Dunstan et al v. comScore, Inc.

Filing 26

Standing Order Relating To The Discovery Of Electronically Stored Information. Signed by the Honorable James F. Holderman on 10/4/2011: Mailed notice (am)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
,

Jeff Dunstan et al
Plaintiff,
vs.
comScore, Inc.

,
Defendant.

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Case No. 11 C 5807
Judge James F. Holderman

STANDING ORDER RELATING TO THE
DISCOVERY OF ELECTRONICALLY STORED INFORMATION
This court is participating in the Pilot Program initiated by the Seventh Circuit Electronic
Discovery Committee. Parties and counsel in the Pilot Program with civil cases pending in this
Court shall familiarize themselves with, and comport themselves consistent with, that
committee's Principles Relating to the Discovery of Electronically Stored Information. For more
information about the Pilot Program please see the web site of the Committee,
www.discoverypilot.com. If any party believes that there is good cause why a particular case
should be exempted, in whole or in part, from the Principles Relating to the Discovery of
Electronically Stored Information, then that party may raise such reason with the Court.

General Principles
Principle 1.01 (Purpose)
The purpose of these Principles is to assist courts in the administration of Federal Rule of
Civil Procedure 1, to secure the just, speedy, and inexpensive determination of every civil case,
and to promote, whenever possible, the early resolution of disputes regarding the discovery of
electronically stored information ("ESI") without Court intervention. Understanding of the
feasibility, reasonableness, costs, and benefits of various aspects of electronic discovery will
inevitably evolve as judges, attorneys and parties to litigation gain more experience with ESI and
as technology advances.
Principle 1.02 (Cooperation)
An attorney's zealous representation of a client is not compromised by conducting
discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate

in facilitating and reasonably limiting discovery requests and responses raises litigation costs and
contributes to the risk of sanctions.
Principle 1.03 (Discovery Proportionality)
The proportionality standard set forth in Fed. R. Civ. P. 26(b)(2)(C) should be applied in
each case when formulating a discovery plan. To further the application of the proportionality
standard in discovery, requests for production of ESI and related responses should be reasonably
targeted, clear, and as specific as practicable.
Early Case Assessment Principles
Principle 2.01 (Duty to Meet and Confer on Discovery and to Identify Disputes for Early
Resolution)
(a)

Prior to the initial status conference with the Court, counsel shall meet and

discuss the application of the discovery process set forth in the Federal Rules of Civil Procedure
and these Principles to their specific case. Among the issues to be discussed are:
(1)

the identification of relevant and discoverable ESI and documents,
including methods for identifying an initial subset of sources of ESI and
documents that are most likely to contain the relevant and discoverable
information as well as methodologies for culling the relevant and
discoverable ESI and documents from that initial subset (see Principle 2.05);

(2)

the scope of discoverable ESI and documents to be preserved by the
parties;

(3)

the formats for preservation and production of ESI and documents;

(4)

the potential for conducting discovery in phases or stages as a method for
reducing costs and burden; and

(5)

the potential need for a protective order and any procedures to which the
parties might agree for handling inadvertent production of privileged
information and other privilege waiver issues pursuant to Rule 502(d) or (e) of
the Federal Rules of Evidence.
(a)

Disputes regarding ESI that counsel for the parties are

unable to resolve shall be presented to the Court at the initial status

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conference, Fed. R. Civ. P. Rule 16(b) Scheduling Conference, or as soon
as possible thereafter.
(b)

The attorneys for each party shall review and understand

how their client's data is stored and retrieved before the meet and confer
discussions in order to determine what issues must be addressed during the
meet and confer discussions.
(c)

If the Court determines that any counsel or party in a case

has failed to cooperate and participate in good faith in the meet and confer
process or is impeding the purpose of these Principles, the Court may
require additional discussions prior to the commencement of discovery,
and may impose sanctions, if appropriate.
Principle 2.02 (E-Discovery Liaison(s))
In most cases, the meet and confer process will be aided by
participation of an e-discovery liaison(s) as defined in this Principle. In
the event of a dispute concerning the preservation or production of ESI,
each party shall designate an individual(s) to act as e-discovery liaison(s)
for purposes of meeting, conferring, and attending court hearings on the
subject. Regardless of whether the e-discovery liaison(s) is an attorney
(in-house or outside counsel), a third party consultant, or an employee of
the party, the e-discovery liaison(s) must:
be prepared to participate in e-discovery dispute resolution;
(a)

be knowledgeable about the party's e-discovery efforts;

(b)

be, or have reasonable access to those who are, familiar

with the party's electronic systems and capabilities in order to explain
those systems and answer relevant questions; and
(c)

be, or have reasonable access to those who are,

knowledgeable about the technical aspects of e-discovery, including
electronic document storage, organization, and format issues, and relevant
information retrieval technology, including search methodology.
Principle 2.03 (Preservation Requests and Orders)
Appropriate preservation requests and preservation orders further the goals of these Principles.
Vague and overly broad preservation requests do not further the goals of these Principles and are
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therefore disfavored. Vague and overly broad preservation orders should not be sought or
entered. The information sought to be preserved through the use of a preservation letter request
or order should be reasonable in scope and mindful of the factors set forth in Rule 26(b)(2)(C).
(a)

To the extent counsel or a party requests preservation of ESI through the use of a

preservation letter, such requests should attempt to ensure the preservation of relevant and
discoverable information and to facilitate cooperation between requesting and receiving counsel
and parties by transmitting specific and useful information. Examples of such specific and useful
information include, but are not limited to:
names of the parties;
(1)

factual background of the potential legal claim(s) and identification of
potential cause(s) of action;

(2)

names of potential witnesses and other people reasonably anticipated to
have relevant evidence;

(3)

relevant time period; and

(4)

other information that may assist the responding party in assessing what
information to preserve.
(a)

If the recipient of a preservation request chooses to

respond, that response should provide the requesting counsel or party with
useful information regarding the preservation efforts undertaken by the
responding party. Examples of such useful and specific information
include, but are not limited to, information that:
identifies what information the responding party is willing to preserve and
the steps being taken in response to the preservation letter;
identifies any disagreement(s) with the request to preserve; and
identifies any further preservation issues that were not raised.
(a)

Nothing in these Principles shall be construed as requiring

the sending of a preservation request or requiring the sending of a response to
such a request.
Principle 2.04 (Scope of Preservation)
Every party to litigation and its counsel are responsible for taking reasonable and proportionate
steps to preserve relevant and discoverable ESI within its possession, custody or control.
Determining which steps are reasonable and proportionate in particular litigation is a fact
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specific inquiry that will vary from case to case. The parties and counsel should address
preservation issues at the outset of a case, and should continue to address them as the case
progresses and their understanding of the issues and the facts improves.
Discovery concerning the preservation and collection efforts of another party may be appropriate
but, if used unadvisedly, can also contribute to the unnecessary expense and delay and may
inappropriately implicate work product and attorney-client privileged matter. Accordingly, prior
to initiating such discovery a party shall confer with the party from whom the information is
sought concerning: (i) the specific need for such discovery, including its relevance to issues
likely to arise in the litigation; and (ii) the suitability of alternative means for obtaining the
information. Nothing herein exempts deponents on merits issues from answering questions
concerning the preservation and collection of their documents, ESI, and tangible things.
The parties and counsel should come to the meet and confer conference prepared to discuss the
claims and defenses in the case including specific issues, time frame, potential damages, and
targeted discovery that each anticipates requesting. In addition, the parties and counsel should be
prepared to discuss reasonably foreseeable preservation issues that relate directly to the
information that the other party is seeking. The parties and counsel need not raise every
conceivable issue that may arise concerning their preservation efforts; however, the
identification of any such preservation issues should be specific.
The following categories of ESI generally are not discoverable in most cases, and if any party
intends to request the preservation or production of these categories, then that intention should be
discussed at the meet and confer or as soon thereafter as practicable:
"deleted," "slack," "fragmented," or "unallocated" data on hard drives;
random access memory (RAM) or other ephemeral data;
on-line access data such as temporary internet files, history, cache, cookies, etc.;
data in metadata fields that are frequently updated automatically, such as last-opened dates;
backup data that is substantially duplicative of data that is more accessible elsewhere; and
other forms of ESI whose preservation requires extraordinary affirmative measures that are not
utilized in the ordinary course of business.
(a)

If there is a dispute concerning the scope of a party's preservation efforts, the

parties or their counsel must meet and confer and fully explain their reasons for believing that
additional efforts are, or are not, reasonable and proportionate, pursuant to Rule 26(b)(2)(C). If

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the parties are unable to resolve a preservation issue, then the issue should be raised promptly
with the Court.
Principle 2.05 (Identification of Electronically Stored Information)
At the Rule 26(f) conference or as soon thereafter as possible, counsel or the parties shall discuss
potential methodologies for identifying ESI for production.
Topics for discussion may include, but are not limited to, any plans to:
eliminate duplicative ESI and whether such elimination will occur only within each particular
custodian's data set or whether it will occur across all custodians;
filter data based on file type, date ranges, sender, receiver, custodian, search terms, or other
similar parameters; and
use keyword searching, mathematical or thesaurus-based topic or concept clustering, or other
advanced culling technologies.
Principle 2.06 (Production Format)
At the Rule 26(f) conference, counsel and the parties should make a good faith effort to agree on
the format(s) for production of ESI (whether native or some other reasonably usable form). If
counsel or the parties are unable to resolve a production format issue, then the issue should be
raised promptly with the Court.
The parties should confer on whether ESI stored in a database or a database management system
can be produced by querying the database for discoverable information, resulting in a report or a
reasonably usable and exportable electronic file for review by the requesting counsel or party.
ESI and other tangible or hard copy documents that are not text-searchable need not be made
text-searchable.
Generally, the requesting party is responsible for the incremental cost of creating its copy of
requested information. Counsel or the parties are encouraged to discuss cost sharing for optical
character recognition (OCR) or other upgrades of paper documents or non-text-searchable
electronic images that may be contemplated by each party.

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Education Provisions
Principle 3.01 (Judicial Expectations of Counsel)
Because discovery of ESI is being sought more frequently in civil litigation and the
production and review of ESI can involve greater expense than discovery of paper documents, it
is in the interest of justice that all judges, counsel and parties to litigation become familiar with
the fundamentals of discovery of ESI. It is expected by the judges adopting these Principles that
all counsel will have done the following in connection with each litigation matter in which they
file an appearance:
Familiarize themselves with the electronic discovery provisions of Federal Rules of Civil
Procedure, including Rules 26, 33, 34, 37, and 45, as well as any applicable State Rules of
Procedure;
Familiarize themselves with the Advisory Committee Report on the 2006 Amendments to the
Federal

Rules

of

Civil

Procedure,

available

at

http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/EDiscovery_w_Notes.pdf; and
Familiarize themselves with these Principles.
Principle 3.02 (Duty of Continuing Education)
Judges, attorneys and parties to litigation should continue to educate themselves on
electronic discovery by consulting applicable case law, pertinent statutes, the Federal Rules of
Civil Procedure, the Federal Rules of Evidence, The Sedona Conference® publications relating
to electronic discovery1, additional materials available on web sites of the courts2, and of
other organizations3 providing educational information regarding the discovery of ESI.4

ENTER:
Dated: October 4, 2011
James F. Holderman
United States District Judge

1

http://www.thesedonaconference.org/content/miscFiles/publications html?grp=wgs110

2

E.g. http://www.ilnd.uscourts.gov/home/

3

E.g. http://www.discoverypilot.com, www.fjc.gov (under Educational Programs and Materials)

4

E.g. http://www.du.edu/legalinstitute

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