Sometimes you write something that strikes a chord and the hits go off the charts. That’s a good day. Other times, you pen something you’re proud of and the silence is deafening. Two years ago, I wrote a column putting forward a Bill of Rights for E-Discovery that set out expectations and obligations of requesting parties. As we used to say back in New York, “ya coulda hoid a pin drop.” Since it fell flat before, you may wonder why I’d trot it out again. Truth is, I still think it’s the germ of something worthwhile. Perhaps I missed the mark, but someone needs to hit it; and I keep hoping it might be something like this:
I am a requesting party in discovery.
I have rights.
I am entitled to:
- Production of responsive ESI in the format in which it’s kept in the usual course of business. A producing party’s fear of alteration, desire to affix Bates numbers or preference for TIFF images doesn’t trump my right to receive the evidence in its native or near-native form.
- Clear and specific identification of any intentional alteration of ESI made in the discovery process. If, e.g., a producing party omits attachments or redacts content or metadata, the producing party must promptly disclose the alteration with sufficient detail to permit me to assess whether such action was warranted.
- Production of relevant metadata when I can promptly and specifically identify the metadata fields sought and articulate a reasonable basis for the production.
- Discover the methodology employed to either select ESI for production or cull ESI from production whenever the method employed was automated, i.e., something other than manual review for responsiveness. This includes disclosure of the relevant capabilities and limitations of electronic search and indexing tools employed to produce or exclude ESI.
- A detailed explanation of costs when a producing party asserts cost as a basis to resist e-discovery.
- Put my technical advisor in direct communication with a knowledgeable counterpart for the producing party when technical issues arise, with reasonable and appropriate limits to protect legitimate privilege or confidentiality concerns.
- Assume a producing party is preserving ESI that I specifically requested be preserved absent timely notice to the contrary.
- Rely on the use of an iterative approach to electronic search, whereby the production of ESI from an initial search and review informs at least one further electronic search effort.
- Adequate preservation and complete production, both in proportion to the amount in controversy and importance of the matters at issue.
- Competence, candor and cooperation from producing party’s counsel and support personnel commensurate with the competence, candor and cooperation extended by my counsel and support personnel.
These rights come coupled with duties. Requesting parties have a commensurate obligation to learn this new craft, work cooperatively and let relevance and reasonableness bound their actions. Hence:
I am a requesting party in discovery.
I have duties.
I am obliged to:
- Anticipate the nature, form and volume of the ESI under scrutiny and tailor my requests to minimize the burden and cost of securing the information I seek.
- Clearly and promptly communicate my expectations as to the forms of ESI and fields of metadata sought and be prepared to articulate why I need a specified form of production or field of metadata.
- Work cooperatively with the producing party to identify reasonable and effective means to reduce the cost and burden of discovery, including, as appropriate, the use of tiering, sampling, testing and iterative techniques, along with alternatives to manual review and keyword search.
- Know the tools I expect to use for review and processing of ESI produced to me and whether those tools are suited to the forms of ESI sought.
- Work cooperatively with the producing party to minimize the burden of preservation and to agree promptly to release from a preservation obligation any sources that do not appear likely to hold responsive ESI.
- Accommodate requests to produce ESI in alternative forms when such requests won’t materially impair my ability to access relevant information or use the material produced.
- Accede to reasonable requests for clawback and confidentiality agreements or orders when to do so won’t materially impair my rights or those of others similarly situated.
- Direct requests for production first to the most accessible sources, and to consider responsive information produced and available to me in framing subsequent requests for production.
- Make available a competent technical advisor to communicate directly with a knowledgeable counterpart for the producing party concerning technical issues and accommodate reasonable and appropriate limits to protect legitimate privilege or confidentiality concerns.
- Employ counsel and support personnel who possess a level of e-discovery competence, candor and cooperation commensurate with the competence, candor and cooperation I expect from producing party’s counsel and support personnel.
Maybe this is just too much high-minded claptrap; but if you think otherwise–or see room for improvement–I hope you’ll take a moment to share your thoughts about ways the e-discovery community can fashion pragmatic rights and duties that find expression in a useful way.