District Court Jumps in Front of E-Discovery: Maryland Protocol Cooler than the Matrix

A joint bar-court committee, headed up by the obviously talented Magistrate Judge Paul W. Grimm, in the District of Maryland has produced a Suggested Protocol for Discovery of Electronically Stored Information (ESI), which some have referred to in short hand as the Maryland Protocol. The Maryland protocol is available as a .pdf download here.

While the Maryland Protocol apparently has not been formally adopted by Maryland courts, it presents a very complete and technologically sound blueprint for attorneys and courts alike in suggesting parameters for dealing with the 2006 FRCP amendments. Indeed, the introductory section makes clear that the suggested protocol is not a binding document, nor is it necessarily final or complete. From the outset, the tone of the protocol suggests that it is best suited for "run of the mill" ESI cases, and does so without some of the wide-eyed, breathless predictions that even occasionally creep into this blog.

The scope of the protocol is specifically restricted to the "ESI provisions" of the FRCP. The first phrase or term defined by the protocol is metadata ("Meta-Data" in the protocol), and stretches far beyond the trite description of "data about data." Instead, the protocol describes metadata as "(i) information embedded in a Native File that is not ordinarily viewable or printable from the application that generated, edited, or modified such Native File; and (ii) information generated automatically by the operation of a computer or other information technology system when a Native File is created , modified, transmitted, deleted or otherwise manipulated by a user of such system. Meta-Data is a subset of ESI." In a special section designated solely for metadata, the protocol also distinguishes between System Meta Data, Substantive Meta Data and Embedded Meta Data.

The protocol goes on to designate Static Images as the cornerstone for the form and format of ESI discovery. In essence, the protocol establishes up front that the form of production of ESI (unless the parties agree otherwise or unless the court so orders) that ESI should be produced as Static Images in the format of either a Tagged Image File Format (.tif files) or Portable Document Format (.pdf files).

Properly, the first substantive area addressed by the protocol is the Conference of Parties (see Rules 16 and 26). The protocol suggests, against the common current, that the parties might even indicate to the court that no ESI discovery is desired. One interesting suggestion, though reasonably framed, is that on-site ESI inspections be conducted by agreement of the parties, or "in circumstances where good cause and specific need have been demonstrated...". The protocol also allows for the possibility, as many cases have, that on-site inspections be conducted by independent, third party experts.

Another of the protocol home runs is the gentle reminder that "prior planning and preparation is essential for a Conference of Parties...". If this concept isn't quite clear, scroll down and read the three Blue Light Special posts. This planning includes the exchange of information prior to the meet and confer. One of the pleasing suggestions relates to the participation of an "ESI coordinator". An ESI Coordinator, by the way, is one parties' tech guru (not the technical definition within the protocol by the way). The protocol indicates that where one party requests that the other parties' ESI coordinator attend the meet and confer, and the other party agrees, the requesting party needs to commit its justifications for requesting the coordinator to writing. If the court ultimately decides that the meet and confer was unproductive, and was unproductive in part because of the absence of the requested ESI coordinator, that fact may be considered in future sanctions proceedings.

The protocol also addresses such matters as redaction, bates numbering and other more pragmatic concerns that often get overlooked.

The real victory of the Maryland Protocol is the gentle, yet thorough, guiding hand of the "technical consultants" who were involved in developing the protocol. The protocol offers a basic "To Do" list of areas of inquiry and preparation for counsel in approaching ESI discovery. The technical aspects are addressed in a broad, plain language fashion. At the same time, very specific areas of concern are described in enough detail, or addressed within a context such that most attorneys will find significant value an understanding in the protocol.

The three part KMart posts on this blog are replete with examples of counsel not having the benefit of a protocol such as that suggested by the Maryland court. After reading the Maryland Protocol, wise counsel may never again approach ESI discovery in the same light again. Simply put, the Maryland Protocol should be a standard feature of any trial notebook.

Now if we could just find someone smart enough to generate an accompanying Bankruptcy ESI Protocol...!