The judges of the United States District Court for the Eastern District of Michigan have announced the approval, “on a pilot period basis,” of a Model Order Relating to the Discovery of Electronically Stored Information and a Rule 26(f) meet and confer checklist. “It is within the judicial officer’s discretion whether these materials may be used.”
The Model Order sets forth a series of principles which address a myriad of issues including cooperation, proportionality, the duty to meet and confer, preservation, the identification of electronically stored information (ESI) and format of production, among others. The checklist sets forth a series of potential topics to be discussed at the parties’ meet and confer.
Generally, the Model Order provides specific direction regarding how to proceed with electronic discovery and, in some cases, places specific limitations on parties’ electronic discovery obligations. Certain categories of ESI are generally exempted from discovery, for example, including “random access memory (RAM) or other ephemeral data,” “on-line access data such as temporary internet files, history, cache, cookies, etc.” and “data in metadata fields that are frequently updated automatically, such as last-opened dates,” among others. Notably, the Model Order also places restrictions on parties’ search obligations, including limiting a party’s search for ESI to 160 hours, “exclusive of time spent reviewing the ESI determined to be responsive for privilege or work product protection, provided that the producing party can demonstrate that the search was effectively designed and efficiently conducted.”
Per the announcement of the order’s approval, the court may consider in future whether to adopt the materials “as a uniform practice for the Court.”
The Model Order and Checklist are available here.