In the absence of concrete rules, or when parties seem to be unable to reach a compromise on electronic discovery, courts may outline specific orders to address all eDiscovery concerns. This was the case in the April 3, 2013 Order Regarding Electronically Stored Information in W Holding Company, Inc. v. Chartis Insurance Company of Puerto Rico, 2013 WL 135262 (D. Puerto Rico). Plaintiffs in this case are seeking a defense production, and the court issued a default protocol order (with a caveat that the order may be amended by agreement of the parties.)
In addition to defining native files, metadata, static image (requiring TIFF files) and load files, the court orders the defendant to fully comply with the production requested and the plaintiff to provide the search terms, databases and fields of metadata to be searched. In addition, the court specifically addressed:
- Form of Production for Email
- Form of Production for Other WESI (Windows-Based ESI)
- Form of Production for Spreadsheets
- Load Files
- Data culling
- Duplicates
- Other Methods to Streamline Discovery
- Production Media
- Color
- Physical Documents (Subjecting TIFF files to an OCR process.)
- Inaccessible Data
- Labeling
- Claw-Back (Providing that any privileged document inadvertently produced to be promptly returned.)
After addressing each of these points in detail, it is no wonder that the court expects the parties to cooperate and follow the default order, concluding with a stringent warning: “…the parties and their attorneys can expect stiff monetary and other sanctions to be imposed against the losing party in any discovery-related motions.”