Discovery of Electronically Stored Information
- Prior to a Rule 26(f) conference, each party shall individually assess the likelihood that its ESI will play a role in discovery. When a party in possession of ESI reasonably anticipates, or should anticipate, that its ESI will play a significant role, the party shall complete the following tasks for discussion at the Rule 26(f) conference:
- determine how and where its ESI is stored; how it has been or can be preserved, accessed, retrieved, and produced; and any other issues to be discussed at the Rule 26(f) conference including the issues set forth in subparagraph (c) below; and
- identify a person or persons with knowledge about the ESI, with the ability to facilitate, through counsel, the preservation and discovery of ESI.
- At the Rule 26(f) conference, counsel shall meet and confer about:
- the steps the parties have taken to preserve ESI;
- the anticipated scope of ESI discovery and the search protocol for locating responsive ESI, including methods to filter the data, such as using search terms or date ranges;
- procedures to deal with inadvertent production of privileged information;
- accessibility of ESI, including but not limited to the accessibility of backup, deleted, archival, or historic legacy data;
- the media, format and procedures for preserving and producing ESI;
- allocation of costs of preservation, production, and restoration (if possible and/or necessary) of any ESI;
- the need for a designated resource person through who all issues relating to the preservation and production of ESI should be addressed;
- the need for an Order setting out the ESI protocol; and
- any other issues related to the discovery of ESI.