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Agreement on eDiscovery Demonstrates Cooperative Goals of Rule 26(f) Conference

Posted on December 13th, 2013

In Griffin Technology Holdings Inc. et al v. IWICS, Inc., No C13-1465 RAJ (Dist. Court W.D. Washington Nov. 25, 2013), plaintiff Griffin and defendant IWICS have ongoing litigation regarding a contract dispute. The litigation is still in the early stages of discovery, and the present agreement and order are an excellent example of Fed. R. Civ. P. 26(f) conferences creating a stipulated eDiscovery plan through cooperation.

Detailed Enumeration of eDiscovery Plans

Consider clause B (2), Third-Party Data Sources:

A list of third-party data sources, if any, likely to contain discoverable ESI (e.g. third-party email and/or mobile device providers, etc.) and, for each such source, the extent to which a party is (or is not) able to preserve information stored in the third-party data source.

The plaintiff, in agreeing to this clause, expects defendants will provide a straightforward list of places with possibly relevant electronic data but outside direct defendant control. The clause has clear expectations, and any deviation from those expectations will be easier for the court to recognize.

Specific Electronic Document Format Agreement to Forestall Production Delays

Another useful clause, E (3), Format, sets acceptable electronic document production formats:

The parties agree that ESI will be produced to the requesting party with searchable text, in a format to be decided between the parties. Acceptable formats include, but are not limited to, native, TIFF (with a companion text file), and searchable PDF. Unless otherwise agreed to by the parties, files that are not easily converted to image format, such as spreadsheet, database and drawing files, should be produced in native format.

Notice how the plaintiff allows for some leeway in document format for production while retaining control. The plaintiff also agreed to specific expectations in clause E (5) for Metadata, so requests for metadata are limited to nine fields.

Both clauses represent efforts by the parties to restrict future arguments, and plaintiffs facing a Rule 26(f) conference can review how clearly defined eDiscovery expectations lessen the likelihood for disputes. By providing procedures, any future complaints to the court have a baseline on which to judge bad behavior.

ILS – Plaintiff Electronic Discovery Experts

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