In the past few years, a number of courts have issued standing orders or have
issued guidelines or forms to govern the production of electronically stored
information (ESI). These orders and forms can be found on the courts’ websites,
although locating them sometimes requires some hunting. Fortunately, a number of
the form orders promote reasonable discovery limits, following the trend
reflected in the proposed changes to the Federal Rules of Civil Procedure.
For example, the Western District of Washington has issued a model ESI
agreement that requires proportional, cooperative discovery. See W.D. Wash. [Model] Agreement Regarding Discovery of Elec. Stored
Info. and [Proposed] Order (2015). This model agreement requires the parties
to exchange the names of the five custodians most likely to have discoverable
ESI. It also states that the parties shall not be required to modify procedures
used by them in the ordinary course of business to back up and archive data and,
absent a showing of good cause, need not preserve things like server, system or
network logs, or deleted, slack, fragmented, or other data accessible only
through forensic means. If search terms are used, the model agreement states, a
requesting party is entitled to add no more than five additional terms or
queries, absent a showing of good cause, and “focused terms and queries, rather
than overbroad ones[,] ... should be employed.”
The Northern District of California has also published Guidelines for the
Discovery of Electronically Stored Information. These guidelines similarly
encourage “reasonableness and proportionality in discovery.” See N.D. Cal.
Guidelines for the Discovery of Elec. Stored Info. 1.03 (2012). The Northern
District also provides practitioners with a checklist for ESI discussions during
the meet and confer, which requires a discussion of proportionality and costs.
See N.D. Cal ESI Checklist § IV.
The Eastern District of Texas has a helpful model ESI order specific to
patent litigation. See E.D. Tex. [Model] Order Regarding E-discovery in Patent Cases
(2014). This order limits the requesting party to eight email
custodians. Id. at 4. The model order also limits the number of search
terms per custodian to 10. Id. Although agreement of the parties can
modify these model terms, the endorsement by the district court of this more
limited discovery gives leverage to parties seeking reasonable discovery limits.
The U.S. District Court for the District of Colorado similarly issued
Guidelines Addressing the Discovery of Electronically Stored Information in
2014. See D. Colo. Guidelines Addressing the Discovery of Elec. Stored
Info. (2014). Those guidelines stress “[c]ooperation in reasonably
limiting ESI discovery requests,” and recognize that e-discovery
responsibilities are “not measured by a standard of perfection,” but require
good faith, reasonable efforts. Id. at Commentary 1.3, 1.4.
Those guidelines also note the cost of privilege logs and state that counsel
should confer in good faith to identify types of documents (such as email
strings) that need not be logged on a document-by-document basis. Id. at
These are just a few examples. Knowing the local rules regarding e-discovery
is important to ensure that you begin your case on the right foot and are
prepared to address issues that may come up in court or during meet and confers
with opposing counsel. Also, if the court has issued guidelines with favorable
language on limiting electronic discovery, counsel should use this to help drive
a reasonable discovery plan.