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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:
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.
Each party shall immediately make and safely preserve two separate and verified complete archival backups
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:
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.
Either party may request to review computerized and electronic records at the responding party's site and under normal operational conditions
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.
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:
Parties also should discuss:
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.