The Latest eDiscovery Checklist: Noteworthy Guidance from a Florida Federal Court
I love checklists – and always have. Whether in the office or at home, few tools are better at ensuring nothing slips through the cracks.
Atul Gawande put it well in his best-selling book The Checklist Manifesto: “We have accumulated stupendous know-how. . . . Nonetheless, that know-how is often unmanageable. Avoidable failures are common and persistent, not to mention demoralizing and frustrating. . . . And the reason is increasingly evident: the volume and complexity of what we know has exceeded our individual ability to deliver its benefits correctly, safely, or reliably.”
This is true, Gawande argues, “across many fields – from medicine to finance, business to government.” Those of us in the legal industry would agree that the practice of law generally – and eDiscovery in particular – belong on the list.
Enter the United States District Court for the Southern District of Florida. It joins a growing list of “ESI-forward” federal courts – including the Northern District of California and the District of Colorado – as the latest federal trial court to announce proposed Local Rule amendments that include an “ESI Checklist” (see the final two pages) for use in preparing for Rule 26(f) conferences and drafting Rule 16 case management reports. Litigants in courts beyond the Southern District of Florida will benefit from the considerations in the ESI Checklist – especially if their court hasn’t yet published its own. And those of us who are privileged to assist clients in the often thorny and sensitive negotiations surrounding the discovery, review, and production of ESI – either in the Rule 26(f) context or otherwise – now have yet another tool in our toolbox.
The ESI Checklist covers the following topics in the following order: ESI Preservation, Identity of eDiscovery Liaison, Informal Discovery About Location and Types of Systems, Proportionality and Costs, Search Methods, Phasing of eDiscovery, ESI Production, and Privilege. Each topic contains multiple questions and other considerations that litigants should discuss and hopefully reach agreement upon.
Every checklist must balance ease of use and reasonable brevity with enough detail so that important considerations are not overlooked. Could the ESI Checklist from the Southern District of Florida be more detailed? Of course. Should it be more detailed? Probably not. As it stands, it allows the competent eDiscovery professional to fill in the gaps by bringing their good judgment and expertise to bear without the worry that they will forget an important topic for negotiation in the heat of advocacy or in the midst of daily distractions. That’s an advantage every professional should welcome – whether they find themselves in the Southern District of Florida or not.
Christopher M. Schultz serves as Executive Vice President and General Counsel of Level 2 Legal Solutions. In addition to serving as the chief legal officer, Mr. Schultz helps coordinate all aspects of the company’s managed review and corporate compliance projects. He also leads engagement teams assisting clients with a full range of electronic discovery and litigation readiness projects. In addition, Mr. Schultz is available to provide clients with expert testimony and special discovery master services. A dynamic speaker with more than five years of college-level teaching experience, Mr. Schultz is a frequent presenter of continuing legal education and other seminars concerning eDiscovery.
Contact Chris to learn more about how he and Level 2 Legal can help facilitate your next Rule 26(f) or similar ESI negotiation.