This is the first in a series of articles that will cover the different phases of e-discovery.
"If I had only one hour to save the world, I would spend 55 minutes defining the problem, and only five minutes finding the solution." ~ Albert Einstein
ESI identification is prominently featured in the early disclosure requirements of the Federal Rules. Rule 26 requires parties to discuss ESI issues at their first conference, include them in their report to the court and reveal their ESI sources in their initial disclosures. The court also may issue an appropriate case management order:
- First discovery conference: “In conferring, the parties must ... develop a proposed discovery plan. .... A proposed plan must state the parties’ views and proposals on ... any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.” Rule 26(f)(3)(C)
- Initial disclosure: “[A] party must, without awaiting a discovery request, provide ... a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.” Rule 26(a)(1)(A)(ii)
- Initial scheduling order: After the Rule 16 pretrial conference, the court must issue a scheduling order which may “provide for disclosure or discovery of electronically stored information.” Rule 16(b)(3)(B)(iii)
The Rules also have been amended to explicitly address the costs of producing marginally relevant ESI. Consider Rule 26(b)(2)(B) (December 2010):