Managing Discovery of Electronic

Information: A Pocket Guide for Judges

Second Edition

Barbara J. Rothstein, Ronald J. Hedges, and 

Elizabeth C. Wiggins

Federal Judicial Center

2012

This Federal Judicial Center publication was undertaken in furtherance of 

the Center’s statutory mission to develop educational materials for the judicial branch. While the Center regards the content as responsible and valuable, 

this publication does not reflect policy or recommendations of the Board of 

the Federal Judicial Center.
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Contents

Preface and introduction to the second edition 1

What is electronically stored information (ESI) and how does it differ from 

conventional paper-based information? 2

What is the judge’s role in the discovery of ESI? 4

How does a judge promote early consideration of ESI discovery issues? 6

What matters should be discussed at the Rule 26(f) conference? 7

What preparations for the Rule 26(f) conference should be required? 8

What continuing consultation between parties should be required? 10

What matters should be covered during the Rule 16 conferences and 

included in Rule 16(b) scheduling orders? 11

What disclosures of ESI are required under Rule 26(a)(1)? 12

How does a judge limit the scope of ESI discovery to that proportional to 

the needs of the case? 13

What type of information is “not reasonably accessible”? 15

When does good cause exist to allow the discovery of “not reasonably 

accessible” information? 16

What factors are relevant to allocating costs? 17

How may Rule 26(g) sanctions be used to promote cooperation and 

proportionality in ESI discovery? 20

What principles apply to discovery from nonparties under Rule 45? 21

In what form or forms should ESI be produced? 22

How should privilege and waiver issues be handled? 24

What are “clawback” and “quick peek” agreements? 24

How can a court shield parties from waiving a privilege through 

inadvertent disclosure? 25

How should a court test assertions of privilege? 25

How is Federal Rule of Evidence 502 used to reduce cost and delay? 26

Litigation holds: How can the court promote the parties’ reasonable efforts 

to preserve ESI? 27

What are the standards for finding spoliation and the criteria for imposing 

sanctions? 30

Where can a judge find additional information and guidance? 31

Conclusion 34

Glossary 35
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Managing Discovery of Electronic Information (2d ed.)

Preface and introduction to the second edition

This second edition of the pocket guide on the discovery of electronically stored information (ESI) follows the first—and the related 2006 

amendments to the Federal Rules—by more than five years. These 

intervening years have seen an explosion of civil case law on ESI. This 

case law interprets the 2006 amendments and sets forth practices that 

have proved helpful to the courts, lawyers, and litigants in the discovery and evidentiary use of ESI. In addition, with the adoption of Federal Rule of Evidence 502 in September 2008, the federal courts now 

have a common framework for analyzing privilege waiver issues and 

an effective way to reduce costs and delays that result from exhaustive 

preproduction review driven by a fear of wavier through inadvertent 

disclosure.

Electronic information is ubiquitous. Information about our private and public lives, and information on the activities of all private 

and public entities are increasingly intermingled, interconnected, and 

stored on electronic media. The phrase “electronic media” has itself 

expanded to include various devices on which electronic information 

is created and stored, such as personal digital assistants (PDAs) and 

“smart phones,” and the number and kinds of devices continue to 

grow and change. This expansion and the continuing changes in information technology have increased the complexities and costs of 

ESI discovery. As those complexities and costs grow, so does the need 

for effective discovery management. Judges must ensure that ESI discovery is planned properly, managed effectively, and supervised closely to avoid disputes, reduce costs and delays, and focus the case on the 

merits. 

This pocket guide has been reorganized into a question and answer format, which we hope judges will find useful in meeting the 

challenges presented by the discovery of ESI. Its fundamental messages, however, are unchanged: Judges should actively manage cases 

that involve ESI through early intervention and sustained supervision. Judges should raise issues for the parties to consider rather than 

wait for the issues to be presented as full-blown disputes. They should 

use the many tools available to them—case-management conferences 

and orders, limits on discovery, tiered or phased discovery, sampling, 

cost shifting, and, if necessary, sanctions—to encourage cooperation 
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Managing Discovery of Electronic Information (2d ed.)

among opposing lawyers and to ensure that discovery is fair, reasonable, and proportional to each case. The particulars of case management, of course, depend on the extent the parties expect to rely on ESI 

in proving and defending their positions, the complexity of how ESI 

is created and stored, and other factors.

A note of appreciation goes to Judge Lee H. Rosenthal (S.D. Tex.), 

Ken Withers (The Sedona Conference), and John Rabiej (Center for 

Judicial Studies, Duke Law School) for their help in producing the 

first and second editions. In addition, Mukai S. Amoo, William P. Butterfield, Maura R. Grossman, Sherry B. Harris, Emery Lee, and Jeane 

A. Thomas provided valuable suggestions that improved this guide.

What is electronically stored information (ESI) and how does 

it differ from conventional paper-based information?

ESI currently includes e-mail messages, word processing files, web 

pages, and databases created and stored on computers, magnetic 

disks (such as computer hard drives), optical disks (such as DVDs 

and CDs), and flash memory (such as “thumb” or “flash” drives), and 

increasingly on “cloud” based servers hosted by third parties that are 

accessed through Internet connections. The technology changes rapidly, making a complete list impossible. Federal Rules of Civil Procedure 26 and 34, which went into effect on December 1, 2006, use the 

broad term “electronically stored information” to identify a distinct 

category of information that, along with “documents” and “things,” is 

subject to discovery rights and obligations.

ESI differs from conventional, paper-based information in several 

ways that affect discovery. The volume of ESI is almost always exponentially greater than that of paper information, and ESI may be located in multiple places that are widely dispersed. For example, draft 

and final versions of a single memorandum may be stored electronically in multiple places (e.g., on the computer hard drives of the document’s creator, reviewers, and recipients; on the company server; on 

laptops and home computers; on backup tapes; and on local network 

servers and third-party hosted servers). Market research has found 

that the average employee sends or receives more than 100 electronic 

messages per working day, which translates into more than 2,400,000 

messages a year for an organization of 100 employees.
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Managing Discovery of Electronic Information (2d ed.)

Although the possibility that paper documents or things could 

be damaged, altered, or destroyed has always been a concern, the dynamic and mutable nature of ESI presents new challenges. Computer 

systems automatically recycle and reuse memory space, altering potentially relevant information without any specific direction from, or 

even the knowledge of, the user. Merely opening a digital file changes 

information about that file, and e-mail messages may be automatically deleted after a certain period unless steps are taken to avoid it.

Some aspects of ESI have no counterpart in print media, metadata being the most obvious example.1

 Metadata, which most computer users never see, provide information about an electronic file, such 

as the date it was created, its author, 

when and by whom it was edited, what 

edits were made, and, in the case of email, the history of its transmission. 

Another example is those computerbased transactions that do not result 

in printable text-based documents, 

but instead are represented in specially 

formatted databases. Even less complex ESI may be incomprehensible 

and unusable when separated from the 

system that created it. For example, financial projections developed using 

spreadsheet software may be useless if produced in portable document format (PDF) rather than in the format of the spreadsheet software because embedded information, such as computational formulas, is not retained in the PDF file.

Unlike paper documents, ESI can be produced in different forms, 

such as PDF and TIFF (tagged image file format). Some forms may 

not be compatible with the requesting party’s computer system, may 

hide metadata and embedded data, and may not be as easy to search 

as the requesting party would like. If ESI was created on a system or 

with a program that is no longer used, either because it is obsolete or 

1. See the terms metadata, embedded data, and systems data in the Glossary to 

this guide.

How ESI differs from paper 

information

Volume

Variety of sources

Dynamic quality and difficulty 

of preservation 

Hidden information: metadata 

and embedded data

Varieties of forms for production

Dependence on the system that 

created it

Deleting doesn’t necessarily 

delete it
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Managing Discovery of Electronic Information (2d ed.)

because the party does not have access to it, the information may be 

difficult to retrieve in a form that is useful.

Deleting an electronic document does not necessarily get rid of 

it, as throwing away or shredding a paper document would. An electronic document may be recovered from the hard drive or server, to 

the extent it has not been overwritten, and may be available on the 

computers of other people or on archival media or backup tapes used 

for disaster recovery purposes. The costs and efforts required to retrieve and restore such information, however, can be very high and 

extensive.

These and other differences between ESI and paper information 

have important implications for discovery. For example, the dynamic 

nature of ESI makes it vital that a litigant or potential litigant institute 

a “litigation hold” to preserve information that may be discoverable, 

whenever litigation is reasonably anticipated—and that can be well 

before a complaint is filed or an answer is served. The volume and 

multiple sources of ESI increase costs and burdens, which in turn leads 

to more disputes about whether discovery is relevant or proportional 

to the needs of the case. A review to identify and segregate privileged 

information is more difficult, increasing the likelihood of inadvertent 

production even when the producing party has taken reasonable steps 

to avoid it. Because deleted or backup information may be “relevant” 

under the discovery rules, parties may request its production, even 

though restoring, retrieving, and producing it may require expensive 

and burdensome computer forensic work that is disproportionate to 

the reasonable discovery needs of the requesting party. The choice of 

the form of production was not an issue with paper discovery, but 

it can lead to disputes in ESI discovery. Judges should be alert to the 

ways in which these differences may affect the discovery issues and 

management needs in their cases.

What is the judge’s role in the discovery of ESI?

In the past decade, discovery involving word-processing documents, 

spreadsheets, e-mail, and other ESI has become common. Once seen 

primarily in large actions involving sophisticated entities, it is now 

seen in routine civil actions and increasingly in criminal actions. In 

many cases, ESI does not raise any issue. In some cases, ESI is con-
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Managing Discovery of Electronic Information (2d ed.)

verted to paper and is exchanged in the traditional manner, although 

this sacrifices searchability and portability, and is therefore used less 

and less frequently. In most cases, ESI is produced and exchanged in 

electronic form.

In some cases, particularly cases that are complex or contentious, 

or in which the volume of ESI subject to discovery is large, disputes 

may arise. Some of these disputes will be difficult, time-consuming, 

and costly to resolve. Disputes may arise as to the scope of discovery 

of ESI. Disputes may arise over the form in which ESI is to be produced when one party finds that ESI has been delivered in a form 

that is not readily usable. Disputes may arise over whether inadvertent 

production of ESI waived attorney–client privilege or work-product 

protection. The producing party may seek to shift costs to the requesting party. One side may accuse the other of spoliation because routine 

file-management practices remained in place after the litigation was 

reasonably anticipated or the complaint was filed, and relevant computer files were deleted. 

Judges can minimize such disputes by encouraging lawyers and 

parties to cooperate with one another and to identify, in the earliest 

stages of the litigation, potential problems in the discovery of ESI. The 

judge needs to work with the lawyers to ensure that planned discovery 

is reasonable and proportional to the needs of the case, and may need 

to intervene before misunderstandings lead to disputes and create significant cost and delay. When disputes do arise, it is often important 

to ensure that parties raise them quickly and that the judge decide 

them quickly, or the litigation will simply stop in its tracks. In short, 

discovery involving ESI may require more frequent and intensive judicial involvement than is required by conventional discovery.

In complex cases, these responsibilities are not easy undertakings. 

Like lawyers and litigants, judges have had to become familiar not 

only with the substantive issues of cases, but also with issues relating 

to how relevant electronic information is created and stored. Many 

district and magistrate judges have developed expertise in handling 

ESI discovery matters in recent years. If ESI issues are new to a judge 

or are complex, it may be useful for the judge to require parties to 

provide expert guidance on those issues. In some cases involving both 

high stakes and particularly contentious or difficult ESI discovery is-
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Managing Discovery of Electronic Information (2d ed.)

sues, judges have found it appropriate to seek the assistance of a special master or neutral expert.2

How does a judge promote early consideration of ESI 

discovery issues?

Exchanging information in electronic form has significant benefits. 

It can substantially reduce copying, transport, and storage costs; enable the requesting party to more easily review, organize, and manage 

the information; facilitate the use of computerized litigation support 

systems; and set the stage for using ESI as evidence during pretrial 

and trial proceedings. To ensure that these benefits are achieved and 

any problems associated with ESI are minimized, judges should encourage attorneys and parties to address ESI in the earliest stages of 

litigation.

All too often, attorneys view their obligation to “meet and confer” 

under Rule 26(f) as a perfunctory exercise. When ESI is involved in 

a case, judges should insist that a meaningful Rule 26(f) conference 

take place and that a meaningful discovery plan be submitted for use 

in the Rule 16 conference with the court. In addition to specifying 

topics to be considered at the Rule 26(f) conference and included in 

the discovery plan to be submitted to the court, judges can make clear 

that the attorneys need to engage in advance preparation. Judges can 

also make clear that they expect the parties to establish a process for 

continuing discussion on ESI discovery issues, beyond a single Rule 

26(f) conference. Judges can indicate to parties how to bring disputes 

before the court for efficient and prompt resolution. Any agreements 

the parties reach on how to protect against waiving attorney–client 

privilege or work-product protection by inadvertent production in 

discovery must be included in court orders to be effective as to third 

parties or in other cases (see related discussion infra pages 24–25). 

2. For example, the judge may appoint a neutral expert to help develop a discovery plan and supervise technical aspects of discovery, review documents claimed 

to be privileged or protected, or participate in an on-site inspection. See Manual for 

Complex Litigation, Fourth § 11.446 (Federal Judicial Center 2004) [hereinafter 

MCL 4th] and The Sedona Principles: Best Practices, Recommendations & Principles 

for Addressing Electronic Document Production (The Sedona Conference Working 

Group Series June 2007) at comment 10.c, available at https://thesedonaconference.

org/download-pub/81[hereinafter The Sedona Principles].
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Managing Discovery of Electronic Information (2d ed.)

Therefore, the court should encourage parties to discuss this topic 

and to ask the court to include such agreements in Rule 16(b) orders.

Early in the case, the court should communicate its expectations 

as to how discovery will proceed. Case-management orders entered 

soon after a case is filed, standing orders, court guidelines and protocols, and local rules are all vehicles for doing so. Samples of such 

documents are available on the Federal Judicial Center’s websites at 

http://cwn.fjc.dcn/fjconline/home.nsf/pages/196 and http://www.fjc.

gov/public/home.nsf/pages/196.

What matters should be discussed at the Rule 26(f) conference?

Rule 26(f) directs parties to discuss any issues relating to disclosure or 

discovery of ESI, including the form or forms in which it should be 

produced. The specific issues that require attention during the Rule 

26(f) conference depend on the specifics of the case and the extent 

and complexity of the contemplated discovery and ESI. To ensure that 

important matters are not overlooked, judges may want to provide a 

list of matters for the attorneys’ consideration. Such lists can be found 

in existing local rules, protocols, and orders. Most such lists include 

the following:

• whether there will be discovery of ESI at all;

• disclosures required under Federal Rule of Civil Procedure 

26(a)(1), if any, and their timing;

• what types or categories of discoverable information each 

party has in electronic form, and where and on what type of 

media that information is likely to be found; 

• the steps each party will take to preserve different types or categories of ESI;3

• the number and identity of “key players” who are knowledgeable about potentially relevant ESI and on whose servers or 

devices ESI is likely to be found;

• what methods will be efficient in identifying discoverable ESI 

(e.g., sampling, key word searches);

• the anticipated schedule for production;

3. Specific discussion topics related to the preservation of information are listed 

in the MCL 4th, supra note 2, § 40.25(2).
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Managing Discovery of Electronic Information (2d ed.)

• the form in which such information is ordinarily maintained 

and whether it will be produced in that form—usually known 

as “native format”—or in another form;

• the scope of discovery of different categories of ESI, such as 

e-mail messages;

• whether relevant information has been deleted, and if so, 

whether one or more parties believe deleted information 

needs to be restored and who will bear the cost of restoring it;

• whether any information is not “reasonably accessible,” the 

burdens and costs of retrieving that information, why it is 

needed, and any conditions that should be placed on its production, including who will bear the cost; and

• whether relevant information is in the possession of nonparties from whom discovery under Rule 45 will be required.

Rule 26(f) also directs parties to discuss issues relating to procedures for asserting attorney–client privilege or work-product protection and for protecting against waiver. If parties agree on such procedures, they should discuss whether to 

ask the court to include their agreement 

in an order (see related discussion infra

pages 24–25).

In preparation for the Rule 16 conference, parties should prepare a report 

describing points of agreement and 

matters in need of additional discussion 

or court intervention, and incorporate 

major points of agreement into a proposed order (see related discussion infra pages 11–12). If the parties disagree 

on any aspects of the discovery plan, 

they should prepare short statements of 

their respective positions for prompt resolution by the judge at the 

Rule 16 conference or shortly thereafter.

What preparations for the Rule 26(f) conference should be required?

For the Rule 26(f) conference to be effective, attorneys must be familiar with their clients’ information systems. This familiarity usuDiscussion topics for a 

Rule 26(f) conference: 

What ESI is available and 

where it resides

Preservation of information

Ease or difficulty and cost of 

producing information

Schedule of production

Form or forms of production

Agreements about attorney–

client privilege or workproduct protection
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Managing Discovery of Electronic Information (2d ed.)

ally requires understanding what information is available; how it may 

be altered or made unavailable by routine computer operations; and 

what is entailed in identifying, preserving, collecting, reviewing, and 

producing it. Attorneys need to identify those persons who are most 

knowledgeable about the client’s computer systems and meet with 

them well in advance of the Rule 26(f) conference; it may also be useful to have those persons present at the conference. Some courts put 

such requirements in local rules, guidelines, or protocols; other courts 

use case-management orders to tell the attorneys what to expect.

For example, the District of Maryland’s Suggested Protocol for Discovery of Electronically Stored Information provides detailed guidance 

to parties in preparing for the Rule 26(f) conference and anticipates 

that attorneys will

• discuss with their clients the facts underlying the litigation and 

advise their clients’ information systems personnel of the substantive principles governing the preservation of relevant or 

discoverable ESI while the lawsuit is pending; 

• become reasonably familiar with critical aspects of their clients’ ESI or identify another person who is and can meaningfully participate in the Rule 26(f) conference; 

• identify one or more information systems personnel to act 

as the ESI coordinator or coordinators and discuss ESI with 

them; and

• identify key persons in the lawsuit and determine their ESI 

practices.4

The District of Maryland and other districts also suggest or require that counsel exchange certain information before the Rule 26(f) 

conference. For example, the District of Delaware’s Default Standard 

for Discovery of Electronic Documents requires the parties to exchange 

the following:

• a list of the most likely custodians of relevant electronic materials, including their titles and a brief description of their 

responsibilities;

4. U.S. District Court for the District of Maryland, Suggested Protocol for Discovery of Electronically Stored Information, http://www.mdd.uscourts.gov/news/

news/ESIProtocol.pdf [hereinafter District of Maryland Protocol].
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Managing Discovery of Electronic Information (2d ed.)

• a list of each relevant electronic system that has been in place 

at all relevant times and a general description of each system, 

including the nature, scope, character, and organization of the 

system and the formats it employs;

• other pertinent information about their electronic documents 

and whether those documents are of limited accessibility (e.g., 

they were created or used by electronic media no longer in use, 

they are maintained in redundant electronic storage media, or 

their retrieval would involve substantial cost);

• the name of the individual responsible for the party’s electronic document retention policies, as well as a general description 

of the party’s electronic document retention policies;

• the name of the person who will serve as the party’s ESI discovery liaison, that is, the one individual who will receive and 

respond to all ESI discovery requests; and

• notice of any problems reasonably anticipated to arise in connection with ESI discovery. 5

What continuing consultation between parties should be required?

In contentious or complex cases in which extensive discovery of ESI 

can be anticipated, the usual sequence of a Rule 26(f) conference, followed by the submission of a discovery plan and a Rule 16 conference 

with the judge may not be sufficient. In such cases, the judge may, 

upon request of the parties or sua sponte, require the parties to hold a 

series of conferences dealing with different aspects of discovery.

Rule 26(f) should be viewed as an ongoing process for negotiating 

a discovery plan that can prevent discovery disputes or identify them 

early so that they can be brought to the court for resolution before 

they become more complicated and difficult. The Rule 26(f) conference should not be viewed solely as a procedural ticket to be punched 

before formal discovery can begin.

5. Paraphrase of Ad Hoc Committee for Electronic Discovery of the U.S. District Court for the District of Delaware, Default Standard for Discovery of Electronic Documents (“E-Discovery”), http://www.ded.uscourts.gov/sites/default/files/

Chambers/SLR/Misc/EDiscov.pdf [hereinafter District of Delaware Default Standard].
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Managing Discovery of Electronic Information (2d ed.)

What matters should be covered during Rule 16 conferences and 

included in Rule 16(b) scheduling orders? 

The Rule 16 conference with the judge and the resultant case-management and scheduling orders give the judge the best opportunity, 

early in the case, to work with the parties to ensure that ESI discovery 

is undertaken cooperatively and is reasonable and proportional to the 

needs of the case. The Rule 16 conference allows the judge to discuss 

and memorialize the agreements or shared understandings that parties have reached in their Rule 26(f) conference. The Rule 16 conference also allows the judge to identify any disputes and to resolve them 

early in the case. It is the judge’s opportunity to work with the lawyers 

to craft a case-management order that is tailored to the case and that 

limits the scope of discovery to what is reasonably proportional to the 

needs of that case.

It is usually most helpful for the judge to hold “live” Rule 16 

conferences with the attorneys present in court or in chambers. At 

a minimum, the judge should require the attorneys to participate by 

telephone or videoconference. Without the chance to talk with the 

attorneys, the judge may miss an important opportunity to uncover 

issues the attorneys have not identified or considered.

The court may require parties to come to the Rule 16 conference 

with a prepared Rule 26(f) report and a proposed scheduling order. 

Rule 16(b) provides that scheduling orders may include provisions for 

disclosure or discovery of ESI, and any agreements the parties reach 

for asserting claims of privilege or of protection as trial-preparation 

material after production. Of course, the order will also include other 

key provisions, including the deadlines to join other parties, amend 

the pleadings, complete discovery, and file motions, and the dates for 

pretrial conferences and trial.

Some districts and judges facilitate this process by requiring that 

parties cover specified ESI matters in their Rule 26(f) reports. For example, Local Rule 26.1 for the Eastern and Western Districts of Arkansas specifies an outline for the report and requires that the report 

indicate whether any party is likely to be asked to disclose or produce 

ESI, and if so, 

(a) whether disclosure or production will be limited to data reasonably available to the parties in the ordinary course of business;
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Managing Discovery of Electronic Information (2d ed.)

(b) the anticipated scope, cost, and time required for disclosure or 

production of data beyond what is reasonably available to the 

parties in the ordinary course of business;

(c) the format and media agreed to by the parties for the production of such data as well as agreed procedures for production;

(d) whether reasonable measures have been taken to preserve potentially discoverable data from alteration or destruction in the 

ordinary course of business or otherwise; and

(e) other problems which the parties anticipate may arise in connection with electronic or computer-based discovery.

Other courts specify that parties should indicate if they have entered 

into “clawback” or “quick peek” agreements, or agreed to testing or 

sampling provisions and, if so, the proposed treatment of ESI that is 

covered by attorney–client privilege or work-product protection, including what agreements they would like embodied in a court order.6

What disclosures of ESI are required under Rule 26(a)(1)?

Rule 26(a)(1) requires disclosure of the identities of individuals likely 

to have discoverable information, as well as “a copy of, or a description by category and location of, all documents, electronically stored 

information, and tangible things” that the disclosing party may use 

to support its claims or defenses, unless they are to be used solely for 

impeachment. Initial disclosures must be made “at or within 14 days 

after the Rule 26(f) conference unless a different time is set by stipulation or court order.” 

Rule 26(a)(1) is not intended to require a party to undertake an 

exhaustive review of ESI in its possession, custody, or control. Instead, 

its purpose is “to enable opposing parties (1) to make an informed 

decision concerning which documents might need to be examined, at 

least initially, and (2) to frame their document requests in a manner 

likely to avoid squabbles resulting from the wording of the requests.”7

At a minimum, a party’s initial disclosure should identify the nature 

of its computer systems, including its backup system, network system, 

and e-mail system and the software applications used by them.8

6. See, e.g., District of Maryland Protocol, supra note 4, ¶ 4.

7. Fed. R. Civ. P. 26 advisory committee’s note to 1993 Amendment.

8. Compare J. M. Moore, Moore’s Federal Practice § 37A.20[2] (3d ed. 2010) 
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Managing Discovery of Electronic Information (2d ed.)

Except in the most straightforward cases, in which minimal discovery is anticipated or parties on both sides are familiar with the discovery that will be exchanged as a matter of routine practice, allowing 

parties to opt out of Rule 26(a)(1) disclosures can be problematic. If 

the parties want to opt out of Rule 26(a)(1) disclosures, they should 

present the court with a realistic alternative procedure for exchanging baseline information about the relevant information systems as 

necessary to plan ESI discovery, including key custodians of critical 

categories of ESI.

How does a judge limit the scope of ESI discovery to that

proportional to the needs of the case?

The central issue in almost all discovery management is the determination of scope. Federal Rule of Civil Procedure 1 provides that 

the rules “should be construed and administered to secure the just, 

speedy, and inexpensive determination of every action and proceeding.” As explained in the Advisory Committee note, the revision in 

1993 to add the words “and administered” was intended to “recognize 

the affirmative duty of the court to exercise the authority conferred by 

these rules to ensure that civil litigation is resolved not only fairly, but 

also without undue cost or delay. As officers of the court, attorneys 

share this responsibility with the judge to whom the case is assigned.” 

Rule 1 imposes an obligation on the bench and bar to take affirmative 

steps to ensure that discovery in any particular case is proportional 

to the stakes and issues involved in that case, and is undertaken with 

cooperation among parties.

Rule 26(b)(2)(C) requires that a judge limit discovery to what is 

proportional to the needs of the case. It provides that, on a party’s 

motion or on its own initiative, 

the court must limit the frequency or extent of discovery otherwise 

allowed by these rules or by local rule if it determines that . . . the 

burden or expense of the proposed discovery outweighs its likely 

(stating an exhaustive search of inaccessible sources is not required as part of the initial disclosure obligation) with United States District Court for the District of Kansas, 

Guidelines for Discovery of Electronically Stored Information (ESI), http://www.ksd.

uscourts.gov/guidelines-for-esi/ [hereinafter District of Kansas Guidelines] (suggesting the search include “current back-up, archival, and legacy computer files”).
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Managing Discovery of Electronic Information (2d ed.)

benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the 

action, and the importance of the discovery in resolving the issues.

Whether the proportionality requirement of Rule 26(b)(2)(C) 

is satisfied may depend on the type of ESI being sought. As with all 

information sought in discovery, ESI must be relevant to the claims 

or defenses asserted in the pleadings or, if good cause is shown, the 

subject matter of the dispute, and not privileged or protected. In the 

context of ESI, key custodians’ production of active data, available to 

the responding party in the ordinary course of the party’s activities, 

is most likely to satisfy the proportionality requirement. Active electronic records are generally those currently being created, received, or 

processed, or that need to be accessed frequently and quickly. Even requests for certain active ESI, however, may be disproportionate to the 

needs of the case. The Federal Circuit Advisory Council Model Order,

for example, is premised on the idea that information obtained from 

mass e-mail searches is often tangential to the central issues in patent 

litigation.9

Systems data, which include such things as when people logged 

on and off a computer or network, the applications and passwords 

they used, and what websites they visited, may be more remote and 

more costly to produce. Other types of ESI are even more removed 

from what is available in the ordinary course of a party’s activities, 

and their production may involve substantial costs and time and the 

active intervention of computer specialists. These types of ESI include 

offline archival media, backup tapes designed for restoring computer 

systems in the event of disaster, deleted files, and legacy data that were 

9. The Advisory Council for the United States Court of Appeals for the Federal Circuit, An E-Discovery Model Order, http://www.cafc.uscourts.gov/the-court/ 

advisory-council.html [hereinafter Federal Circuit Advisory Council Model Order]. 

In adopting its order, the Advisory Council noted that patent cases tend to suffer 

from disproportionately high discovery expenses, citing Emery G. Lee III & Thomas 

E. Willging, Litigation Costs in Civil Cases: Multivariate Analysis (Federal Judicial 

Center 2010). The order promotes the exchange of core documentation concerning 

the patent, the accused product, the prior act, and the finances before e-mail production requests are made. It requires e-mail production requests to be focused on a 

specific issue, and presumptively limits the number of custodians and search terms 

for such requests.
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Managing Discovery of Electronic Information (2d ed.)

created on now-obsolete computer systems with obsolete operating 

and computer software.10

To ensure that the proportionality requirement is met, a judge 

may need to review the parties’ proposed production requests. The 

judge should encourage the lawyers to stage the discovery by first 

searching for the ESI associated with the most critical or key players, 

examining the results of that search, and using those results to refine 

subsequent searches. The judge should make sure the lawyers are using search methods and criteria that are cost-effective and proportional to reasonable discovery needs. 

When hard-to-access information is of potential interest, the 

judge should encourage or require lawyers to first sort through the information that can be obtained from easily accessed sources and then 

determine whether it is necessary to search the less accessible sources. 

The judge should also consider requiring parties to sample ESI that is 

not reasonably accessible to learn whether the benefits of a full search 

and of retrieving and restoring the ESI will justify the associated costs 

and burdens.

What type of information is “not reasonably accessible”?

A party asserting that ESI is “not reasonably accessible,” and thus 

not subject to discovery under Rule 26(b)(2)(B) absent a showing of 

good cause, has the burden of proving the undue burdens and costs 

of accessing it.11 A judge might require, among other things, an affidavit from a person with knowledge of the relevant systems, or from 

a qualified third party, detailing the procedures, anticipated costs, and 

foreseeable burdens of producing the ESI, presented in the context of 

the party’s resources. A judge should not be content with generalized 

or conclusory statements about costs and burdens. Some courts have 

indicated that certain types of ESI are presumptively not reasonably 

10. See, e.g., Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 318–19 (S.D.N.Y. 

2003) (describing the media on which ESI is maintained, and distinguishing active 

online data, near-line data, offline storage/archives, and backup tapes).

11. The Sedona Conference’s Working Group 1 on Electronic Document Retention and Production proposes a set of six overarching principles for litigants and 

judges in considering the proportionality of discovery requests, particularly in the 

context of Rule 26(b)(2)(B). The Sedona Conference, The Sedona Conference Commentary on Proportionality in Electronic Discovery, 11 Sedona Conf. J. 289 (2010).
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Managing Discovery of Electronic Information (2d ed.)

accessible. The Seventh Circuit Pilot Project Model Standing Order,

for example, includes the following in that category:

(1) deleted, slack, fragmented, or unallocated data on hard drives;

(2) random access memory (RAM) or other ephemeral data;

(3) on-line access data such as temporary internet files, history, 

cache, cookies, etc.;

(4) data in metadata fields that are frequently updated automatically, such as last-opened dates;

(5) backup data that is substantially duplicative of data that is more 

accessible elsewhere; and

(6) other forms of ESI whose preservation requires extraordinary 

affirmative measures that are not utilized in the ordinary course 

of business. 12

When does good cause exist to allow the discovery of “not reasonably 

accessible” information?

The requesting party may need discovery to challenge the assertion 

that the information is not reasonably accessible and to show good 

cause for the discovery to proceed. Such discovery may involve taking depositions of those knowledgeable about the responding party’s 

information systems;13 some form of inspection of the data sources; 

or requiring the responding party to conduct a sampling of information in the sources identified as not reasonably accessible. Sampling 

the less accessible sources can help refine the search parameters and 

determine the benefits and burdens associated with a fuller search.14

The Advisory Committee note to Rule 26(b)(2)(B) suggests that, 

in determining whether good cause exists to allow the discovery when 

the source of ESI is not reasonably accessible, the judge consider 

12. Seventh Circuit Electronic Discovery Pilot Program, Principle 2.04(d) of 

the Seventh Circuit Pilot Project Model Standing Order, http://www.DiscoveryPilot.

com/sites/default/files/StandingOrde8_10.pdf.

13. See Fed. R. Civ. P. 30(b)(6) (governing depositions directed at an organization). See also JSR Micro, Inc. v. QBE Ins. Corp., No. 09-03044, 2010 WL 1338152 

(N.D. Cal. Apr. 5, 2010); 1100 West, LLC v. Red Spot Paint & Varnish Co., No. 05-

1670, 2009 WL 1605118 (S.D. Ind. June 5, 2009).

14. The classic decision on sampling, which predates the 2006 amendments, is 

McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001). See also the subsequent decision, 

McPeek v. Ashcroft, 212 F.R.D. 33 (D.D.C. 2003).
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Managing Discovery of Electronic Information (2d ed.)

(1) the specificity of the discovery request; 

(2) the quantity of information available from other and more easily accessed sources; 

(3) the failure to produce relevant information that seems likely to 

have existed but is no longer available on more easily accessed 

sources; 

(4) the likelihood of finding relevant, responsive information that 

cannot be obtained from other, more easily accessed sources; 

(5) predictions as to the importance and usefulness of the further 

information; 

(6) the importance of the issues at stake in the litigation; and

(7) the parties’ resources.

In some cases, discovery of ESI from sources that are not reasonably accessible is unavoidable because of the claims and defenses. For 

example, the e-mail communications relevant to a disputed contract 

may have all occurred several years ago and are now only available 

from disaster recovery backup media. Or a claim of trade secret theft 

can only be established or defended by using system data showing access to the computer network at certain times. If the court permits the 

discovery of information from “not reasonably accessible” sources, 

the court may order that the requesting party pay all or part of the 

reasonable costs of producing the information. (See the next section.)

What factors are relevant to allocating costs?

In cases involving a large amount of ESI, or ESI that is not available 

from reasonably accessible sources, the costs to the producing party 

of locating the information, reviewing it for responsiveness and privilege, and otherwise preparing it for production may be very high.15 At 

15. Processing and reviewing ESI is thought to constitute about 94% of the total cost of its production. The cost range to review 100 gigabytes of information is 

estimated to be $7,000 to $284,375, a difference of $277,375, and the cost range to 

process 100 gigabytes of information, $75,000 to $180,000, a difference of $105,000. 

David Degnan, Accounting for the Cost of Electronic Discovery, 12 Minn. J. L. Sci. & 

Tech. 151 (2012). One hundred gigabytes of information is approximately equivalent to 100 small trucks, or a library floor, filled with books. Shira A. Scheindlin, 

Daniel J. Capra, & Kenneth J. Withers, Electronic Discovery and Digital Evidence 43 

(West American Casebook Series 2008). Recently the Rand Corporation examined 

e-discovery costs in 35 cases and found dramatically higher review costs of $1,800 to 
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Managing Discovery of Electronic Information (2d ed.)

the same time, the cost of copying and transporting the information 

is greatly reduced, and the costs to the requesting party of searching 

or organizing the information may be reduced because it can be done 

electronically.

In such cases, it may be appropriate to shift at least some of the 

production costs from the producing party to the requesting party. 

Although Rule 26(b)(2)(B) does not contain explicit language authorizing cost shifting, the Advisory Committee note to the rule clearly 

anticipates the shifting of costs of producing information that is not 

reasonably accessible.16 Two major cases—Rowe Entertainment, Inc. v. 

William Morris Agency, Inc.17 and Zubulake v. UBS Warburg LLC18—

introduced multifactor tests for determining when cost shifting is 

appropriate. Other courts have adopted or modified the Rowe and 

Zubulake formulations.

In Rowe, a racial discrimination case, the defendants objected 

to the production of e-mail information from backup media on the 

grounds that such discovery was unlikely to provide relevant informa-

$21,000 per gigabyte, with a median cost of $13,636 and a mean of $22,280. Nicholas 

M. Pace & Laura Zakaras, Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery (Rand Institute for Civil Justice, April 

2012). Differences between the estimates in the two studies might be accounted for by 

the different data sources and study methods they used. The range of cost estimates 

within and between the two studies suggests the need for a comprehensive empirical 

examination of the cost of e-discovery.

16. Some courts have interpreted Rule 26(b)(2)(B) as requiring a showing of inaccessibility for cost shifting. See, e.g., Peskoff v. Faber, 240 F.R.D. 26, 31 (D.D.C. 2007) 

(“[A]ccessible data must be produced at the cost of the producing party; cost-shifting 

does not even become a possibility unless there is first a showing of inaccessibility.”) 

(emphasis in original); accord Pipefitters Local No. 636 Pension Fund v. Mercer Human Res. Consulting, Inc., 2007 WL 2080365, at *2 (E.D. Mich. July 19, 2007). Other 

courts have held, however, that Rule 26(c) provides judges with the authority to shift 

costs as part of enforcing proportionality limits. See, e.g., Thompson v. U.S. Dep’t of 

Housing and Urban Dev., 219 F.R.D. 93, 98 (D. Md. 2003) (“The options available 

are limited only by the court’s own imagination and the quality and quantity of the 

factual information provided by the parties to be used by the court in evaluating the 

Rule 26(b)(2) factors. The court can, for example, shift the cost, in whole or part, of 

burdensome and expensive Rule 34 discovery to the requesting party . . . .”).

17. 205 F.R.D. 421 (S.D.N.Y. 2002), aff’d, 53 Fed. R. Serv. 3d 296 (S.D.N.Y. 2002).

18. 217 F.R.D. 309 (S.D.N.Y. 2003).
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tion and would invade the privacy of nonparties, and they requested 

that the plaintiffs bear the costs if production was nevertheless required. The court concluded that the e-mail information sought by 

the plaintiffs was relevant and that a blanket order precluding its discovery was unjustified. However, balancing eight factors derived from 

case law, the court required the plaintiffs to pay for the recovery and 

production of the e-mail backups, except for the cost of screening for 

relevance and privilege. The eight Rowe factors were as follows:

1. the specificity of the discovery requests;

2. the likelihood of discovering critical information;

3. the availability of such information from other sources;

4. the purposes for which the responding party maintains the requested data;

5. the relative benefit to the parties of obtaining the information;

6. the total cost associated with production;

7. the relative ability of each party to control costs and its incentive to do so; and

8. the resources available to each party.19

Zubulake, a sex discrimination case, also involved the production 

of e-mail messages that existed only on backup tapes and other archived media. After concluding that the plaintiff’s request was relevant to her claims, the court held that the usual rules of discovery 

generally apply when the data are in accessible format, but that cost 

shifting could be considered when data were relatively inaccessible, 

such as on backup tapes. The court substituted seven different, though 

quite similar, factors for the Rowe factors:

(1)[t]he extent to which the request is specifically tailored to discover relevant information;

(2)[t]he availability of such information from other sources;

(3)[t]he total cost of production, compared to the amount in controversy;

(4)[t]he total cost of production, compared to the resources available to each party;

19. 205 F.R.D. at 428–29.
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(5)[t]he relative ability of each party to control costs and its incentive to do so;

(6)[t]he importance of the issues at stake in the litigation; and

(7)[t]he relative benefits to the parties of obtaining the information.20

The court emphasized that the factors should not be applied mechanistically and should be weighted according to their importance.

Zubulake also set forth a sensible approach for assessing costs 

when a large amount of ESI that is not reasonably accessible is involved. Zubulake involved 77 backup tapes. Following the order in 

that case, the defendants restored and reviewed 5 of the tapes and 

found approximately 600 messages deemed to be responsive at a cost 

of about $19,000. Based on this work, the defendants were able to estimate the cost of restoring and reviewing the entire 77-tape collection. 

Considering the seven factors, the court determined that the balance 

tipped slightly against cost shifting, and it required the defendants to 

bear 75% of the restoration cost.21

How may Rule 26(g) sanctions be used to promote cooperation and 

proportionality in ESI discovery?

When signing discovery requests, responses, and objections under 

Rule 26(g), an attorney represents that they are “neither unreasonable nor unduly burdensome or expensive, considering the needs of 

the case, prior discovery in the case, the amount in controversy, and 

the importance of the issues at stake in the action.”22 A judge’s close 

supervision of ESI discovery and the judge’s availability to resolve disputes promptly are the most effective ways to keep the scope of discovery proportional to the case and to encourage cooperation among 

the parties. However, when necessary, sanctions for disproportionate 

or uncooperative discovery tactics can help curb abuses and encourage attorneys to be more thoughtful about the legitimacy of discovery 

requests, responses, and objections. 

20. 217 F.R.D. at 322.

21. This case is commonly referred to as Zubulake III, 216 F.R.D. 280 (S.D.N.Y. 

2003).

22. Fed. R. Civ. P. 26(g)(1)(B)(iii). 
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Managing Discovery of Electronic Information (2d ed.)

What principles apply to discovery from nonparties under 

Rule 45?

Discovery from nonparties is likely to be more frequent when the 

parties are seeking ESI than when they are seeking paper documents. 

Many businesses and individuals depend on telecommunications 

companies, Internet service providers, and computer network owners for computer services, and these non-parties may be the source 

for relevant and discoverable ESI, especially e-mail and text messages. 

There has been an explosion of online services, which may be rich 

repositories of discoverable ESI in a wide variety of cases. Social media, such as Facebook and LinkedIn, are possible sources of discovery 

in personal injury, employment discrimination, libel, and other types 

of cases. Organizations, both public and private, routinely outsource 

their computer-management and data-storage functions to “cloud 

computing” contractors and consultants, often without fully considering the consequences for records management and access. 

Rule 45 of the Federal Rules of Civil Procedure conforms the 

rules on ESI discovery from third parties to those on ESI discovery 

from parties. Rule 45 introduces the concept of sources that are not 

reasonably accessible. It addresses the form or forms for the production of ESI, adds a post-production procedure for asserting claims of 

privilege or of protection as trial-preparation materials, and allows 

for the testing or sampling of ESI. Although Rule 45 has no equivalent 

to the Rule 26(f) conference process, parties seeking discovery from 

nonparties under Rule 45 should be encouraged to meet informally 

with nonparty respondents and to discuss the scope of the subpoena, 

the form in which ESI will be produced, protection against waiver for 

privileged and protected information, and the allocation of discovery 

costs.23 Some courts have embodied such a requirement in guidelines, 

protocols, or local rules. For example, item 5 in the District of Kansas Guidelines for the Discovery of Electronically Stored Information,

provides the following:

Parties issuing requests for ESI from nonparties should attempt to 

informally meet and confer with the non-party (or counsel, if rep23. See, e.g., Universal Delaware, Inc. v. Comdata Corp., No. 07-1078, 2010 WL 

1381225 (E.D. Pa. Mar. 31, 2010) (addressing ESI in the subpoena context).
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Managing Discovery of Electronic Information (2d ed.)

resented). During this meeting, counsel should discuss the same issues with regard to requests for ESI that they would with opposing 

counsel as set forth in paragraph 4 above.24

Nonparty discovery—and, on occasion, discovery from parties—

can be complicated by the Stored Communications Act (SCA).25 Enacted in 1986 as part of the Electronic Communications Privacy Act,26

and thus predating the pervasiveness of the Internet, the SCA establishes various definitions of providers of communications services 

and prohibits or limits disclosures of ESI. Attempts to enforce subpoenas on providers of services can be barred or limited by the SCA.27

A related issue, the discussion of which is beyond the scope of 

this guide, involves transnational discovery, that is, discovery sought 

from sources that are maintained in another country. Information in 

a foreign country may be subject to “blocking,” data protection, or 

privacy statutes that prohibit the export or even simple collection of 

that information. In ruling on discovery requests or disputes, judges 

should be aware that under such statutes, penal sanctions may be levied against a producing party by the host country if these prohibitions 

are not obeyed.

In what form or forms should ESI be produced?

ESI can be produced in a variety of forms or formats, each with distinct advantages and disadvantages. The form of production may affect how easily, if at all, the receiving party can electronically search 

the information, whether relevant information is obscured or sensitive information is revealed, and how the information can be used in 

later stages of the litigation. For example, ESI can be produced as a 

TIFF or PDF file, which is essentially a photograph of an electronic 

document. Alternatively, ESI can be produced in “native format,” that 

is, the form in which the information was created and is used in the 

normal course of the producing party’s activities. Part 2 of Effective 

24. District of Kansas Guidelines, supra note 8.

25. 18 U.S.C. §§ 2701–2712.

26. Pub. L. No. 99-508, 100 Stat. 1848 (1986).

27. For a decision interpreting the SCA and collecting authorities, see Crispin v. 

Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010).
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Managing Discovery of Electronic Information (2d ed.)

Use of Courtroom Technology28 reviews in depth the various digital 

formats in which documents, photographs, videos, and other materials can be produced and the related issues of cost and usability.29

Many decisions have now addressed form or forms of production.30

Rule 34 addresses the issue of the form of ESI and recognizes that 

different forms of production may be appropriate for different types 

of ESI and for different purposes for which the information is needed. It permits the requesting party to designate the form or forms in 

which it wants ESI produced, and it requires the responding party 

to identify the form in which it intends to produce the information 

if the requesting party does not specify a form or if the responding 

party objects to a form that the requesting party specifies. It also requires the parties to meet and confer if there is a dispute about form 

of production and provides that in the absence of a party agreement 

or court order, the responding party must produce ESI either in a 

form or forms in which it is ordinarily maintained or in a form or 

forms that are reasonably usable. The Advisory Committee note is 

clear that production of ESI in a form that removes or significantly 

degrades the recipient’s ability to search the information electronically generally does not fulfill the “reasonably usable” requirement. 

The judge should ensure that the parties discuss the form or forms 

of production at the Rule 26(f) conference and, if necessary, inform 

the court of any disputes at the Rule 16 conference. The parties should 

discuss the forms in which the ESI likely to be sought in discovery is 

available; which forms would meet the needs of the requesting party; 

and the associated costs, burdens, and problems of preserving and 

producing the ESI in a particular form. If the responding party believes it is necessary to translate requested information from the form 

in which it is ordinarily maintained into another reasonably usable 

form, the parties should discuss whether this form significantly reduces the requesting party’s ability to search the information electronically and whether it makes it more difficult for the requesting 

28. Effective Use of Courtroom Technology: A Judge’s Guide to Pretrial and Trial 

(Federal Judicial Center 2001).

29. Also see the term file format in the Glossary to this guide.

30. See, e.g., Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep’t 

of Homeland Sec., 255 F.R.D. 350 (S.D.N.Y. 2008).
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Managing Discovery of Electronic Information (2d ed.)

party to use the information efficiently in the litigation. The parties 

should also discuss any information, technical support, or other assistance the responding party may need to provide to the requesting 

party so that it can use the information.

In resolving disputes over the form or forms of production, the 

judge should consider the following:

1. What alternative forms are available? What are their benefits 

and drawbacks for the requesting and responding parties?

2. How difficult will it be for a responding party to preserve, collect, review, and produce ESI in the form requested?

3. If the responding party is not producing ESI in the form in 

which it is ordinarily maintained, is the party producing it in a 

form that is reasonably usable by the requesting party? 

4. If the requesting party disputes that the proposed form of 

production is reasonably usable, what limits its use? Has the 

responding party stripped features, such as searchability, or 

metadata or embedded data that may be important? If so, 

what is the justification?

How should privilege and waiver issues be handled?

The volume of ESI that must be searched and produced in response 

to a discovery request can be enormous, and characteristics of certain 

types of ESI (e.g., embedded data, threads of e-mail communications, 

and e-mail attachments) also make it difficult to review for privilege 

and work-product protection. Thus, the risk of inadvertent disclosure 

of privileged or protected material during production persists even if 

great care is taken to identify and segregate it.

What are “clawback” and “quick peek” agreements?

To facilitate discovery, parties sometimes enter into agreements that 

help minimize the risk of waiver by inadvertent disclosure. Under 

what is commonly called a “clawback” agreement, the responding 

party typically reviews the material for privilege or protection before 

it is produced, but the parties also agree to a procedure for the return of privileged or protected information that is inadvertently produced. Alternatively, under “quick peek” agreements, which have been 
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Managing Discovery of Electronic Information (2d ed.)

used less frequently, the responding party provides requested material without a thorough review for privilege or protection, but with 

the explicit understanding that making it available to the requesting 

party does not waive any privilege or protection that may apply. The 

requesting party must sort through the material and designate under 

Rule 34 the specific documents it would like formally produced. The 

responding party then has the opportunity to review the documents 

that have been specifically requested and withhold those that are asserted to be privileged or protected. 

How can a court shield parties from waiving a privilege through 

inadvertent disclosure?

Given the increased likelihood of inadvertent production of privileged or protected ESI and the increased cost and delay required for 

effective preproduction review, the judge should encourage parties to 

discuss whether they can agree to “clawback,” “quick peek” or similar 

arrangements. If the parties are able to agree, the court should include 

their agreement in the case-management order or in a separate order. 

Once the court has incorporated the parties’ agreement in an order, 

the litigants are protected against assertions by third parties in parallel or subsequent cases that privilege or work-product protection has 

been waived through inadvertent disclosure in this litigation.31 See the 

discussion of Federal Rule of Evidence 502(d) infra pages 26–27.

How should a court test assertions of privilege?

Any assertion of privilege raises the question of how that assertion is 

to be tested. The accepted practice is, of course, in camera inspection 

of the material by the judge. In cases involving ESI, however, the judge 

may have to decide whether the sheer volume of information requires 

new methods of review, such as sampling or, in the rare case, the use 

of a special master.32

31. In the absence of an agreement between the parties or a court order, Federal Rule of Civil Procedure 26(b)(5)(B) establishes a default procedure for asserting 

privilege after production.

32. Federal Rule of Civil Procedure 26(b)(5)(A), generally speaking, requires the 

production of a privilege log. Such logs can be problematic at best when large quantities of ESI need to be listed, in particular, e-mail threads. Innovative approaches to 
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Managing Discovery of Electronic Information (2d ed.)

How is Federal Rule of Evidence 502 used to reduce cost and 

delay?

Because of ESI’s volume and mutability, its review for privilege can be 

time-consuming and costly. Federal Rule of Evidence 502 should help 

to reduce these burdens, and courts should encourage its use.

Rule 502, adopted in 2008, limits the waiver of attorney–client 

privilege or work-product protection by inadvertent disclosures. 

Most important for ESI discovery management, Rule 502(d) allows a 

court to order that production in the case will not waive privilege or 

work-product protection. 

Under Rule 502(a), an inadvertent disclosure of privileged ESI 

during a federal proceeding can never result in subject matter waiver 

at either the federal or state level. This alleviates the concern of producing parties that the innocent or minimal disclosures that are common in ESI discovery operate as a waiver of privilege not only as to 

what was produced but as to the entire subject matter.

Under Rule 502(b), inadvertent disclosure in a federal proceeding does not operate as a waiver in a federal or state proceeding if the 

holder of the privilege took reasonable steps to prevent the disclosure 

and promptly took reasonable steps to rectify the error, including following the procedures set forth in Federal Rule of Civil Procedure 

26(b)(5)(B). Rule 502(b) sought to establish a uniform standard 

across the United States courts for determining whether inadvertent 

production results in privilege waiver.33

Subsection (d) is in many ways the heart of Rule 502. It allows the 

court, on a party’s motion or sua sponte, to enter an order providing 

logging ESI alleged to be privileged can be found in John M. Facciola & Jonathan 

M. Redgrave, Asserting and Challenging Privilege Claims in Modern Litigation: The 

Facciola-Redgrave Framework, 4 Fed. Ct. L. Rev. 19 (2009), and J. A. Thomas et al.,

Reducing the Costs of Privilege Reviews and Logs, Nat’l L.J., March 23, 2009, at S1.

33. Federal Rule of Evidence 502(b) provides an objective way to determine 

if remedial measures are reasonable by referencing Federal Rule of Civil Procedure 

26(b)(5)(B), but leaves defining the standard for determining the “reasonableness” of 

preventive measures completely to the courts. For decisions addressing the “reasonableness” of such steps, see, for example, Amobi v. District of Columbia Department 

of Corrections, 262 F.R.D. 45 (D.D.C. 2009); Relion, Inc. v. Hydra Fuel Cell Corp., No. 

CV06-607, 2008 WL 5122828 (D. Or. Dec. 4, 2008); and Rhoads Industries, Inc. v. 

Building Materials Corp. of America, 254 F.R.D. 216 (E.D. Pa. 2008).
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that production of materials in connection with a federal proceeding will not waive privilege or work-product protection. The order 

is enforceable not only between the parties in that case but also as to 

third parties and in other state or federal proceedings. Rule 502(e) 

underscores the importance of incorporating party agreements on 

the effect of disclosure into a court order so that the waiver protection will extend to third parties and other cases. Party agreements not 

incorporated in a court order are binding only as between the parties.

The protection available under Rule 502 applies even in state 

courts. The provisions in Rule 502(b) regarding inadvertent disclosures in federal proceedings and Rule 502(d) nonwaiver orders in federal proceedings are binding in related state proceedings. Rule 502(c) 

speaks to the effect of disclosures in a state proceeding on privilege 

assertion in federal courts.

With these provisions, parties should be more willing to enter 

into “quick peek” agreements, which reduce review costs even more 

than the more commonly used “clawback” agreements. Rule 502 obviates the need for exhaustive preproduction review to the extent it is 

motivated by a party’s fear of waiving privilege or protection. Judges 

should encourage parties to consider all reasonable approaches for reducing the burdens of privilege review at their Rule 26(f) conference. 

For example, an order might allow search-and-retrieval experts on 

both sides to meet, confer, and compare results of test searches without fear of forfeiting privilege. If parties fail to reach an agreement 

about production and waiver, the court may enter the Rule 502(d) 

order on its own to remove the risk of waiver through inadvertent 

production.34

Litigation holds: How can the court promote the parties’ 

reasonable efforts to preserve ESI?

Because of ESI’s dynamic, mutable nature, it is extremely important 

for parties to discuss its preservation early in the case, and the judge 

should raise the issue if the parties do not do so in a timely manner. In 

many cases, preservation obligations arose even before the complaint 

34. See Rajala v. McGuire Woods, LLP, No. 08-2638-CM-DJW, 2010 WL 2949582 

(D. Kan. July 22, 2010) (the court, over the objections of the plaintiff, entered an order with a “clawback” provision, as requested by the defendant).
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was filed. The parties and the court should balance the need to preserve relevant information with the need to continue computer operations critical to a party’s routine activities. The preservation steps 

required should be reasonable and proportional to the particular case.

The judge may help ensure that parties avoid later allegations of 

spoliation by requiring them to discuss, and reviewing with them, 

steps for establishing and implementing an effective preservation 

plan. Such steps can be incorporated into case-management orders or 

discovery protocols and may include

1. having a knowledgeable person describe the party’s information systems, storage, and retention policies and practices to 

the opposing party and the court;

2. interviewing key employees to determine sources of information;

3. affirmatively and repeatedly communicating litigation holds 

to all affected employees and other persons and monitoring 

compliance on an ongoing basis;

4. integrating discovery responsibilities with routine data retention policies and practices;

5. actively managing and monitoring document collections; and

6. documenting the steps taken to design, implement, and audit 

the litigation hold.35

Some of the existing ESI discovery protocols go into great detail about 

the scope, duration, and implementation of litigation holds. See, for 

example, the District of Maryland Protocol (paragraph 7) and the 

District of Delaware Default Standard (paragraph 1), discussed infra 

note 44 and accompanying text.

Early in the case, particularly where there is an identified risk that 

potentially relevant ESI will be lost, the judge should urge the parties to discuss and reach agreement on preservation. An agreement on 

what categories or sources of ESI will be preserved minimizes the risk 

that relevant evidence will be deliberately or inadvertently destroyed, 

35. This list is based on the discussion in Zubulake V, 229 F.R.D. 422 (S.D.N.Y. 

2004), and is illustrated in detail in Pension Committee of University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010).
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helps ensure that information is retrieved when it is most accessible 

(i.e., before it has been deleted or removed from active online data), 

and helps protect the producing party from later spoliation allegations. The agreement may be incorporated into a court order if the 

parties feel that would be helpful or necessary to ensure enforcement.

Any such order must be both clear and narrowly drawn, however. The order should clearly define the preservation obligations and 

should be narrowly drawn to avoid imposing burdens that may unduly interfere with a party’s day-to-day operations or creating “gotcha” situations by requiring preservation steps that are unrealistic 

or difficult to follow.36 In crafting the order, the judge needs to learn 

from the responding party what data-management systems are routinely used, the volume of data affected, and the costs and technical 

feasibility of implementing the order. Such orders should ordinarily 

include provisions that permit the destruction of information under 

specified circumstances. An order may, for example, exclude from 

preservation requirements specified categories of documents or data 

whose costs of preservation substantially outweigh their relevance to 

the litigation, particularly if the information can be obtained from 

other sources. Moreover, as issues in the case are narrowed, the judge 

may ask the parties if the preservation order should be revisited and 

reduced in scope.

Two other considerations may be helpful to judges in dealing with 

preservation issues. First, actors other than the parties may become 

important. These actors may be the custodians of ESI relevant to a 

proceeding and may be bound by contractual relationships with parties to create and/or maintain the ESI. The duty to preserve ESI may 

well extend to such nonparty actors.37 Second, as technology advances 

and automated litigation-related tools become more widely available 

and more reliable and cost-effective to use, courts may hold parties 

36. The Manual for Complex Litigation, Fourth provides guidance about what 

type of preservation order is most useful and under what circumstances an order 

should be entered. See MCL 4th, supra note 2, § 11.442.

37. For decisions addressing preservation obligations that may be imposed on 

nonparty consultants, see, for example, Cedar Petrochemicals, Inc. v. Dongbu Hannong 

Chemical Co., 769 F. Supp. 2d 269 (S.D.N.Y. 2011); Goodman v. Praxair Services, Inc.,

632 F. Supp. 2d 494 (D. Md. 2009); and Innis Arden Golf Club v. Pitney Bowes, Inc., 257 

F.R.D. 334 (D. Conn. 2009).
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Managing Discovery of Electronic Information (2d ed.)

to standards of preservation (and production) that reflect those advances and tools.

What are the standards for finding spoliation and the criteria 

for imposing sanctions?

The flip side of data preservation is, of course, spoliation. Spoliation is 

the destruction or material alteration of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably 

foreseeable litigation. The authority to impose sanctions for spoliation arises under the Federal Rules of Civil Procedure and, if the rules 

do not apply, the court’s inherent powers. Determining whether sanctions are warranted for spoliation of ESI often presents a challenge to 

a court, given the ease with which ESI can be either intentionally or 

inadvertently deleted or modified.

The case law on sanctions for spoliation of ESI is growing and 

beyond the scope of this introductory guide. In determining what 

sanctions to impose, a judge should look to the controlling circuit law 

and the facts of the case. How relevant was the evidence lost, and to 

what extent did its destruction prejudice the opposing party? Was the 

destruction of evidence the result of negligence or gross negligence, 

or was it intentional and in bad faith? Was the information destroyed 

for the purpose of preventing its use in the litigation, or unintentionally as a result of the good-faith operation of the computer system? 

Depending on the importance of the lost or modified information to 

the claims or defenses, on the party’s level of culpability, and on the 

controlling circuit law,38 a variety of sanctions may be imposed. These 

38. See the appendix to Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497 

(D. Md. 2010), which is a chart that describes positions on spoliation and sanctions 

taken by each court of appeals and includes related citations. Two decisions are illustrative of the differing approaches courts of appeals have taken. In Pension Committee 

of University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F. Supp. 

2d 456 (S.D.N.Y. 2010), styled “Zubulake Revisited: Six Years Later,” the court considered the imposition of spoliation sanctions under Second Circuit law and determined 

that monetary sanctions were appropriate for negligence, but an adverse instruction, 

in addition to monetary sanctions, was appropriate for gross negligence. In comparison, the court in Rimkus Consulting Group v. Cammarata, 688 F. Supp. 2d 598 (S.D. 

Tex. 2010), held that under Fifth Circuit law, severe sanctions, such as adverse inferences, may not be imposed unless evidence of bad faith exists.
31

Managing Discovery of Electronic Information (2d ed.)

range in severity from monetary sanctions to preclusion of evidence 

or adverse inferences and to dismissal of the complaint or entry of 

default. A common theme in the case law 

is that the least severe sanction responsive 

to the spoliation should be imposed. Even 

if a sanction is not appropriate, courts may 

order additional discovery to redress the 

unavailability of information that was not 

preserved.

One common feature of computer 

systems is the deletion of outdated or 

ephemeral information on an ongoing, 

prescheduled basis to prevent overloading the system (e.g., overwriting deleted digital information, recycling 

backup tapes, and purging e-mail messages after a certain period). 

Rule 37(e) acknowledges such record-management policies, stating 

that “absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically 

stored information lost as a result of the routine, good-faith operation 

of an electronic information system” (emphasis added). The issue of 

“good faith” may be complicated. Good faith may require, among 

other things, a party to modify or suspend certain features of the electronic information system to prevent the loss of information subject 

to a preservation order, and it may preclude a party from exploiting 

the routine operation of the system to avoid the party’s discovery obligations. The phrase “absent exceptional circumstances” provides the 

court with flexibility to respond to the facts of each case.

Where can a judge find additional information and guidance?

Many resources on ESI exist—there are resources for a judge who 

is managing a case involving significant amounts of ESI for the first 

time, for a judge who is confronted with a complex ESI issue, and 

for a court that wants to develop a uniform ESI policy through local 

rules, guidelines, or protocols. The Federal Judicial Center maintains 

materials on electronic discovery on its intranet and Internet sites.39

39. http://cwn.fjc.dcn/fjconline/home.nsf/pages/196 and http://www.fjc.gov/

public/home.nsf/pages/196.

Considerations regarding 

spoliation of ESI and 

sanctions

Relevance of evidence lost 

and extent of prejudice

Degree of culpability

Relationship to recordsmanagement policy and 

Rule 37(e)
32

Managing Discovery of Electronic Information (2d ed.)

The 2006 amendments to the Federal Rules of Civil Procedure 

that specifically address the discovery of ESI and the associated Advisory Committee notes offer considerable guidance in managing the 

discovery of ESI, as does Federal Rule of Evidence 502, which was adopted in 2008. The growing body of case law concerning ESI-related 

discovery is also useful; a quarterly summary prepared by The Sedona 

Conference is available on the Center’s resource page. In addition, the 

Manual for Complex Litigation, Fourth provides assistance on some 

matters, such as preservation orders.

Some professional associations have devoted considerable attention to ESI discovery issues and offer a wealth of information for 

judges. See, for example, The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production (The Sedona Conference Working Group Series June 2007);40

The Sedona Conference Cooperation Proclamation: Resources for the 

Judiciary (August 2011);41 and Managing E-Discovery and ESI: From 

Pre-Litigation Through Trial, published in 2011 by the American Bar 

Association.42

Courts, too, have been proactive in developing guidance on ESI 

discovery. The Seventh Circuit Electronic Discovery Pilot Program 

was initiated in May 2009 as a multiyear, multiphase process to develop, implement, evaluate, and improve pretrial litigation procedures 

that provide fairness and justice to all parties while reducing the cost 

and burden of electronic discovery, consistent with Rule 1 of the Federal Rules of Civil Procedure. The program’s Phase 1 Report sets forth 

eleven principles relating to the discovery of ESI. From October 2009 

through March 2010, these principles were tested in practice; thirteen 

judges of the U.S. District Court for the Northern District of Illinois 

(five district judges and eight magistrate judges) implemented them 

in 93 civil cases. An interim report on Phase 2 of the program presents 

slightly revised principles, reflecting the experience of these judges, 

as well as results from surveys of both judges and attorneys. The re40. The Sedona Principles, supra note 2.

41. http://www.thesedonaconference.org/dltForm?did=Judicial_Resources.pdf.

42. Michael D. Berman, Courtney Ingraffia Barton & Paul W. Grimm, Managing 

E-Discovery and ESI: From Pre-Litigation Through Trial (American Bar Association 

2011).
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Managing Discovery of Electronic Information (2d ed.)

ports; a model standing order embodying the principles; a list of the 

district, magistrate, and bankruptcy judges participating in Phase 2 of 

the program; and other material on the program’s website offer much 

insight.43

In addition, some courts, such as the U.S. District Courts for the 

District of Delaware, District of Kansas, and District of Maryland, 

have adopted guidelines or protocols for dealing with ESI discovery 

issues.44 These protocols provide a useful starting place for developing 

district-wide guidelines or for developing case-management orders 

in individual cases. For example, the stated purpose of the Maryland Protocol is to provide parties with a comprehensive, yet flexible, 

framework for facilitating the just, speedy, and inexpensive conduct 

of discovery involving ESI in civil cases, and to promote, whenever 

possible, the resolution of disputes regarding the discovery of ESI 

without the court’s intervention. It is detailed enough for the most 

complex case, yet adaptable for cases that may involve small stakes 

and comparatively small amounts of ESI. The court encourages attorneys to follow the protocol, as is appropriate to their cases, and indicates that it might consider compliance with the protocol in resolving 

discovery disputes and imposing sanctions. The protocol encourages 

parties to hold a meaningful Rule 26(f) conference (or conferences) 

to discuss issues relating to the disclosure and discovery of ESI, and 

to submit a report to the court embodying their agreements and disagreements and proposed treatment of ESI that is subject to attorney–client privilege and work-product protection. The protocol also 

provides detailed guidance to parties in preparing for the conference. 

Other courts have adopted local rules to address an assortment of 

ESI-related issues. For example, Local Rule 26.1 for the Middle District of Pennsylvania describes the preparation expected of attorneys 

before the Rule 26(f) meeting of counsel, the issues related to ESI that 

43. Seventh Circuit Electronic Discovery Pilot Program, http://www.discovery 

pilot.com.

44. District of Delaware Default Standard, supra note 5; District of Kansas 

Guidelines, supra note 8; District of Maryland Protocol, supra note 4. See also Federal Circuit Advisory Council Model Order, supra note 9. A collection of guidelines, 

protocols, and local rules can be found on the Federal Judicial Center’s Materials on 

Electronic Discovery page at http://cwn.fjc.dcn/fjconline/home.nsf/pages/196 and 

http://www.fjc.gov/public/home.nsf/pages/196.
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Managing Discovery of Electronic Information (2d ed.)

should be discussed at the meeting, and how points of disagreement 

should be presented to the court. It also generally describes the disclosures of ESI that are expected under Rule 26(a)(1.)

Conclusion

Discovery of ESI presents new and unique challenges to litigants, 

lawyers, and judges. The challenges include scope, allocation of costs, 

form or forms of production, waiver of privilege and work-product 

protection, and preservation and spoliation. To effectively manage 

these issues, judges must understand the relevant technology at a level 

that allows effective communication with attorneys, parties, and experts. The information in this guide is an introduction to the issues, 

and additional resources can be found on the Center’s intranet and 

Internet sites.

To facilitate efficient and cost-effective discovery, judges must require attorneys to take seriously their obligation to meet and confer 

under Rule 26(f) and to submit a meaningful discovery plan that addresses ESI issues likely to arise in the case. Judges must also encourage parties to narrowly target requests for ESI. Judges must evaluate 

whether the costs of complying with the requests are proportional 

to the benefit of complying. To this end, judges may need to impose 

limits on discovery; encourage or order tiered or stayed discovery; 

order sampling to determine the relevance, need, and cost of more 

expansive discovery; or shift costs from the producing party to the 

requesting party, particularly when information that is not reasonably 

accessible must be produced. Judges need to help ensure that ESI is 

produced in a usable form, and they may need to clarify the procedures to be followed if privileged or protected information is inadvertently disclosed. They should help parties balance the need to preserve 

relevant evidence with the need to continue routine computer operations critical to a party’s activities, and enter preservation orders as 

appropriate. 

In the end, judges must actively manage electronic discovery, raising points for consideration by parties rather than waiting for parties 

to present disputes that can delay a case, add to its costs, and distract 

from its merits. Such active management can help ensure the expeditious and fair conduct of discovery involving ESI.
35

Managing Discovery of Electronic Information (2d ed.)

Glossary

Most entries in this glossary were derived, with permission, from The 

Sedona Conference Glossary: E-Discovery & Digital Information Management (3d ed. 2010), available at https://thesedonaconference.org/

download-pub/471.

active data (active records): Information located in a computer system’s 

memory or in storage media attached to the system (e.g., disk drives) that 

is readily available to the user, to the operating system, and to application 

software. (See storage medium.)

application: One or more related software programs that enable a user to 

enter, store, view, modify, or extract information from files or databases. The 

term is commonly used in place of program or software. Applications may include word processors, Internet browsing tools, spreadsheets, e-mail clients, 

personal information managers (contact information and calendars), and 

other databases.

archival data: Information that is maintained in long-term storage for business, legal, regulatory, or similar purposes, but not immediately accessible to 

a computer system’s user. The data may be stored on removable media, such 

as CDs, tapes, or removable disk drives, or may be maintained on system disk 

drives. The data are typically stored in an organized way to help identify, access, or retrieve individual records or files.

attachment: A record or file associated with another record for the purpose 

of retention, transfer, processing, review, production, or routine records 

management. There may be multiple attachments associated with a single 

“parent” or “master” record. In many records and information management 

programs, or in a litigation context, the attachments and associated records 

may be managed and processed as a single unit. In common use, this term 

often refers to a file (or files) associated with an e-mail message for retention 

and storage as a single message unit.

backup data (disaster recovery data): An exact copy of data that serves as 

a source for recovery in the event of a system problem or disaster. The data 

are generally stored separately from active data on tapes or removable disk 

drives, and often without indexes or other information. As a result, the data 

are in a form that makes it difficult to identify, access, or retrieve individual 

records or files. 
36

Managing Discovery of Electronic Information (2d ed.)

backup tape recycling: A process in which backup data tapes are overwritten with new backup data, usually according to a fixed schedule determined 

jointly by records-management, legal, and information technology (IT) personnel.

cloud computing: “[A] model for enabling convenient, on-demand network 

access to a shared pool of configurable computing resources (e.g., networks, 

servers, storage, applications, and services) that can be rapidly provisioned 

and released with minimal management effort or service provider interaction.” http://csrc.nist.gov/groups/SNS/cloud-computing/ (last visited June 

22, 2010). For further explanation, see the NIST website cited. 

computer forensics: The scientific examination and analysis of computerized data primarily for use as evidence. Computer forensics may include the 

secure collection of computer data; the examination of suspect data to determine details, such as origin and content; and the presentation of computerbased information to courts. It may involve re-creating deleted, damaged, 

or missing files from disk drives; validating dates and authors or editors of 

documents; and certifying key elements of electronically stored information.

data (electronic): Information stored on a computer, including numbers, 

text, and images. Computer programs (e.g., word processing software, 

spreadsheet software, presentation software) are used to process, edit, or 

present data.

data mining: Generally refers to knowledge discovery in databases (structured data). It relies on automatic and semiautomatic techniques to extract 

previously unknown interesting patterns from large quantities of data, which 

can then be subjected to further inspection and analysis. In the context of 

electronic discovery, this term often refers to the processes used to sort 

through a collection of electronically stored information to extract evidence 

for production or presentation in an investigation or in litigation.

de-duplication: A process that searches for and deletes duplicate information. (See the glossary maintained by The Sedona Conference for a description of different types of de-duplication.)

deleted data: Data that once existed on a computer as active data, but have 

been marked as deleted by computer programs or user activity. Deleted data 

may remain on the storage media in whole or in part until they are overwritten or “wiped.” Even after the data have been wiped, directory entries, 

pointers, or other information relating to the deleted data may remain on 

the computer.
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Managing Discovery of Electronic Information (2d ed.)

deletion: A process in which data are marked as deleted by computer programs or user activity and made inaccessible except through the use of special data-recovery tools. Deletion makes data inaccessible with normal application programs, but commonly leaves the data on the storage medium. 

There are different degrees of deletion. “Soft-deleted data” are data marked 

as deleted in the computer operating system (and not generally available to 

the user after such marking), but not yet physically removed from or overwritten on the storage medium. Soft-deleted data can often be restored in 

their entirety. In contrast, “wiping” is a process that overwrites the deleted 

data with random digital characters, rendering the data extremely difficult to 

recover, and “degaussing” is a process that rearranges the magnetic patterns 

on the medium, rendering the data impossible to recover with all but the 

most sophisticated computer forensics tools.

disk mirroring: The ongoing process of making an exact copy of information from one location to another in real time. It is often used to protect 

data from a catastrophic hard disk failure or for long-term data storage. (See 

replication.) 

electronic discovery: The process of collecting, preparing, reviewing, and 

producing electronic documents in a variety of criminal and civil actions 

and proceedings.

embedded data: Data that include commands that control or manipulate 

data, such as computational formulas in spreadsheets or formatting commands in a word processing document. Embedded data are not visible when 

a document is printed or saved as an image format. (See metadata.)

ESI: Electronically stored information.

file format: The internal organization, characteristics, and structure of a 

file that determine the software programs with which it can optimally be 

used, viewed, or manipulated. The simplest file format is ASCII (American 

Standard Code for Information Interchange; pronounced “ASK-ee”), a nonproprietary text format. Documents in ASCII consist of only text with no 

formatting or graphics and can be read by most computer systems using 

nonproprietary applications. Specific applications may define unique (and 

proprietary) formats for their data (e.g., WordPerfect document file format). 

These formats are also called the “native” format. Files with unique formats 

may only be viewed or printed with their originating application or an application designed to work with compatible formats. Computer systems commonly identify files by a naming convention that denotes the native format 
38

Managing Discovery of Electronic Information (2d ed.)

(and therefore the probable originating application) as an extension of the 

file’s name. For example, a WordPerfect document could be named document.wpd, where “.wpd” denotes a WordPerfect file format. Other common 

formats are .docx for Microsoft Word files, .xls for Microsoft Excel spreadsheet files, .txt for ASCII text files, .ppt for Microsoft PowerPoint files, .jpg 

for photographs or other images, and .pdf for Adobe Acrobat documents.

forensic copy: An exact copy of an entire physical storage medium (e.g., hard 

drive, CD, DVD, tape), including all active and residual data and unallocated, 

or slack, space on the medium. Forensic copies are often called “images” or 

“imaged copies.”

form of production: The manner in which requested documents are produced. The term is used to refer to both the file format and the media on 

which the documents are produced (paper versus electronic).

hash value: A unique numerical identifier that can be assigned to a file, a 

group of files, or a portion of a file, based on a standard mathematical algorithm applied to the characteristics of the data set. The most commonly used 

algorithms, known as MD5 and SHA, will generate numerical identifiers so 

distinctive that the chance that any two data sets will have the same one, no 

matter how similar they appear, is less than one in one billion. “Hashing” is 

used to guarantee the authenticity of an original data set and can be used as 

a digital equivalent of the Bates stamp used in paper document production.

image (verb): To image a hard drive is to make an identical copy of the hard 

drive at the lowest level of data storage. The image will include deleted data, 

residual data, and data found in hidden portions of the hard drive. Imaging 

is also known as creating a “bit stream image” or “mirror image,” or “mirroring” the drive. It is different from the process of making a “logical copy” of 

or “ghosting” a hard drive, which normally copies only the active data on the 

hard drive, and not the deleted data, residual data, and data in hidden portions of the hard drive.

legacy data: Electronically stored information in which an organization may 

have invested significant resources and which retains importance, but which 

was created and is stored through the use of software and/or hardware that 

has become obsolete or replaced (“legacy systems”). Legacy data may be 

costly to restore or reconstruct.

metadata: Information about a particular data set or document which describes how, when, and by whom the data set or document was collected, 

created, accessed, or modified; its size; and how it is formatted. Some meta-
39

Managing Discovery of Electronic Information (2d ed.)

data, such as file dates and sizes, can easily be seen by users; other metadata 

can be hidden from users but are still available to the operating system or the 

program used to process the data set or document. (See embedded data and 

systems data.)

near-line data storage: Storage in a system that is not physically part of the 

computer system or local network in daily use, but can be accessed through 

the network. Near-line data may be stored in a library of CDs, which can be 

automatically located and loaded for reading, or stored at a remote location 

accessible through an Internet connection. There is usually a small time lag 

between the request for data stored in near-line media and the data’s availability to an application or user. Making near-line data available is an automated process (in contrast, making “offline” data available generally can be 

done only by a person physically retrieving the data). 

offline data storage: The storage of electronic records, often for long-term 

archival purposes, on removable media (e.g., CDs, removable disk drives) 

or magnetic tape that is not connected to a computer or network. Accessing 

offline media usually requires manual intervention and is much slower than 

accessing online or near-line media.

PDF (portable document format): A file format developed by Adobe Systems Incorporated. Once converted to this format, documents are readable 

outside of the application that created them. A PDF file captures document 

formatting information (e.g., margins, spacing, fonts) from the original application (e.g., WordPerfect) in such a way that the document can be viewed 

and printed as intended in the original application by the Adobe Reader 

program, which is available for most computer operating systems. Other 

programs (most notably Adobe Acrobat) are required to edit or otherwise 

manipulate a PDF file.

records management: The activities involved in handling information, generally for organizations that are large data producers. Records management 

includes maintaining, organizing, preserving, and destroying information, 

regardless of its form or the medium on which it is stored.

replication: The ongoing process of making an exact copy of information from one location to another in real time. It is often used to protect data from a catastrophic failure or for long-term data storage. (See 

disk mirroring.)

residual data (ambient data): Data that are not active on a computer system and that are not visible without the use of “undelete” or other special 
40

Managing Discovery of Electronic Information (2d ed.)

data-recovery techniques. Residual data may contain copies of deleted files, 

Internet files, and file fragments.

restore: To transfer data from a backup or archival storage system (e.g., 

tapes) to an online system. Restoring archival data may require replication of 

the original hardware and software operating environment.

sampling: The process of selecting a small part of a larger data source and 

searching it to test for the existence, or frequency, of relevant information, 

to assess whether the source contains privileged or protected information, 

and to assess the costs and burdens of identifying and producing requested 

information. 

search engine: A program that enables a search for key words or phrases, 

such as on web pages throughout the World Wide Web. (See the glossary 

maintained by The Sedona Conference for a description of different types 

of searches.)

storage medium: The physical device containing electronically stored information, including computer memory, disk drives (including removable disk 

drives), magneto-optical media, CDs, DVDs, memory sticks, and tapes.

systems data: Information about a computer system that includes when people logged on and off a computer or network, the applications and passwords 

they used, and what websites they visited.
This page is left blank intentionally to facilitate printing of this 

document double-sided.
The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Judge Catherine C. Blake, U.S. District Court for the District of Maryland

Magistrate Judge John M. Facciola, U.S. District Court for the District of Columbia

Judge James B. Haines, Jr., U.S. Bankruptcy Court for the District of Maine

Judge James F. Holderman, Jr., U.S. District Court for the Northern District of 

Illinois

Judge Michael M. Melloy, U.S. Court of Appeals for the Eighth Circuit

Judge Edward C. Prado, U.S. Court of Appeals for the Fifth Circuit

Judge Kathryn H. Vratil, U.S. District Court for the District of Kansas

Judge Thomas F. Hogan, Director of the Administrative Office of the U.S. Courts

Director

Judge Jeremy D. Fogel

Deputy Director

John S. Cooke

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the 

recommendation of the Judicial Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, which 

also includes the director of the Administrative Office of the U.S. Courts and seven 

judges elected by the Judicial Conference.

The organization of the Center reflects its primary statutory mandates. The Education Division plans and produces education and training programs for judges and 

court staff, including video programs, publications, curriculum packages for in-court 

training, and Web-based programs and resources. The Research Division examines 

and evaluates current and alternative federal court practices and policies. This research assists Judicial Conference committees, who request most Center research, in 

developing policy recommendations. The Center’s research also contributes substantially to its educational programs. The two divisions work closely with two units of 

the Director’s Office—the Information Technology Office and the Communications 

Policy & Design Office—in using print, broadcast, and online media to deliver education and training and to disseminate the results of Center research. The Federal 

Judicial History Office helps courts and others study and preserve federal judicial 

history. The International Judicial Relations Office provides information to judicial 

and legal officials from foreign countries and assesses how to inform federal judicial 

personnel of developments in international law and other court systems that may 

affect their work.