Electronic Discovery Law

Palgut v. City of Colo. Springs, 2006 WL 3483442 (D. Colo. Nov. 29, 2006)

This order constitutes the parties’ stipulated Electronic Discovery Plan and Order to Preserve Evidence in this employment discrimination case. It includes definitions of various terms and sets out a number of discovery “protocols,” one of which relates to the format of production. The plan states that, “if requested information is or has been stored or located in native (eg. .doc, .xls, .pst) formats (not .tiff images), any requests for “documents,” or “data” shall be deemed a request for information in native format.” (Emphasis in original). The order then sets out a procedure for objecting to production in native format, which seems to conflate the new Rule 26(b)(2)(B) two-tier discovery provision with the new Rule 34(b) format of production provision:

If either party objects to producing the requested information on the ground that production in that format is not reasonably accessible because of undue burden or cost, prior to asserting an objection, the responding party will inform the requesting party of the format in which it is willing to produce it, the nature and location of the information claimed to not be reasonably accessible, the reason(s) why the requested form of production would impose an undue burden or is unreasonably costly, and afford the requesting party 10 working days (calendar days minus weekends and state or federal holidays) from receipt of such notice to propose an alternative means of compliance with the request, including payment of all or part of the costs of retrieving the information.

The order sets out a similar procedure for objecting to the production of electronic information; it also directs the parties’ computer experts to informally cooperate and discuss procedures or protocols to facilitate identification, retrieval and production of computerized information, prohibits the parties from altering or destroying documents (as that term is defined therein), and directs the parties to meet and confer on the issue of cost allocation.