Rule 26(f) of the Federal Rules of Civil Procedure requires that parties meet early in the litigation to try and agree on a discovery plan. To make Rule 26(f) work, the Sedona Conference—a nonprofit group of leading judges, scholars and attorneys focused on improving the practice of law—issued a 2009 proclamation encouraging parties to cooperate in the discovery process. Still, many lawyers show up at the scheduled 26(f) conference without a detailed understanding of their client’s ESI or a specific plan for discovery in mind.
That can be a mistake.
Taking the opportunity to create a detailed discovery plan in preparation for a 26(f) meet and confer can make e-discovery more effective and save clients time and money in both the most sophisticated and basic litigations. It can also help reduce discovery disputes and—most importantly—get parties to the litigation’s most relevant information faster.
To get more out of a 26(f) conference, participating attorneys need to:
- Plan to be open and honest about client data and data-systems
- Create methods of handling disagreements
- Understand and evaluate opportunities for cost savings
Making “Meet and Confers” Count
Meaningful meet and confers don’t just happen. Instead, attorneys need to come to the 26(f) conference armed with a substantive discovery plan proposal. To make a real plan, attorneys need to understand e-discovery practices and their clients specific ESI before discovery begins.
Attorneys should be up to speed on available e-discovery production options. They need to understand the benefits and drawbacks of each current e-discovery method. Attorneys also should understand how each method’s issues relate to the specifics of the litigation and the details of client data and data storage systems.
Therefore, attorneys need to investigate their client’s data early in the litigation. The also need to know their client’s IT systems and should determine the key data custodians who control the information relevant to the dispute ahead of time.
Early contact helps make sure that proper litigation holds are in place. It also gives attorneys the time needed to interview the data custodians and select and test data search terms. Identifying the key set of relevant data early helps attorneys streamline the discovery process. It also helps put the focus on the litigation instead of e-discovery.
Taking the time to make a detailed discovery plan has multiple benefits. It both saves costs and gets attorneys up-to-speed faster. Judges appreciate the collaborative effort, which builds good will. And a detailed plan that discloses information and processes early forecloses later disputes by opponents who fail to make the same efforts.
Practical Strategies for Meaningful Meet and Confers
Making a detailed discovery plan before a 26(f) conference takes time. The disclosures involved can challenge parties who are more comfortable with holding their cards close to the vest. But the cost savings that cooperative discovery offers—and the judicial goodwill it creates—make it an important tool in the e-discovery arsenal.
For the best 26(f) outcomes, counsel should be prepared to:
- Agree to be open and honest. Plan to discuss the process used to identify relevant sources of information including information regarding the client’s IT infrastructure, data systems investigated and custodians interviewed. Share search terms and results. Explain the details of litigation holds.
- Create a method for handling disagreements. The rules do not require that parties compromise on valid disputes, though parties must try and make a good faith effort to resolve any disputes that do arise before filing a motion to compel. To minimize disputes, make sure any disagreement is supported by a defensible position.
- Understand and evaluate opportunities for cost savings. Strive to reach an agreement on ESI stipulations early on. Consider whether it’s possible to lessen the burden of creating privilege logs or eliminate them altogether. Discuss the most effective manner of production considering the client’s system and type of case, and be willing to be flexible and use multiple production methods in any given matter.