The Northern District of California recently issued guidelines for e-discovery of electronically stored information (ESI). The guidelines and links to related resources are summarized here. The resources include:
- An ESI checklist to assist in the ESI meet and confer process
- A Model Stipulated Order re: ESI discovery
- A standing Order for all Judges in the District
The guidelines and related model orders contain the following items that are particularly noteworthy when compared to actual typical ESI practices:
- In Section 4a of the Model Stipulation, “only ESI created or received between ________ and ________ will be preserved”. This precision with dates is helpful, and will replace the vague statement that ESI must be preserved if it was created when there was a “reasonable anticipation of litigation”
- The concept of proportionality is addressed directly in the Model Stipulated Order in Section 4. This important concept deserves greater attention in practice, and the model stipulation encourages such discussion.
- In section 6 (Production Formats) of the Model Stipulated Order, “the parties agree not to degrade the searchability of documents are part of the production process”. Such degradation frequently is violated, particularly with the production of accounting records and transaction data bases.
- Guideline 2.01 states that the duty to preserve ESI is not dependant on the use of a preservation letter, or any other communication