Federal District Court for the District of Delaware issues new e-discovery default rules

The Federal District Court for the District of Delaware on December 8, 2011 promulgated new default rules regarding e-discovery, including access to source code.  Law Technology News summarizes the new rules (and their predecessors) here.  The new default rules are generally geared to alleviate the burden of production:

• No duty to preserve ephemera. Thirteen types of ESI need not be preserved absent a showing of good cause, including RAM, web access files (e.g., cookies, temporary internet files, browser cache data), frequently-updated metadata fields (such as "last updated"), voicemails, non-archived instant messages, and cellphone call logs.
• Privilege log streamlining.  Parties must negotiate regarding alternatives to document-by-document logs.  No logging is required for information generated after the filing of the complaint.
• Preservation compliance exclusion.  Preservation activities need not be disclosed.
• Waiver and return of privileged matter.  The parties must negotiate a non-waiver order under Rule 502; pending such an order, privileged material must be returned immediately if its production was facially inadvertent.
• Custodian disclosure.  The parties are required to identify, in order, the ten custodians and non-custodial (i.e., non-human) sources most likely to have discoverable information.
• On-site inspection is presumptively disallowed.
• Disclosure of search-term methodology.  A party that uses search terms to locate potentially responsive ESI must disclose those terms to the requesting party.  A requesting party may then request up to ten additional "focused" search terms.
• Production.  Production must be in text-searchable image files and must preserve the underlying metadata, including revision history.  Native files should not be produced except where not readily convertible to image format, i.e. Excel files.  Metadata is limited to basic fields relating to authorship, distribution, creation and modification times, and family membership.

The burden-alleviating nature of the default rules may, among other things, serve as a counterpoise to the asymmetric infliction of discovery costs on large corporate defendants by plaintiffs with few if any production burdens of their own.  The search-term disclosure requirement weighs in favor of automated classification and ranking, such as that provided by Backstop, for clients reluctant to share details of the discovery process with their adversaries.  If any metadata must be produced, there seems little if any reason to limit production of all metadata fields, as I noted in my discussion of a similar provision in the new Federal Circuit model e-discovery order for patent cases.

With respect to code, the source-code provider must supply a single electronic copy of source or executable code on a stand-alone computer located with an independent escrow agent, the cost to be shared between the parties.  Access to the computer is limited to two outside counsel and two experts from the requesting party, all of whom the court must pre-approve. The code provider may not access to the computer once it is set up.  The requesting party cannot copy or print the source code without permission.  This default rule should help assuage some fears regarding code theft.