Maryland Court's Protocol for Discovery of Electronic Information

In case you haven’t seen it before, the U.S. District Court in Maryland has issued a Suggested Protocol for Discovery of Electronically Stored Information.  The protocol is quite detailed and comprehensive, and sets forth a process by which parties should address issues concerning the production of ESI.

Although not mandatory, the protocol alerts practitioners in matters before that court that “compliance with this Protocol may be considered by the Court in resolving discovery disputes, including whether sanctions should be awarded pursuant to Fed. R. Civ. P. 37.”  Id. at 2; see id. at 24-25 (If a party is not reasonably prepared for the Fed. R. Civ. P. 26(f) Conference of Parties in accordance with the terms of this Protocol, that factor may be used to support a motion for sanctions by the opposing party for the costs incurred in connection with that Conference.”).

The protocol recognizes that discovery of ESI may not be appropriate in every case, and assumes that parties “will consider the nature of the claim, the amount in controversy, agreements of the parties, the relative ability of the parties to conduct discovery of ESI, and such other factors as may be relevant under the circumstances” before seeking ESI.  Id. at 1.

Where discovery of ESI appears warranted based on the circumstances of a particular case, the protocol details a process by which parties and their counsel should begin addressing ESI-related issues early on.  The protocol envisions a very detailed Rule 26(f) conference, and even exchanges of pertinent information prior to the Rule 16(f) conference, such as “information relating to network design, the types of databases, database dictionaries,” and the like.  Id. at 5.  The protocol advises that a “reasonable request for a prior exchange of information should not be denied,” and that if the court later determines that the Rule 26(f) conference was “not productive” due to lack of meaningful participation by people with specific ESI knowledge, sanctions may be warranted.  Id. at 6-7. 

The protocol provides a thorough description of litigation hold procedures that the parties should consider and address, and asks the parties to identify IT personnel to serve as the “ESI coordinator” for the case.  Id. at 11. 

Importantly, the protocol instructs counsel that they should “[b]ecome reasonably familiarwith their respective clients’ current and relevant past ESI,” including “[o]bsolete or “legacy” systems containing ESI.”  Id. at 12.  Representatives of the parties, in addition to counsel, are required to participate in the Rule 26(f) conference.  Id. at 24.

The protocol instructs parties to discuss the format for producing ESI, and sets up a default for producing ESI in static format if the parties cannot agree upon another format.  Id. at 17.

Judges and commentators have looked to this protocol for guidance in resolving ESI disputes, and it is likely that other courts may follow the Maryland court’s lead in adopting similar protocols.