In any case where emails between the parties will be discoverable, the parties should collect and jointly analyze the emails between them, before the initial scheduling conference, in order to agree on an efficient and proportional ediscovery plan and to attempt early resolution.
Judge Paul Grimm of the District of Maryland enforces an innovative and radically restrictive ediscovery protocol in some cases – a protocol that is based on the same considerations as the proposed amendments to FRCP Rule 26. Among other constraints, he limits Phase 1 discovery to “seek[ing] facts that . . . are likely to be admissible under the Federal Rules of Evidence and material to proof of claims and defenses raised in the pleadings.” Order at ¶ 2.a. (emphasis in original). For clarity, Judge Grimm states that this scope is narrower than the general standard of Rule 26(b)(1) (i.e., “relevant” and “reasonably calculated to lead to the discovery of admissible evidence”). Id.
Under Judge Grimm’s stringent protocol, any party seeking Phase 2 discovery, which may extend to matter “reasonably calculated,” must show proportionality and why that party should not bear the cost of the additional discovery. Order at ¶ 2.b.
If you’re before Judge Grimm or any of the burgeoning number of judges who are similarly inclined, and in any event after the proposed FRCP amendments become law, you’d better demonstrate, as early as possible, that you and your opposing counsel are cooperating to get the job done efficiently. Also, of course, you should be able to demonstrate as much progress toward resolution as you can. See Order at ¶ 3. A great way to do that is to show up for the initial scheduling conference with some core ediscovery already completed and a detailed, proportionate, highly efficient ediscovery plan based on that ediscovery.
In many cases, the best way to do so is to cooperatively collect and analyze all of the email between the parties. What follows is a short explanation of why and a discussion draft agreement demonstrating how.
Email between the parties is in the sweet spot of ediscovery. Any objections to its discoverability are moot. It’s usually pretty rich in probative, admissible information. It’s also fast, cheap, and easy to collect and produce. Finally, because email contains pre-coded data fields, it’s easy to quickly distill the information in that email for counsel’s hasty ingestion and analysis.
Although the individual authors and recipients of those emails may collectively know everything that’s in them, none of them knows everything, and their counsel initially know almost nothing. Moreover, the individual authors and recipients are probably unaware of many of the legal consequences of what they wrote or read. Indeed, subjecting the universe of those emails to counsel’s joint scrutiny will be the first panoramic view anybody’s ever had of the controversy.
In appropriate cases, mail between the parties can contain a bounty of highly probative information. Perhaps most importantly, it often includes what each party wanted to have “on record” in the event of a dispute. It also lays out what was at issue between the parties and when, and so it’s a sound basis for a timeline. It reveals much about the key players, their roles, their responsibilities, and their relationships. It’s a great basis for a first-pass test of the factual allegations in the pleadings. It also contains the key phrases and concepts that counsel will need to understand going forward.
It’s hard to imagine any substantial privilege or confidentiality objection as between the parties, because any such objection would generally be precluded by the fact that the sender sent the email. There’s no valid burden objection because the collection process is inexpensive, easy, and fast. Each party stores its emails in discrete, easily identified email repositories. Those repositories are designed and optimized to allow for the extraction of emails by particular senders and recipients. The authenticity of most of the emails can be simply demonstrated by a deduplication protocol. Any remaining potential objections can be resolved or preserved by a simple agreement.
The discussion draft agreement below provides some specifics about how early review of email between the parties can allow counsel to use concrete, case-specific documents to negotiate the scope of ediscovery; to test and refine various searches, search methods, and search strategies; and to try to reach agreement on some seed documents for predictive coding.
Agreement for the Early Exchange of Certain Email
1. Within one week from the date of this Agreement, the parties will exchange copies of all email between them that are in their possession, custody, or control [optional: for the period _________________].
2. For purposes of this Agreement, email between the parties will include emails between counsel and other agents of the parties. [Optional: Collection shall be limited to the following custodians: _______.]
3. The fact that any such email is only obtainable from backup or offline storage [will/will not not] relieve the party from its obligation to produce it.
4. All emails produced pursuant to this Agreement will be produced in the form of complete individual “.eml” files. Each such file will contain all data originally received, including but not limited to all header information and attachments, in a form that complies with the specifications in RFC 5322. [Optional: For each such file, the producing party will also retain all metadata about the email that was not contained within the original transmission itself that is available from the email repository system.]
5. Any exchange of information pursuant to this Agreement will be without waiver of any objection, including but not limited to discoverability, admissibility, or confidentiality. Nothing in this Agreement will relieve either party of any confidentiality or non-disclosure obligation.
6. Within two weeks after the date of this agreement, the parties will each create and exchange the following in writing:
a. a preliminary, non-binding list of which emails the listing party asserts support its position and, for each such email, the particular assertion that it purportedly supports;
b. a preliminary, non-binding list of which emails the listing party asserts do or do not contain any information that consists of or could lead to any admissible evidence;
c. a list of all abbreviations, acronyms, words, and phrases in the emails for which definitions or clarifications are sought;
d. a list of all senders, addressees, ccs, or persons or entities named in the emails about whom more information is sought, and, for each, the nature of that information;
e. a list of preliminarily proposed Boolean and concept searches and, for each, the issue or subject to which it applies;
f. a preliminary list of any emails deemed to be good examples of documents that contain information that is discoverable in the litigation, and, for each such email, the applicable issue or subject;
g. identification of any email that a party asserts is not authentic; and
h. any other questions or assertions relating to anything about any such email.
7. Within three weeks after the date of this agreement, the parties will provide each other with the information sought in ¶¶ 6.b., 6.c., and 6.h., above, and any assertions or questions about anything in the list that will facilitate resolution of the dispute or planning for further discovery.
8. Within two business days after the exchange set forth in Paragraph 7, counsel for the parties will meet in person to discuss any potentially dispositive issues that could be resolved with minimal discovery, to compose an appropriate joint discovery plan, to discuss the possibility of early settlement, and to address any other matters relating to the initial scheduling conference.
9. All communications pursuant to this Agreement will be subject to the Ediscovery Privilege Order previously entered in this action.