The U.S. Southern District of Florida has made amendments to its local rules, effective December 1, 2017. One of these amendments includes changes to Rule 16.1(b)(2)(k) regarding what the parties must include in their pretrial scheduling reports when it comes to electronic discovery. Pursuant to the amended local rules, during the parties Rule 26(f) conference, they must now discuss, and include in their report, any issues about:
(i) disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;
(ii) claims of privilege or of protection as trial-preparation materials, including -- if the parties agree on a procedure to assert those claims after production -- whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502; and
(iii) when the parties have agreed to use the ESI Checklist available on the Court’s website, matters enumerated on the ESI Checklist.
The ESI checklist available on the Court’s website includes matters such as: preservation, Liaison (identity of each party’s E-Discovery liaison, who will be knowledgeable about and responsible for each party’s ESI), informal discovery about the location and types of systems where ESI may be stored, issues regarding the likely benefit of the proposed discovery and the estimated costs, search methods for ESI, whether it is appropriate to conduct ESI in phases, the format of ESI for production, and any production of privileged or work product information will be handled.
Attorneys must think carefully about these ESI issues before attending any pretrial scheduling conference, as the court will turn to these pretrial conference reports to guide its decision in any future conflict regarding ESI that may arise in a case.