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The proliferation of these broad ESI requests has led to a disproportionate increase in side litigation over ESI disputes, with the accompanying negative effect on court dockets. The protocol also provides guidance for discussions during the Rule 26(f) conference, including suggesting discussion about the scope of forthcoming discovery requests; production formation; volume and costs of data; preservation of ESI in various contexts, including dynamic systems (those that are in use during the pendency of the lawsuit and in which ESI changes); identification of ESI that is not reasonably accessible; costs and cost-sharing; search methodologies, including agreement on search terms; and the option of tiering discovery.

No less problematic, employers are regularly undertaking to justify broad requests by advocating for extensive search term lists, seeking to delve into questionable and arguably unrelated and private electronic communications even as they may appear to be limiting their search. The District of Maryland also states that metadata need not be produced as a routine matter absent exception or when the metadata is imbedded.

But from a plaintiff's perspective, it is also important for the law to recognize that the plaintiff's ESI differs structurally from that of the defendant's for at least three reasons: It is these structural issues-personal use, difference in technological capacities, and data preservation-that this chapter addresses. This district has adopted a default standard for discovery of ESI, which requires cooperation and proportionality; demarcates what is or is not required in a privilege log; outlines the ESI topics the parties should discuss during the Rule 26(f) conference; mandates disclosure of 10 key custodians; limits overbroad e-discovery, including limiting the use of excessive and overbroad search terms and placing boundaries on production of metadata; addresses the format of ESI production, outlines the duty of notice, including the requirements that parties identify what ESI they believe to be not reasonably accessible and what ESI is controlled by third-parties; outlines the contours of the reasonable duty to preserve, including that, "[a]bsent a showing of good cause by the requesting party, the parties shall not be required to modify, on a going-forward basis, the procedures used by them in the ordinary course of business to back up and archive data; provided, however, that the parties shall preserve the non-duplicative discoverable information currently in their possession, custody or control"; and provides a list of 13 sources of ESI that are presumptively not subject to discovery.

To that end, it provides a broad overview of electronic discovery (e-discovery) and the invariable differences between an employer's and a plaintiff's communication media and usage. The District of Delaware also has a default procedure for accessing the source code of standalone computers.

The Sedona Principles emphasize that "[t]he concept of relevance is no broader or narrower in the electronic context than in the paper context." court itself recognized, the burden of reviving inaccessible data, including metadata, is unequal.

Overbroad, virtually universal requests by employers for access to plaintiff ESI fail to satisfy these basic discovery requisites. 2009) (refusing to allow thousands of search terms commonly used in construction industry because doing so would virtually ensure hits on respondent's entire electronic database); , No.

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Both sides, human and corporate alike, are coming to realize that discovery of ESI is crucial, with e-discovery rather more likely to unearth relevant contemporaneous communications to the litigation than a mere search of paper records. The local rules also require that parties designate an e-discovery liaison in case of disputes. Thus, it is to the benefit of a plaintiff that both parties come to the table willing to negotiate over reasonable ESI parameters, with meaningful limits predicated on relevance and particularity, and to insist an employer take into account the private nature of the plaintiff's communications and narrow discovery accordingly. " "cunt" "dating" "desire" "desperate" "disabled" "disease" "divorc! In the Proclamation, the Sedona Conference's experts promote the importance of meaningful negotiations and cooperation between the parties over the scope of e-discovery; a refrain that is gaining significant ground with the courts. This chapter also highlights emerging case law on escalating issues relating to plaintiff ESI. This district has a civil discovery practice handbook in which ESI is specifically covered. The handbook's chapter on e-discovery counsels that, if reasonable, a requesting party can ask that ESI be produced in either electronic or hard copy format or both, and a responding party can request ancillary electronic information. 2011) ("Plaintiff will not be required to provide defendant with any passwords or user names to any social websites, so that defendant can conduct its own search and review. On all sides, parties are expanding their requests for ESI. The handbook specifies factors the court is to consider when deciding a motion to compel, including burden, expense, and the breadth of the discovery request, as well as the resources of the parties. Just as the Court would not give defendant the ability to come into plaintiff's home or peruse her computer to search for possible relevant information, the Court will not allow defendant to review social media content to determine what it deems is relevant."); Mackelprang v.

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