E-Discovery Update: Revisiting ESI Agreements and Court Orders
Under the Federal Rules of Civil Procedure (and in an increasing
number of state courts), litigants must meet early in a dispute
- generally within the first 60-90 days of a case—to discuss the
scope of discovery and to hopefully reach agreement on how best
to proceed with the discovery of potentially relevant
electronically stored information (“ESI”). Results of this meet
and confer session are formalized in a court order following a
Scheduling Conference. What happens, though, when fundamental
assumptions used to reach agreement at that early stage in the
case turn out to be incorrect?  Recovering from discovery
disclosure errors is much trickier than talking through
potential issues before they arise. Finding an equitable
solution involves, at a minimum, weighing a number of factors.
First, of course, who made the error—the requesting party or the
producing one? Second, what type of due diligence was performed
by the erroneous party prior to m