In connection with the recent revisions to the Federal Rules of Civil Procedure relating to discovery of electronically stored information (“ESI”), on June 6, 2007, the United States District Court for the Northern District of Ohio issued a new default standard for electronic discovery. This new order places very specific duties upon the parties with regard to E-discovery. The parties in a case are always free to agree upon a different process, but until and unless such agreement is reached, the parties will be obligated to follow this new default standard. While this new default standard presently only applies to cases filed in the Northern District of Ohio, other courts may already have or may soon impose similar standards.
Disclosures of ESI systems and custodians -- The new standard requires that, at the outset of each case, each party must provide to the opposing party a list of the most likely custodians of relevant ESI and a description each relevant electronic system.
ESI Retention -- The new standard also requires that within the first 30 days of discovery, the parties are to work toward an agreement outlining the steps each party will take to segregate and preserve the integrity of all relevant ESI. The Order requires that each party identify a retention coordinator who, within 7 days of identifying the relevant document custodians, will be responsible for taking steps to ensure that relevant e-mail and other ESI is not destroyed or altered. Counsel will then be required certify to the court that these steps have been taken.
The E-Discovery Coordinator -- The new standard further requires that each party designate an E-discovery coordinator, who may be an employee of the party, a third-party consultant, or in-house or outside counsel and who must be:
- Sufficiently familiar with the party’s electronic systems to explain and answer questions regarding these systems.
- Knowledgeable about the technical aspects of E-discovery, including document storage, organization, and format issues.
- Prepared to participate in E-discovery dispute resolutions.
The complete text of the new standard can be found at http://www.ohnd.uscourts.gov/Clerk_s_Office/Local_Rules/AppendixK.pdf.
In light of the new Federal Rules, employers, both within and outside of the Northern District of Ohio, should consider taking steps now to prepare summaries of likely relevant electronic systems, to ensure that effective procedures are in place to activate “litigation hold” procedures to prevent improper destruction of relevant ESI, and to develop persons capable of serving as the E-discovery coordinator in future litigation.