Parties can live with a good call or a bad one, but they need the balls and strikes called promptly.   The United States District Court for the District of Maryland has established several processes for avoiding discovery disputes and promptly resolving those that may arise.

• First, the “ESI Principles” provide voluntary suggestions to avoid disputes over ESI;
• Second, under the “ESI Principles” and “Discovery Guidelines” parties are advised to “promptly” present discovery disputes to the Court, and they may do so by filing a letter in lieu of a motion; and,
• Third, the District of Maryland has also had an emergency discovery dispute resolution procedure since 2010.  That procedure is posted at Discovery | District of Maryland | United States District Court (uscourts.gov).

The District of Maryland has published Local Rules, Discovery Guidelines, and ESI Principles.  In 2016, the District of Maryland replaced its 2007 Suggested Protocol for Discovery of Electronically Stored Information with the Principles for the Discovery of Electronically Stored Information in Civil Cases.  Although they are now approximately seven years old, the Court’s “ESI Principles” are a valuable resource.

THE “ESI PRINCIPLES”

Proposed “ESI Principles” were drafted by a Bar Association subcommittee that I chaired.  The drafting process is described in Chapter 7 of M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020).  The Hon. J. Mark Coulson was the Court’s representative to that subcommittee.

Prompt Presentation and Expedited Resolution

The ESI Principles and Discovery Guidelines give permission to promptly file a letter outlining a discovery dispute.  Upon doing so, the Court will schedule a telephone conference and may resolve the dispute immediately or develop other expedited procedures for resolution.

ESI Principle 2.05 is captioned: “Disputes Regarding ESI.” Under it, disputes regarding ESI that the parties are unable to resolve “shall be presented to the Court at the earliest reasonable opportunity.” [emphasis added]. Additionally, Subsection (d) of ESI Principle 2.01 provides that, if the parties are unable to agree on a preservation issue, they should raise it “promptly” with the Court.  

Prompt presentation of discovery disputes is also suggested in Discovery Guideline 1.b.  Further, Discovery Guideline 1.f states: “Counsel may bring the unresolved dispute to the Court’s attention by filing a letter, in lieu of a written motion, that briefly describes the dispute, unless otherwise directed by the Court.”  [emphasis added].

Discovery Guideline 1.f states that, upon receipt of that letter, the Court will schedule a conference call or initiate other expedited procedures to resolve the dispute.  However, if the dispute is too complex for this process, the Court may instead set an expedited briefing schedule for resolution.

This non-emergency process provides an expedited avenue for prompt resolution that supplements the emergency procedure described below.  Implementation of it was described in Court Uses an Informal Discovery Procedure to Hold That Untimely Objections Were Waived.

Other Ways the “ESI Principles” Further Just, Speedy, and Inexpensive Resolutions

In addition to suggesting prompt dispute resolution, the ESI Principles do much more to facilitate e-discovery by preventing disputes.

Principle 1.01 makes it clear that compliance with the ESI Principles is voluntary.  The purpose of the ESI Principles is “to encourage reasonable electronic discovery, in cases where it is appropriate to conduct such discovery, with the goal of reducing cost, burden, and delay and to ‘secure the just, speedy, and inexpensive determination of every action and proceeding’ pursuant to Fed. R. Civ. P. 1.” 

Although the ESI Principles are non-binding, Discovery Guideline 4.d encourages compliance and the Court’s ESI Principles state: “These ESI Principles also promote the avoidance or early resolution of disputes regarding the discovery of ESI without Court intervention.”^[1]

Principle 1.02 specifically recognizes the Sedona Conference’s Cooperation Proclamation.  It suggests early exchanges of information, giving a number of examples of the types of information that may be helpful to exchange.  Notably, cooperation is also required by Discovery Guideline 1.a and 1.d of the Court’s Discovery Guidelines.^[2]  

Principle 1.02 re-emphasizes one of the goals of the December 2015 amendments to Fed.R.Civ.P. 26(b), by applying proportionality to all phases of discovery, including “the identification, preservation, collection, search, review, and production of ESI….”  Appendix A provides additional information.^[3]

Principle 2.01 addresses preservation and directs discussion as early as feasible and continuing periodically during the case. It outlines the contours of preservation notices.^[4]  

Principle 2.02 provides guidance concerning Rule 26(f) conferences of the parties. It provides a detailed list of topics that counsel should be prepared to discuss.  Appendix A amplifies that listing.^[5]  

Rule 2.03 carries forward the old Protocol’s recommendation of appointing ESI Liaisons.  The liaison is tasked with becoming knowledgeable about key aspects of the party’s ESI.  Appendix A states that the parties should discuss whether an ESI liaison will be designated and, if so, how the liaison will be used.

Principle 2.04 addresses production.  It discusses form or forms of production, privilege logs, metadata, cost-shifting, and discoverability of search methodologies and litigation hold materials.^[6]  It notes that parties may wish to address a Fed.R.Evid. 502 order.

One of the most important dispute-prevention parts of the ESI Principles is Appendix 2, “Sample Production Protocols.”  

Appendix 2.1 is a sample hybrid production protocol that “permits the conversion of [some] ESI to a static image format” and the use of “load files.”  It discusses the contents of .opt and .dat files.  For more information on load files, see  How to Read a Load File. 

Appendix 2.2 is a “Native Production Protocol.

This protocol recognizes that conversion of ESI from its native format may impose an undue burden on the parties and may render the production  less complete and usable. A native production permits technically-proficient parties to make more efficient use of the production and enables parties with limited resources to utilize low-cost and commonly-available tools to conduct search and review, eliminating the need to procure additional software required to pair images with text and metadata. Moreover, native productions offer greater flexibility, and because of their smaller size, native formats can reduce the cost to process and store data on a per-gigabyte basis. For use in proceedings, parties may wish to convert selected native documents to static images or present the information digitally. In the case of the former, the parties may consider reaching agreement on the procedure for stipulation to the image format.

PRINCIPLES FOR THE DISCOVERY OF ELECTRONICALLY STORED INFORMATION IN CIVIL CASES, Appendix 2.2 (D. Maryland.)

Appendix 2 was drafted by Craig Ball, Esq. See Clarify Requests for Native ESI | Ball in your Court (craigball.net)(Aug. 8, 2022).

Principle 3.01 states the expectation that counsel will be prepared to address ESI.  Local Rule 802.h states that the Court will expect that counsel will have reviewed the ESI Principles.  Discovery Guideline 1.c states that counsel are expected to have read the ESI Principles.

All-in-all, the ESI Principles, especially in conjunction with the Discovery Guidelines, promote the goal of Fed.R.Civ.P. 1 – the just, speedy, and inexpensive determination of an action.^[7]

THE EMERGENCY DISCOVERY DISPUTE RESOLUTION PROCEDURE

The District of Maryland also has an emergency dispute resolution procedure.  The Court’s website states that:

“In July 2010, the Court adopted a procedure to be followed in the event an emergency discovery dispute arises and the lawyers are not able to resolve it despite good faith efforts to do so. An ‘emergency’ dispute is one that merits immediate attention so that discovery is not unnecessarily delayed.

If such a dispute arises, the process described below should be followed:

1. Counsel should make good faith attempts to resolve the dispute themselves.
2. If unsuccessful, counsel should notify the judge handling discovery in the case (‘the presiding judge’). This is the district judge assigned to the case or, in the event that the district judge has entered an order referring all discovery disputes to a magistrate judge, the magistrate judge to whom the referral has been made.
3. Notice to the presiding judge may be by telephone or in writing, as prescribed by the presiding judge. The notice must demonstrate why the matter is an emergency and that counsel have made good faith efforts to resolve it.
4. The presiding judge will determine whether to handle the matter or refer the matter to the duty magistrate judge (DMJ) for resolution.
5. If the dispute is referred to the DMJ, the DMJ will resolve the matter by an oral ruling memorialized as a paperless order on the docket or a short letter ruling. The DMJ may extend the discovery deadline if such an extension will resolve the dispute. If the DMJ determines that the dispute does not warrant emergency resolution, the DMJ will return the dispute to the presiding judge for resolution.

Please note this procedure is only to be followed in true emergencies and only after good faith efforts have been made by counsel to resolve the dispute without court involvement. Counsel or parties who abuse this procedure may be subject to appropriate sanctions.” [emphasis added].

^[1] In addition to encouraging compliance, the Court’s form discovery cites to the ESI Principles. See Appendix D to the Local Rules.

^[2] For more information on cooperation, see Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation, Maker’s Mark: What Happens When Neither Party Cooperates?, and, M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), Chap. 14-15. 

^[3] For an innovative example of proportionality in the District of Maryland, see Use of Phased Discovery to Achieve Proportionality.

^[4] For more information on preservation letters, see Don’t Be Too Nice When You Send a Preservation Notice and The Perils of a Misfocused Preservation Letter.

^[5] For more information on Rule 26(f) conferences see “The Checklist Manifesto” and the Fed.R.Civ.P. 26(f) Conference.

^[6] For more information on discoverability regarding legal holds, see, e.g., Discovery on Discovery – Steps Taken to Produce Documents, Discovery of Steps Taken to Implement a Litigation Hold is Permitted and Are Litigation Hold Notices Discoverable?

^[7] The “Questions and Answers” pages of the ESI Principles address a number of other topics.