Jeane A. Thomas

Earlier this month, the U.S. District Court for the District of Kansas “substantially revised its ESI guidelines to address that particularly critical and rapidly evolving subject.” As part of an ongoing effort to adapt its local rules and guidelines to ensure “that civil litigation actually is handled in the ‘just, speedy, and inexpensive’ manner contemplated by Rule 1 of the Federal Rules of Civil Procedure,” the Court’s Bench-Bar Committee approved recommendations made by various working groups of its Rule 1 Task Force. That task force project included a working group dedicated to e-discovery, and the result is that the Court’s ESI Guidelines have been revamped to incorporate the growing volume of e-discovery case law and guidance published in recent years.

Now twelve pages instead of its original five, the revised Guidelines include various notable updates. For example, the Guidelines now address the use of technology-assisted review (TAR), they reference the Sedona Conference Cooperation Proclamation, and they instruct counsel about the availability of Federal Rule of Evidence 502(d) to protect against waivers of privilege. The new ESI Guidelines undoubtedly place the U.S. District Court for the District of Kansas as one of the leading federal courts in the area of civil litigation e-discovery.

The Guidelines cover some basic discovery principles in detail. For example, counsel is reminded of the importance of “conducting discovery in a cooperative manner.” Specifically, there is an emphasis on the principles of the Cooperation Proclamation, and parties are warned that failure “to cooperate in facilitating and reasonably limiting discovery requests and responses . . . contributes to the risk of sanctions.” Parties are then provided with some detailed guidance about general compliance with their e-discovery-related obligations, including the duties to disclose, to notify, and to meet and confer regarding ESI. In addition, counsel and litigants are advised that they should be familiar with certain e-discovery terms and concepts, including metadata, natives and TIFFs. But, recognizing that not everyone is well-versed in e-discovery, parties to cases with significant e-discovery issues are encouraged to designate an e-discovery liaison who “should be responsible for organizing each party’s e-discovery efforts to insure consistency and thoroughness and, generally, to facilitate the e-discovery process.”

In addition, the revised Guidelines have been expanded to address recent and continuing technological advances. For example, the Guidelines advise counsel to “consider determining whether discoverable ESI is being stored by third parties in cloud storage facilities or social media,” adding that “[b]ecause of the dynamic nature of social media, preservation of this data may require the use of additional tools and expertise.”

Consistent with model orders and e-discovery guidelines and rules in other jurisdictions, parties are advised to discuss various topics prior to the Rule 26(f) conference, including potential social media evidence. Specifically, the Guidelines suggest that the parties “attempt to agree on an approach to ESI stored by third parties,” including “files stored on a cloud server or social networking data on services like Facebook, Twitter and MySpace.”

And, if a party is intending to use TAR, the Guidelines advise counsel to “attempt to reach agreement about the method of searching or the search protocol,” a principle that some could argue is consistent with the earliest TAR-related judicial opinions. Regardless of the searching methodology used, parties are advised that,“[t]o minimize the expense, counsel may consider limiting the scope of the electronic search (e.g., time frames, fields, document types) and sampling techniques to make the search more effective.”

The Guidelines reflect an intention to broadly address issues affecting e-discovery with the aim of increasing cooperation and efficiency while decreasing cost. For example, the Guidelines suggest that counsel “attempt to agree on the construction of a shared database, accessible and searchable by both parties,” expressly referencing a 2012 Delaware court’s order to use just such a protocol. The Guidelines even advise counsel to discuss “de-NISTing,” a technique for culling presumptively irrelevant ESI using a list of routine, commonly-found files compiled by the National Institute of Standards and Technology (NIST).

Ultimately, the revised Guidelines provide a very useful roadmap for compliance with applicable court rules and case precedent, and they are generally consistent with the ESI-related discovery practices espoused by other federal courts. However, the inclusion of guidance regarding TAR, Rule 502(d), de-NISTing and social media make these guidelines one of the more comprehensive and up-to-date set of ESI guidelines in effect today. As such, it provides a good indicator of what federal courts may expect from parties and counsel as e-discovery issues continue to play a growing role in the discovery process in cases of varying sizes and subject matters.