.

If, however, the parties are cool and do agree to use the ESI Checklist, then they are required by the new local rule to include the Checklist points in their Conference Report. It is unclear whether they must include all 33-items in their Report, which, by the way, is supposed to be a Joint Report, but I predict that most will. The Checklist does, however, include the introductory sentence that justifies partial use: “The usefulness of any particular topic may depend on the nature and complexity of the matter.

I also predict that some judges will strongly encourage the use of the Checklist, the way that only judges can do. It may even become an Order when the failure to do so causes time-consuming disputes and other issues that could have been avoided by timely discussion of the checklist points. In most complex cases especially, attorneys would be well advised to agree to this list and not hide their head in the sands of wishful thinking. Better to be realistic and spend the time necessary for the proper use of the ESI List. The List is an excellent way to timely and efficiently comply with the rules.

Preparing for 26(f) conferences and talking about all of the items on the list may increase the costs somewhat upfront, but this expense will almost certainly cause substantial cost-savings dividends down the road. Attorneys and their clients should not be penny wise and pound foolish. You can have your cake and eat it too. Case preparation does not drive up the costs of litigation. It allows you to win, even in the close cases, or at least to mitigate damages. The failure to prepare is not only a sure way to lose, but also to generate high fees from motion practice over discovery. Better to avoid and contain the disputes than to hope they will never happen. Hoping for the best, including incompetence by opposing counsel, is not what lawyers are paid to do.

ESI Checklist

This blog next will explore and make some comments on the 33-point checklist. I begin by reproduction below of the checklist itself in somewhat altered form. I have not revised any of the words in the checklist, but I have added numbers not found in the original to facilitate discussion (actually Roman Numeral letters). So it is fair to say my revisions are not of actual content, but of metadata only. I also add after each item a personal comment, put in parenthesis, italicized and in blue font, so as to be very clear on what is Losey and what is not.

If you want to see the original, bullet points and all,  the PDF version of the Checklist and Rules are published on the Court’s web. Go to the end of the document (currently pages 78-79) to find the ESI Checklist.

United States District Court
Southern District of Florida

Checklist for Rule 26(f) Conference
Regarding Electronically Stored Information (“ESI”)
(Original Bullet Points Changed to Letters and Losey Comments put in parenthesis after each list item, are shown in italics and blue font)

In connection with the Federal Rule of Civil Procedure 26(f) conference and in preparing the Local Rule 16.1(b)(2) conference report, the Court encourages the use of the following checklist. The usefulness of any particular topic may depend on the nature and complexity of the matter.

I. Preservation

A. The ranges of creation or receipt dates for any ESI to be preserved. (In almost every case there is a date before which the ESI is not relevant. In many there is also an after date. Disagreement between parties on date range should be resolved by phased discovery and reservation of rights to object after first phase is completed.)

B. The description of ESI from sources that are not reasonably accessible because of undue burden or cost and that will not be reviewed for responsiveness or produced, but that will be preserved in accordance with Federal Rule of Civil Procedure 26(b)(2)(B). (Backup ESI is  almost always so protected, unless it has the only copy of important information.)

C. The description of ESI from sources that: (a) the party believes could contain relevant information; but (b) has determined, under the proportionality factors, is not discoverable and should not be preserved. (The keyword here is “could.” Maybe it has relevant information, maybe it does not. Also important in determining discoverability under governing proportionaity rules is the “importance” of the information to material issues of fact in dispute. You must consider probative value. In my experience with big data most “merely relevant” information is a waste of time. There is too little probative value to most of it to even try to capture it all.)

D. Whether to continue any interdiction of any document-destruction program, such as ongoing erasures of e-mails, voicemails, and other electronically recorded material. (Typically the key custodians identified should have their email auto-delete functions turned off, and voice mail, but as to them only, not the whole enterprise. Plus, I cannot recall voice mail ever making a difference in a case. It typically has low probative value.)

E. The number and names or general job titles or descriptions of custodians for whom ESI will be preserved (e.g., “HR head,” “scientist,” “marketing manager”). (This is the broad list of key custodians. They are often divided in classes by probable importance of their ESI to the outcome of the case. Although all classes may be preserved, only the most important are actually reviewed, at least at first.)

F. The list of systems, if any, that contain ESI not associated with individual custodians and that will be preserved, such as enterprise databases. (A list not associated with custodians usually refers to department type servers where a number of people in the department could store documents, to document management systems, or to general databases, such as payroll.)

G. Any disputes related to scope or manner of preservation. (You should get these issues resolved asap. Typically you would want to preserve until the issue is resolved, unless the expense is too great or the other side’s position is too unreasonable. But even then you run some risk, and so quick adjudication on issues like this are important.)

II. Liaison

A. The identity of each party’s e-discovery liaison, who will be knowledgeable about and responsible for each party’s ESI. (I always like to see the role and name that I invented back in 2006 – “e-discovery liaison” – used by a court. One of my first e-Discovery “Liaisons” is now a U.S. Magistrate Judge in the Southern District, and a very good one at that, especially in e-discovery.)

III. Informal Discovery About Location and Types of Systems

A. Identification of systems from which discovery will be prioritized (e.g., e-mail, finance, HR systems). (Typically the communications between people, the contemporaneous writings, are the ESI with the highest probative value.)

B.  Descriptions and location of systems in which potentially discoverable information is stored. (Typically this means a description of all IT systems where relevant ESI might be stored, and not just the high value targets like communications. Document management systems and network drives might also be listed here.)

C.  How potentially discoverable information is stored. (This is a follow-up on the prior checklist item that describes how the ESI is stored. Usually it is stored manually at the discretion of listed custodians. They either save the documents or email or not. Where they save it may also be within their control. They may save it on personal thumb drives, or they may print it out to store. You have to interview the custodians to find out how they stored it. Sometimes the potentially discoverable information is stored automatically by other software systems, such as payroll systems, and sometimes the location is predetermined.)

D.  How discoverable information can be collected from systems and media in which it is stored. (Usually it is collected by copying. That needs to be done carefully so that metadata is not changed. Not hard to do, but IT expertise is usually required to do it correctly. Forensic collection is usually not necessary, especially collection of double-deleted files and unallocated space, as such ESI is usually protected under 26(b)(2)(B).)

IV. Proportionality and Costs

A.  The amount and nature of the claims being made by either party. (The monetary value should not be exaggerated by plaintiffs, but usually they feel the need to do so for posturing purposes and other reasons. Suggest this impediment be avoided by disclaimers and reservation of rights. Beyond amount issues, the “nature” of the claims should be carefully understood and discussed with an aim to identifying the actual disputed facts. Discovery should always be focused and have evidentiary value. It is never an end in itself, or at least should not be. Also, do not forget that subject matter discovery is no longer permitted under revised Rule 26(b)(1). It is now limited to claims and defenses that have actually been raised in the case.)

B.  The nature and scope of burdens associated with the proposed preservation and discovery of ESI. (Try to include actual monetary burden expected, usually with a range, but restrain the urge to exaggerate. Spend time to do this right and get into some detailed metrics. Consult an expert where necessary, but never b.s. the judge. They do not like that and will remember you.)

C.  The likely benefit of the proposed discovery. (The requesting party should spell it out. Fishing expeditions are not permitted. The old “reasonably calculated” jargon is gone from new Rule 26(b)(1), at least as a definition of scope, and that change voids a lot of case-law on the subject.)

D.  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. (In my experience this is very rare, Typically it only makes sense in very big cases and or between co-defendants or co-plaintiffs. There are usually too many confidentiality issues to share a vendor with opposing parties.)

E.  Limits on the scope of preservation or other cost-saving measures. (Cost savings should always be considered. This is required of all parties, attorneys and judges under the 2015 revision to Rule 1, FRCP. So too is “speedy” and “just.”)

F.  Whether there is relevant ESI that will not be preserved in accordance with Federal Rule of Civil Procedure 26(b)(1), requiring discovery to be proportionate to the needs of the case. (Typically the answer here is yes, or should be, and some discussion may be required. Preservation is required by law to be reasonable, not exhaustive or perfect. Reasonable means proportionate. Moreover, if ESI is not relevant under the proportionate definitions of revised Rule 26(b)(1) then it does not have to be preserved because only relevant ESI need be preserved.)

V. Search

A.  The search method(s), including specific words or phrases or other methodology, that will be used to identify discoverable ESI and filter out ESI that is not subject to discovery. (Please people, exchanging keywords should be just the beginning, not the whole process. It is only one of many possible search methods. Use the Hybrid Multimodal method, which all readers of my blog and books should know pretty well by now.)

B.  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. (The problem of missing relevant ESI is the problem of Recall, whereas the problem of too much irrelevant ESI is the problem of Precision, but also, to some extent, to the problem of duplication. All good electronic document review experts have a number of different quality control techniques to improve recall and precision. Not an expert? Then perhaps you should consult with one in your firm, or if you have none (pity), then ask your e-discovery vendor.)

VI. Phasing

A.  Whether it is appropriate to conduct discovery of ESI in phases. (Yes. It is a great way to resolve disagreements by postponing excessive demands for second or third phases. Chances are these other phases will not be necessary because all that is needed is produced in the first phase. Alternatively, the producing party might agree to them if the first production makes their necessity obvious.)

B.  Sources of ESI most likely to contain discoverable information and that will be included in the first phases of Federal Rule of Civil Procedure 34 document discovery. (Here is where the producing party lists what sources they will search, most often communication ESI such as Outlook Exchange email servers.)

C.  Sources of ESI less likely to contain discoverable information from which discovery will be postponed or not reviewed. (These are sources that are unlikely to have ESI with strong probative value, if any, but might. There may never be a need to review these sources. As a compromise where there is disagreement put these sources in a later phase. After the first phase is completed  it may not be necessary to look for more evidence in these secondary sources.)

D.  Custodians (by name or role) most likely to have discoverable information and whose ESI will be included in the first phases of document discovery. (Here is where you list the key custodians. In most lawsuits all you will ever need to search is the contents of the mailboxes of these key witnesses, the emails, attachments, calendar items, etc in their email system.)

E.  Custodians (by name or role) less likely to have discoverable information from whom discovery of ESI will be postponed or avoided. (These are secondary custodians that might possibly have important information, but it is less likely. Typically, if you cannot revolve disagreements on importance, you agree to postpone the disputed custodians to second phases.)

F.  The time period during which discoverable information was most likely to have been created or received. (Again, limit the review by timing and if you cannot agree, then postpone disputed additional times for second phases.)

VII. Production

A.  The formats in which structured ESI (database, collaboration sites, etc.) will be produced. (Typically database production is done by spreadsheet reports, or sometimes native. The person in charge of the structured ESI should know.)

B.  The formats in which unstructured ESI (e-mail, presentations, word processing, etc.) will be produced. (Producing parties should follow the requesting parties format request most of the time, except if they ask for paper production. Paper production is ridiculous and expensive for ESI. Otherwise format should not matter. It is, or should be, a non-issue.)

C.  The extent, if any, to which metadata will be produced and the fields of metadata to be produced. (A non-issue too. If metadata is part of the document, then produce it. Your vendor can give you a standard list.)

D.  The production format(s) that ensure(s) that any inherent searchability of ESI is not degraded when produced. (This is a must. In my court it can be sanctionable to change an electronic document so that it is no longer searchable.)

VIII. Privilege

A.  How any production of privileged or work-product protected information will be handled. (Of course you do not produce it, but you log it.)

B.  Whether the parties can agree on alternative ways to identify documents withheld on the grounds of privilege or work product to reduce the burdens of such identification. (Look for ways to streamline your privilege log. For instance, under other Southern District local rule you never have to log communications made after suit was filed.)

C.  Whether the parties will enter into a Federal Rule of Evidence 502(d) stipulation and order that addresses inadvertent or agreed production. (You should always have a 502(d) Order whenever you are making an electronic production. Mistakes happen and this is the closest thing we have in the law to a fail-safe. There is no valid reason to oppose this order. Clear enough for you?)





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