Chapter 3 - EXHIBIT 3A • GUIDELINES ADDRESSING THE DISCOVERY OF ELECTRONICALLY STORED INFORMATION

• Jurisdiction: Colorado

EXHIBIT 3A • GUIDELINES ADDRESSING THE DISCOVERY OF ELECTRONICALLY STORED INFORMATION

Monday, September 01, 2014

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO GUIDELINES ADDRESSING THE DISCOVERY OF ELECTRONICALLY STORED INFORMATION PREFACE

The purpose of these Guidelines is to address concerns that have been raised by attorneys practicing in the United States District Court for the District of Colorado with respect to discovery of electronically stored information ("ESF'). The phrase "electronic discovery" or "e-discovery" encompasses the process of identifying, preserving, collecting, reviewing, and producing ESI in connection with pending or reasonably anticipated litigation.

E-discovery is universal. "From the largest corporations to the smallest families, people are using computers to cut costs, improve production, enhance communication, store countless data and improve capabilities in every aspect of human and technological development." Bills v. Kennecott Corp., 105 F.R.D. 459, 462 (D. Utah 1985). "[B]ecause we live in a society which emphasizes both computer technology and litigation, the mix of computers and lawsuits is ever increasing." Id.

The prevalence of ESI and its associated impact on the civil litigation process have become all too apparent. "The discovery of [ESI] has become vital in most civil litigation - virtually all business information and much private information can be found only in ESI. At the same time, the costs of gathering, reviewing, and producing ESI have reached staggering proportions." Hon. James C. Francis IV, Foreword to Anne Kershaw and Joe Howie, Judges' Guide to Cost Effective E-Discovery, at i (2010).

In response to the complexities presented by electronic discovery, the United States District Court for the District of Colorado convened an Electronic Discovery Committee in 2012 to survey attorneys practicing in the District to determine whether guidelines or local rules would be beneficial.

Judge William J. Martínez chaired the Committee, which included Magistrate Judge Craig B. Shaffer and a number of highly experienced attorneys representing a cross-section of practices, including governmental counsel, corporate in-house counsel, large firm and solo practitioners, and plaintiff and defense attorneys, each with expertise litigating matters involving electronic discovery. In the fall of 2012, the Committee worked with the Corona Institute to develop, conduct, and analyze a comprehensive survey of practitioners in the District concerning their experiences with ESI. Nearly 2,000 responses were received.

The survey results confirmed that electronic discovery is a concern for lawyers practicing in our District, as it is in many other jurisdictions. An overwhelming majority of respondents, 90.8%, requested that the court assist practitioners in our District with e-discovery by adopting some form of procedures or rules for ESI-intensive cases. Specifically, 43.8% of respondents requested guidelines to assist counsel, 34.6% requested a model order that would mandate procedures or required topics of conferral, and 12.4% requested binding local rules.

Accordingly, the Committee appointed a Sub-Committee to draft proposed Guidelines for consideration and review by the full Committee. The Sub-Committee, chaired by Joy Woller, worked diligently over the course of a year to analyze the survey results and orders, rules, and other pilot projects from around the country concerning e-discovery. The resulting Guidelines reflect exhaustive analysis and rigorous debate and compromise, undertaken in the spirit of providing constructive and even-handed guidance for attorneys in all types of practices.

For assistance in understanding and implementing these Guidelines, counsel and unrepresented parties are encouraged to consult the reference materials identified throughout and at the end of these Guidelines. References to counsel below also include and apply to unrepresented parties.

Electronic Discovery Guidelines Committee Roster

Judge William Martínez

Magistrate Judge Craig Shaffer

John Chanin
Lindquist & Vennum LLP

Stanton Dodge
EVP and General Counsel
DISH Network L.L.C.

Rita Kittle
Supervisory Trial Attorney
United States Equal Employment Opportunity Commission

Lino S. Lipinsky de Orlov
McKenna Long & Aldridge LLP

Kimberlie Ryan
Ryan Law Firm, LLC

Joy Woller
Lewis Roca Rothgerber LLP

Drafting Sub-Committee

Chair, Joy Woller
Members: Stanton Dodge, Rita Kittle, Kimberlie Ryan

GUIDELINE 1 PARTIES AND THEIR COUNSEL SHARE RESPONSIBILITY FOR SECURING THE JUST, SPEEDY, AND INEXPENSIVE DETERMINATION OF EVERY ACTION AND PROCEEDING.

Commentary 1.1: Scope of E-Discovery Guidelines and Obligations of Counsel.

These Guidelines are intended to facilitate compliance with the Federal Rules of Civil Procedure and, more specifically, to assist the court, counsel, and parties in securing the objectives underlying Fed. R. Civ. P. 1. In the case of any conflict between these Guidelines and either the Federal Rules of Civil Procedure or the Local Rules of the United States District Court for the District of Colorado, the Federal and Local Rules shall control. Counsel should be familiar with these Guidelines and the attached Meet-and-Confer Checklist for the Rule 26(f) Meet-and-Confer process regarding ESI. Finally, counsel and parties must adhere to the Practice Standards pertaining to discovery in general, and to e-discovery in particular, adopted by the judicial officer(s) presiding over the action.

Commentary 1.2: Counsel Should Be Aware of the Benefits and Risks Associated with Relevant Technologies in the Civil Litigation Context.

The constantly changing nature of information management and technology places increased responsibility on counsel to stay abreast of the benefits and risks associated with those technologies in the civil litigation context. Although counsel are not expected to be technological experts, they must be familiar with the Federal Rules of Civil Procedure, Federal Rule of Evidence 502, and the case law interpreting those Rules, particularly as they apply to or govern the discovery of ESI.¹

Commentary 1.3: Cooperation.

These Guidelines are premised on the belief that an attorney's zealous representation of a client is not compromised by conducting discovery in a cooperative manner. Constructive, mutually beneficial engagement with opposing counsel has the potential to reduce the costs of litigation and avoid delay, thereby facilitating the just, speedy, and inexpensive determination of cases. Cooperation in reasonably limiting ESI discovery requests, and in reasonably responding to those requests, may reduce...