Everyone involved in discovery has read the FRCP at least once, but the question is how much of the detail has driven decisions that get made every day by litigators? Rule 26(f) of the Federal Rules of Civil Procedure requires attorneys to participate in a conference to discuss, among other things, a discovery plan for the litigation. Commonly known as “Meet and Confer” or “Rule 26(f) conferences”, are designed to assure that all parties are on the same page during the discovery process and that no procedural issues will impact the discovery schedule.
FRCP Rule 26(f)(3)(C)
Specifically, the language of Rule 26(f)(3)(C) states, “any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced” must be stated in the discovery plan. Having a clear discovery path defined from the outset assures that resources are not wasted; schedules are not negatively impacted and eliminates any procedural arguments later in the litigation.
This seems like it should be relatively straight forward, yet it continually causes problems during its execution for several different reasons. The first is that the newly revised rules spend a lot of time talking about cooperation and reasonableness; which many attorneys feel are diametrically opposed to the basic adversary relationship that is at the heart of our litigation system. The problem is that this is outdated thinking.
Meet and Confer
While the judges don’t expect a love-fest durng the Meet and Confer, they also want the adversarial relationship to be focused on matters that truly matter. You are not required to discuss your case strategy or disclose your work product. What they want is for parties to agree on technical and logistical issues to get the discovery completed within a reasonable time. Disclose the information that you are required to, ask for reasonable amounts of information and save the fighting over the interpretation of the documents and testimony for the courtroom.
Second, many people arriving at the Meet and Confer do so without a plan and without the necessary technical staff to respond to issues which will arise. They assume that the purpose of the Meet and Confer is to start the discussion, when in reality the courts expect to be focusing only on areas where an agreement has not yet been reached. But they fully expect that parties will be engaging in detailed discussions before they arrive in court, have a substantial agreement and are there to resolve any outstanding issues. Wasting the court’s time is a sure fire way to make sure that you will be considered the “problem”, not your opposition.
Almost as bad are those that arrive at the Meet and Confer with a list of ridiculous minutia that don’t have any practical impact on the litigation plan and really are a waste of everyone’s time. I would urge you to arrive at the meeting with a well thought out list of non-resolved issues and your reasons for why either requests for certain materials are being made or why you are not obligated to comply with a demand from the opposition. Include the following major issues are covered in your agreement:
Meet and Confer Issues for Agreement
- Preservation of ESI – are the proper litigation holds in place to ensure no information is lost or destroyed?
- Data Map – you want your team to know where all your ESI is located and how easy it is to access. Do archives or legacy systems need to be accessed? Does the ESI exist only on email servers or does data need to be collected from other computer systems? Armed with this information, you can make arguments for limiting the time period of collection, the number of custodians and the type of information that should be collected based on the reasonableness of the request and the proportional cost of the litigation.
- Timing – Again, armed with the knowledge about where data resides and in what format, you can make an argument for what a reasonable timeline for completion of discovery would be. And in the interests of moving the case forward, should data collection be prioritized?
- Subject Matter – Do the requests clearly identify what the subject matters of the ESI are and who the custodians of this information should be?
- Privilege – A clear agreement on exactly what the privilege logs should contain and how this material is to be handled is key to eliminating the need to do work twice.
- Forms of Production – This is one of the most important components of any agreement. Once the data is collected, how will it be turned over? Should files be natives, PDFs, single page or multipage tiffs? What metadata fields, if any should be produced? And what type of load file format should be used. These are all questions for your technical staff that should be visited before the meeting so you know what you want and why. But you should always bring a technical person with you to deal with unexpected issues raised by the opposition.
- Cost – Perhaps the most important consideration given the changes to the FRCP in December of 2015. Based on what you think the volume of data is, and what technology you are going to use to help you parse through it, what is the anticipated budget for eDiscovery? Does it make sense to share costs? And the most important factor? Is the cost proportional to the needs or potential value of the case?
This type of cooperation during the Meet and Confer is not a challenge to your advocacy on behalf of your client. Judges are becoming less tolerant of parties that can’t resolve basic eDiscovery issues. They want discovery motions to be based on real issues and not be delay tactics. They understand their role as the arbitrator in disputes, but they hate being the schoolyard monitor. It is important that you can demonstrate to the court that you have made a good-faith attempt to resolve any discovery issues before wither coming to the court or executing the discovery. Given the current volumes of data that can potentially be included in a request, litigators can not afford to repeat discovery because it wasn’t handled correctly the first time. And clients will not understand why they are paying to redo work that could have been avoided by reaching agreement with the opposition before the discovery process started.