The Discovery Plan must address the litigants’ â€œviews and proposals on . . . any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.â€ Fed. R. Civ. P. 26(2)(3)(C). Fed. R. Civ. P. 16(b) allows the courtsâ€™ scheduling order to â€œprovide for disclosure or discovery of electronically stored informationâ€ and to â€œinclude any agreements the parties reach for asserting claims of privilege . . . after information is produced.â€ Attached as Attachment D is a Joint Electronic Discovery Protocol based off of a fairly recent case in the United States District Court for the Southern District of Iowa. This is a separate document intended to outline in greater detail exactly how the parties would handle e-discovery in that case. Keep in mind that this protocol was developed in a case that involved two IT firms with forensic issues on both sides of the dispute and should not be used in most cases without significant changes.
Next, you have to decide what this information means for your case. As an example, some specialized industries will have many of their relevant documents in a form that either cannot be printed out on paper or is in a format that can only be read by someone having the same version of proprietary software costing tens of thousands of dollars. Having this information beforehand will help you know not to promise in writing to produce information in a “readable” format that will be impossible to produce.
Talking to opposing counsel.
Before meeting with opposing counsel, counsel needs to have a good understanding of the client’s computer system and how it might affect discovery. Any information available regarding the opposing side’s computer system can be important information as well. You will need to either retain expert assistance in gathering necessary information or find someone working for the client with the necessary knowledge. The main items to discuss include the type of computer system used by the client, the e-mail system that is used, the backup systems, and how the client stores documents. The main goal in the early meetings with the client should be to make sure that both you and the client have a good understanding as to where relevant information may be found and how hard it will be to extract that information.
Confer with the Experts.
Some cases and computer systems may be sufficiently complex that litigation support experts for both parties (experienced paralegals or outside vendors) need to meet before discovery actually begins. It does not take much complexity for this to be a necessary component of a good discovery protocol. Since they can “speak the same language,” a lot of confusion can be avoided if the attorney allows them to discuss possible solutions. This process should take place as soon as possible. If the case is likely to involve questions regarding forensic analysis that the consultant or expert cannot be an employee of the law firm as they will need to testify at trial to authenticate the results of their findings.
— James Pray