Stipulation Regarding Computerized Records Discovery

The parties stipulate as follows:
The following stipulation suggests ground rules for the conduct of electronic discovery in general conformance with the Federal Rules of Civil Procedure. However, this information is provided as a starting point only.

I. Initial Disclosures

A. The existence, identity, and nature of computerized and other electronic records shall be disclosed in each party's initial disclosures made pursuant to Civil Rule 26 in the same fashion as all other records.

B. If not already done, each party shall immediately make and safely preserve two separate and verified complete archival backups of all electronic and computerized records that might be pertinent in any way to any matters foreseeably arising in connection with the subject matters of this litigation. Each party shall take all appropriate safeguards to preserve the evidence and prevent intentional or inadvertent alteration or spoliation of computerized and other electronic records.

C. The parties shall disclose without limitation at least the following regarding such records:

1. Each current and prior actual file name(s) of each record containing relevant information, and the names, addresses, and job descriptions of each person creating, maintaining, compiling, or otherwise having responsibility for such record and of the information content of it. The responding party shall describe with particularity the pertinent information contained in each such record.

2. The location of every copy of such records including, without limitation, primary and standby network file servers or other central computers, specific desktop workstations containing copies and prior and later versions of such records, and each backup set containing copies and various versions of such records.

3. The backup method whereby copies of such records are made and preserved in the ordinary course of business, including specific identification of:
a. The names, addresses, and job descriptions of each person responsible for making and preserving any backups;
b. brand, model, and version of the backup devices and backup programs used;
c. the schedule for the making, preserving, retaining, reusing, and destroying of all backups, and whether such backups have, in fact, been reused or destroyed;
d. the operating system, including version number of each computer where any identified record is stored and/or backed up.

Each party shall immediately make and safely preserve two separate and verified complete archival backups

4. The brand name and version number of each application program used in the recording, searching, manipulating and storing of data in any of the records set forth above. Where commercially available programs are used, the respondent shall provide the name and address of the program's publisher. Where custom application programs are used to record and store information, the respondent shall describe the program's functions and the hardware and operating system requirements for its ordinary operation.

5. During initial disclosures, each party shall provide to the other verified copies of each and every pertinent computerized record and other electronic document in its native electronic file format and in a mutually convenient computer media format usable by the receiving party. Each party shall provide the other party with usable temporary copies of each application program pertaining to any electronic record in a mutually convenient computer media format usable by the receiving party. The provided electronic records shall be further described and identified as to the date when any information was last recorded, when the verified copy of each record was made, and the immediate source of the record, (for example, whether it was made from a verified backup copy produced pursuant to Section I (B) above).

6. It shall be the responsibility of each party to check any native format computer and electronic records and programs provided to the other party for computer viruses or other comparable dangers using an up-to-date antivirus program of modern design comparable or better in protection to the latest version of Dr. Solomon's or McAfee. The receiving party shall have a comparable responsibility.

7. Where feasible, image format backups shall be provided rather than file-by-file backups.

8. Expert witnesses shall retain complete copies of each and every version of all electronic data, computational spreadsheets and models, drafts, and any other evidences of their initial calculations, assumptions, bases, conclusions, scientific models, and computations.

II. Rule 35 Inspections and Entry Upon Premises

Onsite and Rule 35 inspections shall comply with both the general provisions of Rules 34 and 35 and also the following provisions.

A. Either party may request to review computerized and electronic records at the responding party's site and under normal operational conditions. Each party shall be allowed two such visits, an initial inspection, and a follow-up. Each party will render all reasonable cooperation to the other party and shall seek to avoid unduly burdening the other while at the same time concluding the discovery operations outlined in the scope of discovery stipulation. The scope of discovery stipulation shall be based on information received from each party during initial disclosures along with such other information as each discovering party reasonably believes to be relevant and within the possession or control of responding party.

B. Discovering party shall be entitled to bring experts to direct and observe discovery as he or she deems advisable. Responding party shall also be entitled to have experts on the premises as he or she deems advisable.

C. Responding party shall make available, at the time of inspection and entry, all personnel responsible for the operation, maintenance, and use of the various computer systems. Such respondent's personnel shall in fact operate the system in response to the directives of the discovering party. The discovering party's personnel shall not themselves operate or manipulate the system. Responding party's personnel shall have the responsibility to:

1. Operate such programs as requested by the discovering party and install compatible computer equipment, tape backups, hard disks, etc., provided by the discovering party for the purpose of making image and backup copies of electronic data storage media and any data or other programs and information contained within them.

Either party may request to review computerized and electronic records at the responding party's site and under normal operational conditions

2. Operate such compatible drive image and tape backup programs as supplied by the discovering party for the purpose of copying data and electronic data storage media, warning of any potential danger to the integrity of the computer systems and the data contained therein.

3. Be solely responsible for making any desirable internal backups for assuring the safety and integrity of any computer system or media to be copied, backed up, or examined.

4. Mount, recall, and use such existing tape or other backups of prior data, and recover deleted or altered files, as requested by the discovering party.

5. Search files, display data, make printouts of records and data, and make verified native electronic format copies of data.

6. Operate any appropriate and safe third-party search, retrieval, and data discovery programs requested by the discovering party.

7. Generally do all other operations requested by the discovering party that will not damage the responding party's computer system or data.

8. Warn the discovering party of any potential dangers inherent in any of his or her requests and, where appropriate and not obstructive, refrain from engaging in any action that might damage the responding party's data or computer system as set forth in section I below.

D. All persons and experts used by each party shall enter into appropriate nondisclosure agreements. No person or expert shall be used by either party where there is a conflict of interest with regard to such person's employment by third parties.

E. Onsite inspections shall be conducted at such time as will not unreasonably burden the responding party's business operations.

F. Initially, each party shall separately bear the cost of making or responding to discovery, including employee and expert time, but this provision shall not be deemed as affecting or prejudicing the award of costs by the court at the conclusion of this case in accordance with prevailing rules of court.

G. Discovering party shall be afforded such time as is reasonably necessary to conduct discovery but shall not be entitled to oppressive or burdensome discovery times and operations. It is anticipated that approximately _____ hours is a prima facie reasonable time for the initial onsite inspection and computer search and manipulation. Because the factors affecting any follow-up onsite visit are not known at this time, no time limit is currently provided but such times shall be reasonable under the circumstances and neither unduly restrictive nor burdensome.

H. Discovering party shall be entitled to bring appropriate specialized search and data-recovery programs, and responding party shall run such programs on the inspected computer systems at the request of discovering party so long as such programs will not damage any system or record, in which case responding party shall make a copy of the target computer system and install such copy on a comparable but noncritical system and then run such programs.

I. During all phases of the discovery process, responding party shall have the responsibility of protecting its own computer system and data, making and preserving complete system backups, and ensuring the safety of its own computer systems from any damage, data destruction, or other difficulties during discovery. Responding party shall promptly object to any dangerous or damaging requests of discovering party, may refuse to implement such requests, and shall specify the grounds for such objection and refusal to implement such requests.

J. Each party shall take all prudent and reasonable steps to prevent the introduction of any virus, worm, Trojan Horse, or other like and similar programs into the computer system of the other party.

K. The discovering party shall not appropriate for its personal gain, or otherwise disclose except in the course of this litigation, any proprietary information or data regarding the design, implementation, and use of the responding party's computer system, applications, and data. A "Chinese Wall" between the discovering party's own internal information services personnel and the personnel involved in this discovery shall be a sufficient defense against any later allegation of unauthorized appropriation and use of apparently similar aspects of the responding party's proprietary system design, implementation, and applications. FA

Meet-and-Confer Checklist

Rule 26(f) of the new Federal Rules of Civil Procedure sets forth recommended guidelines for a "meet and confer" dialogue concerning electronic evidence. The rule specifically recommends that parties discuss issues in relation to:

∅ The disclosure or discovery of electronically stored information, including the form in which it should be produced;

∅ Whether the parties can agree to production on terms that protect against privilege waiver; and

∅ The preservation of discoverable information.

Parties also should discuss:

∅ The nature and volume of material to be produced, including data sources, data types, date and timeframes, and stipulations as to what constitutes duplicate or near duplicate data; and

∅ The drafting of mutually agreed upon definitions of terms to be used throughout the discovery process.

Source: Laura Morgan, Charlottesville, Virginia.

Joseph Kashi is an attorney and litigator in Soldotna, Alaska, who is active in the Law Practice Management Section and a technology editor for Law Practice Today. He has written regularly on legal technology for the ABA Law Practice Management Section, Law Office Computing magazine, and other publications since 1990. This stipulation first appeared in Lit. App. (1996) ABA LPM.

Published in Family Advocate, Volume 29, No. 3, Winter 2007. © 2007 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.