Continuing a recent trend that has brought e-discovery to the forefront of legal commentary, the Federal District Court for the District of Delaware on December 8 followed the Federal Circuit’s lead when it updated its model discovery guidelines with the goal of driving proportionality and reasonableness in the e-discovery process.
Recognizing the merits of the Federal Circuit’s Model Order — about which I have previously blogged here and here — Delaware’s Default Standard for Discovery, Including Discovery of Electronically Stored Information may prove to be an even more effective tool in encouraging parties to cooperatively resolve disputes.
As its name suggests, the standards are built upon the critical presumptions that “parties are expected to reach agreements cooperatively on how to conduct discovery” and that “parties are expected to use reasonable, good faith and proportional efforts to preserve, identify and produce relevant information.” As such, the Default Standards will only apply when the parties fail in these efforts, leaving them “unable to agree on the parameters and timing” — recognizing that even the Default Standards can be displaced by a further order of the court or subsequent agreement of the parties.
While fairly simple in practice, the Default Standards ultimately may mark a fundamental shift in how parties address their Rule 26 “meet-and-confer” obligations. The 2006 FRCP Amendments implicitly presumed that parties would approach the meet-and-confer process in a cooperative and reasonable manner. To that end, here at DiscoverReady, we’ve spent the last five years advocating the benefits of reasonable, appropriate discovery limitations. But far too often we’ve seen discovery negotiations devolve to a point where each party tries to inflict maximum cost and burden on the opposing party.
The Default Standards seek to remedy this problem by providing an immediate, well-defined consequence if parties fail to meet their meet-and-confer obligations. Specifically, in the absence of an agreement between the parties, the Default Standards will:
- Establish the parameters of parties’ duty to preserve discoverable information and define the categories of ESI that need not be preserved
- Require parties to define the scope of their privilege logging obligations and reaching an non-waiver order pursuant to FRCP Rule 502 (recognizing that until such order is entered, privileged information will be immediately returned if it appears to have been inadvertently produced or notice is provided within 30 days of the production)
- Require that the parties identify 10 custodians most likely to have discoverable information (at least implicitly suggesting that email review and production will be limited to these custodians)
- Require that the parties exchange a list of non-custodial data sources likely to contain non-duplicative information
- Require that producing parties disclose any search terms used to identify potentially responsive data while limiting the requesting party to no more than 10 additional search terms absent a showing of good cause
- Establish a standard PDF or TIFF production format, while allowing only files that are not easily converted to image format (such as Excel) to be produced natively and
- Establish the metadata fields the parties are obligated to provide.
While the Default Standards also adopt provisions for patent cases that provide a timeline for infringement and invalidity disclosures (bringing Delaware in line with other jurisdictions utilizing local patent rules) and default source code standards, the limitations above likely will have the greatest impact on the manner in which litigants — as well as courts in other jurisdictions — approach discovery.
Other courts are going to be watching the District of Delaware very closely to see if the Default Standards work. If they do — and they should, since parties will have a clear understanding of the discovery limitations they will face if they cannot reach agreement on a discovery plan — we are likely to see more jurisdictions follow suit.