Court Sets Out Detailed Guidelines for Discovery of ESI, Adapting “Suggested Protocol” of the District of Maryland

O’Bar v. Lowe’s Home Centers, Inc., 2007 WL 1299180 (W.D.N.C. May 2, 2007)

This is a putative class action in which the plaintiffs allege they were discriminated against because they were not minorities or females.  Finding that plaintiffs were entitled to limited precertification discovery, the court ordered the parties, pursuant to Rule 26(f), to jointly prepare and submit to the court a specific and detailed precertification discovery plan.  Based upon the previous disputes between the parties, the court stated it anticipated issues arising as to the discovery of data through various types of computer programs maintained by defendant.  Thus, in order to assist the parties in conducting discovery of electronically stored information (“ESI”), the court set out detailed guidelines that would govern the parties.  The guidelines were adapted from the “Suggested Protocol for Discovery of Electronically Stored Information” set forth by the United States District Court for the District of Maryland.

The court encouraged the parties to discuss the following subjects, in preparing the precertification discovery plan:

A.  The anticipated scope of requests for, and objections to, production of ESI, as well as the form of production of ESI and, specifically, but without limitation, whether production will be of the Native File, Static Image, or other searchable or non-searchable formats;

B.  Whether Meta-Data is requested for some or all ESI and, if so, the volume and costs of producing and reviewing said ESI;

C.  Preservation of ESI during the pendency of the lawsuit;

D.  Post-production assertion, and preservation or waiver of, the attorney-client privilege, work product doctrine, and/or other privileges in light of “clawback,” “quick peek,” or testing or sampling procedures, and submission of a proposed order;

E.  Identification of ESI that is or is not reasonably accessible without undue burden or cost;

F.  Methods of identifying pages or segments of ESI produced in discovery;

G.  The method and manner of redacting information from ESI if only part of the ESI is discoverable;

H.  The nature of information systems used by the party or person or entity served with a subpoena requesting ESI;

I.  Specific facts related to the costs and burdens of preservation, retrieval, and use of ESI;

J.  Cost sharing for the preservation, retrieval and/or production of ESI, including any discovery database, differentiating between ESI that is reasonably accessible and ESI that is not reasonably accessible;

K.  Search methodologies for retrieving or reviewing ESI;

L.  Preliminary depositions of information systems personnel, and limits on the scope of such depositions;

M.  The need for two-tier or staged discovery of ESI, considering whether ESI initially can be produced in a manner that is more cost-effective, while reserving the right to request or to oppose additional more comprehensive production in a latter stage or stages;

N.  The need for any protective orders or confidentiality orders, in conformance with the Local Rules and substantive principles governing such orders;

O.  Any request for sampling or testing of ESI; the parameters of such requests; the time, manner, scope, and place limitations that will voluntarily or by Court order be placed on such processes; the persons to be involved; and the dispute resolution mechanism, if any, agreed-upon by the parties; and

P.  Any agreement concerning retention of an agreed-upon Court expert, retained at the cost of the parties, to assist in the resolution of technical issues presented by ESI.