Federal Rule of Civil Procedure 26(f) requires parties to litigation to meet early in a case—the rule’s language specifies “as soon as practicable,” absent a court order, and at least 21 days before the court holds a scheduling conference or before the Rule 16(b) scheduling order is due.
The rule imposes a number of responsibilities on parties, including discussions about their claims and potential settlement, initial disclosures, and “any issues about preserving discoverable information.” The parties must also collaborate in good faith on a proposed discovery plan that they must submit to the court. The plan must outline, among other things, the details of exchanging the initial disclosures, the subjects of and schedule for discovery, and issues involving discovery and the preservation of electronically stored information (ESI), including the form for production and privilege.
Despite these clear obligations and their duty of cooperation, too many lawyers still don’t approach the meet-and-confer with the diligence and preparation required to make the most of this opportunity.
Here are 10 steps that you can take to make your conference effective, which, in turn, will help you streamline your entire eDiscovery process, set the stage for a collaborative relationship with opposing counsel, and potentially drive down your discovery costs and reduce the risks of disputes down the road.
1. Create a timeline of the case so you can isolate the right time periods for collecting data.
2. Start building a list of keywords relevant to the issues in the case.
3. Identify the relevant custodians who have access to information you need (and immediately send them a legal hold notice). Ask custodians to help you identify potential data sources and keywords that you may not have considered. Follow up with your custodians periodically to ensure that they are complying with the legal hold.
4. Look to your data map for potentially discoverable information. How large is the potential universe of relevant data? Where is this data stored, and how difficult will it be to retrieve it?
5. Assess whether any potentially relevant data might exist in unusual locations or formats. Be sure to consider cloud storage, remote servers, archives, mobile devices, and other potential offsite data sources—especially those that might implicate global data privacy rules. If you don’t have this information before the conference, you may agree to collect data that you can’t locate or that is so burdensome and costly to collect that it outweighs the value of the information.
6. Determine whether any third parties might have potentially relevant data; if so, discuss with the third party how to ensure that their data is preserved.
7. Make sure that you have turned off all automatic delete functions and paused all records retention protocols that might affect your potentially relevant data.
8. Determine what methods you will use to process, search, review, and produce your data. For example, will you use data-reduction technologies, such as deduplication? Will you deploy technology-assisted review or other data analytics tools? What metadata do you plan to produce? What production format will you use?
9. Plan to ask for a Federal Rule of Evidence 502(d) order to protect yourself from the inadvertent production of privileged documents; consider whether you need to ask the court for a protective order for any trade secrets or other sensitive and confidential information.
10. If you aren’t an expert in all things data and eDiscovery, ask a representative from your eDiscovery provider or IT team to join you at the meet-and-confer; they can help you spot issues as you jointly prepare the discovery plan.
For more tips on how you can make the most of the Rule 26(f) meet-and-confer, get in touch.