Local Rule LR 26.1: DISCOVERY IN CIVIL CASES

LR 26.1 DISCOVERY IN CIVIL CASES

(a) Interrogatories; Requests for Admission; Requests for Production of Documents.

(1) When answering or objecting to interrogatories, requests for admission or requests for production of documents, the replying or objecting party shall set forth immediately preceding the answer or objection, the discovery request with respect to which answer or objection is made.

(2) Parties may electronically file a "Notice of Service" setting forth the date on which the interrogatories, requests for admission or requests for production of documents or the responses thereto were served. Interrogatories, Requests for Production of Documents, and Requests for Admission shall not be filed, except as allowed by LR 26.1(a)(3) or LR 26.1(b).

(3) A motion for leave of Court to submit additional interrogatories beyond the number allowed by Fed. R. Civ. P. 33 shall include copies of such additional interrogatories to be submitted, along with a statement as to the necessity for such additional discovery, its relevance or likelihood to lead to admissible evidence, and the fact that it cannot be obtained from other sources, as well as the certification required by LR 7.2(a).

(b) Discovery Motions.

(1) Discovery motions are subject to the requirements of LR 7.2(a).

(2) Motions to compel discovery in accordance with Fed. R. Civ. P. 26 through 37 shall:

(A) quote verbatim or attach copies of each deposition question, interrogatory, request for admission, or request for production to which objection has been taken or incomplete response has been given; and,

(B) include the response and the grounds assigned for the objection (if not apparent from the objection), if any.

(3) Responses to motions to compel discovery shall state with particularity the basis for, and, when appropriate, include evidentiary support for each objection to the requested discovery or given response.

(4) Parties shall file only those portions of the deposition, interrogatory, request for documents, request for admission, or response that are at issue.

(c) Subpoena in Aid of Discovery. Absent an order of the Court to the contrary, each party to the action in which a subpoena is served requiring the production of documents or an inspection shall have the right to review and copy documents produced pursuant to such a subpoena and to participate in the inspection.

(d) Parties shall supplement disclosures and discovery responses as required by Fed. R. Civ. P. 26(e) no later than 30 days before the trial date.

(e) E-Discovery.

(1) Introduction. Counsel for parties should confer as to whether the parties will seek discovery of electronically stored information ("e-discovery"). The Court expects the parties to cooperatively agree on how to conduct e-discovery. Any agreement reached shall be submitted to the Court for approval. In the event that such agreement has not been reached and approved by the Court by the Fed. R. Civ. P. 16 scheduling conference, the following default standards shall apply until such time, if ever, the parties reach agreement and the Court approves the plan to conduct e-discovery.

(2) Discovery Conference. Parties shall discuss the parameters of their anticipated e-discovery at the Fed. R. Civ. P. 26(f) conference, as well as at the Rule 16 scheduling conference with the Court, consistent with the procedures outlined below. Prior to the Rule 26(f) conference, the parties shall exchange the following information:

(A) A list of the persons most likely to have relevant electronically stored information ("identified custodians"), including a brief description of each person's title and responsibilities (see Para. 7).

(B) A list of each relevant electronic information system that has been in place at all pertinent time periods including the physical location of the system, the type of system, whether the system is archival or active, and the person most knowledgeable about the system.

(C) The parties should also include other pertinent information about their electronically stored information and whether that electronically stored information is not reasonably accessible. Electronically stored information not reasonably accessible may include information created or used by electronic media, software, or hardware that is no longer in use maintained in redundant electronic storage media, or for which retrieval involves substantial cost.

(D) The name of the individual designated by a party as being most knowledgeable regarding that party's electronic document retention policies ("the retention coordinator"), as well as a general description of the party's electronic document retention policies for the systems identified above (see Para 7).

(E) The name of the individual who shall serve as that party's "e-discovery coordinator" (see Para. 3).

(F) Any problems reasonably anticipated to arise in connection with e-discovery. To the extent that the state of the pleadings does not permit a meaningful discussion of the above by the Rule 26(f) conference, the parties shall either agree on a date that this information will be mutually exchanged or submit the issue for resolution by the Court at the Rule 16 scheduling conference.

(3) E-discovery Coordinator. In order to promote communication and cooperation between the parties, each party to a case shall designate a single individual through whom all e-discovery requests and responses are coordinated ("the e-discovery coordinator"). Regardless of whether the e-discovery coordinator is an attorney (in-house or outside counsel), a third-party consultant, or an employee of the party, he or she must be:

(A) Familiar with the party's electronic information systems and capabilities in order to explain these systems and answer relevant questions;

(B) Knowledgeable about the technical aspects of e-discovery, including electronic document storage, organization, and format issues; and

(C) Prepared to participate in e-discovery dispute resolutions.

The e-discovery coordinators shall be responsible for organizing each party's e-discovery efforts to insure consistency and thoroughness and generally, to facilitate the e-discovery process.

(4) Timing of E-Discovery. Discovery of relevant electronically stored information shall proceed in an orderly fashion.

(A) After receiving requests for document production, the parties shall search their documents, other than those identified as electronically stored information not reasonably accessible, and produce responsive electronically stored information in accordance with Rule 26(b)(2)(B).

(B) Electronic searches of documents identified as electronically stored information not reasonably accessible shall not be conducted until the initial electronic document search has been completed. Requests for information expected to be found in not reasonably accessible sources must be narrowly focused, with some basis in fact supporting the request.

(C) On-site inspections of electronic information system under Fed. R. Civ. P. 34(b) shall not be ordered absent good cause and demonstration of specific need.

(5) Search methodology. If the responding party intends to use an electronic search to locate responsive electronically stored information, the parties shall notify all other parties and disclose proposed search terms and any restrictions as to scope and method. The parties shall confer in good faith in an attempt to reach an agreement as to the method of searching, and the words, terms, and phrases to be searched. The parties shall also attempt to reach an agreement as to the timing and conditions of any additional searches that may become necessary in the normal course of discovery.

(6) Default format of electronically stored information. If during the course of the Rule 26(f) conference the parties cannot agree to the format for document production, electronically stored information shall be produced to the requesting party as image files (e.g., PDF or TIFF). If the image file is produced, the producing party must continue to preserve the integrity of the native file, i.e., the original formatting of the document, its metadata and, where applicable, its revision history. After initial production in image file format is complete, a party must demonstrate a particularized need for production of electronically stored information in its native format.

(7) Retention. During the Rule 26(f) conference, the parties should work toward an agreed preservation Order that outlines the steps each party shall take to segregate and preserve the integrity of all relevant electronically stored information. In order to avoid later accusations of spoliation, a Fed. R. Civ. P. 30(b)(6) deposition of each party's retention coordinator may be appropriate. The retention coordinators shall:

(A) Take steps to ensure that relevant e-mail of identified custodians are not permanently deleted in the ordinary course of business and that relevant electronically stored information maintained by the individual custodians are not altered.

(B) Provide notice to the parties as to the criteria used for spam and/or virus filtering of e-mail and attachments. E-mails and attachments filtered out by such systems shall be deemed non-responsive so long as the criteria underlying the filtering are reasonable.

(8) Privilege. Counsel shall attempt to reach an agreement on a proposed Order regarding waiver of privilege or protection in the event privileged, protected or otherwise confidential electronically stored information is inadvertently disclosed. See Fed. R. Evid. 502.

(9) Costs. The shifting of discovery costs to the requesting party or the sharing of those costs between the requesting party and responding party should be considered when the electronically stored information is sought. If the parties are unable to reach an agreement, the Court, on motion of one of the parties, should consider the following factors, in descending order of importance, in determining whether any or all discovery costs should be borne by the requesting party: (1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production compared to the amount in controversy; (4) the total cost of production compared to the resources available to each party; (5) the relative ability of each party to control costs and its incentive to do so; (6) the importance of the issues at stake in the litigation; and (7) the relative benefits of obtaining the information. See also Fed. R. Civ. P. 26(b)(2)(C).