The Rule 26(f) Meet & Confer – It’s more than a formality
It’s that time again – time for the dreaded Meet and Confer. Instead of regarding it as a mere formality to check off the list, approach the Rule 26(f) meet and confer as a vehicle for conducting the necessary due diligence at the beginning of your case, specifically as it relates to ESI. Attorneys often ask me, “What do I need to know about eDiscovery?” They don’t realize that it is more important to prepare for eDiscovery than to worry about what you don’t understand. Let me explain.
For each case that comes through the door, litigators must tackle a distinct area of law, including medical malpractice, personal injury and product liability. Litigators don’t necessarily need to be an expert in any particular area of law; rather, a litigator needs to be a master of adaptation and persuasion. Likewise, in regard to eDiscovery, attorneys do not need to be experts in technology, but attorneys do need to understand the available tools used to prepare for inevitable eDiscovery challenges.
Before walking blindly into the meet and confer, assemble your litigation team. In addition to including your paralegal and your firm’s litigation support team (if you have one), consider working with a discovery consultant to assist with forensic collection needs. You may think that this is overkill, but it is important to arm yourself with experts who can identify the tools that provide cost savings and efficiencies – it is your duty to your client. Efficiencies can be provided in many ways, including by retaining an expert to handle the forensic collection, agreeing on search terms with counsel to limit the data collected, using predictive coding, and reviewing documents in a hosted review tool. Think of these tools in terms of the economic cost benefit – investing in an expert and/or technology versus burning up precious billable time at the expense of your client, or, worse yet, writing off time at the expense of your firm’s bottom line.
Once you have your team in place, outline your road map. Determine what you already know and what information you still need. One of your first concerns should be preservation. If you are taking on the case at the start of litigation, make sure to review preservation and legal hold issues. Remember, the duty to preserve arises when a party has notice that the evidence is relevant to litigation, or when a party should have known that the evidence may be relevant to future litigation. Therefore, before discussing preservation or any other ESI issues with opposing counsel, the first step is to meet with your client to determine the who, what, where and how: who are the custodians of relevant information; what is their information retention/destruction policy; where is the ESI stored; and how is it managed?
The goal is to have a working knowledge of your client’s ESI. Only then can you be prepared in the topics that you and opposing counsel must discuss at the Rule 26: preservation, systems that contain discoverable ESI, search and production, phases of discovery, protective orders, and opportunities to reduce costs and increase efficiencies. Because you have prepared with your client, these topics should be easy to discuss. You will know the necessary questions to ask opposing counsel and, more importantly, you will have the answers you need to properly prepare for discovery and to estimate the time needed. Also, remember that the court’s primary concerns are cooperation and proportionality. The proposed amendments to the Federal Rules make these themes even more prominent than they already are. The more you can cooperate with your opposing counsel, the more you will keep costs down and succeed in achieving efficient discovery. To that end, the more prepared you are at the outset, the easier it will be to cooperate with opposing counsel.
The meet and confer will be wasted if you have not first met with your client to gain an understanding of your client’s ESI. Additionally, the importance of assembling your litigation team should not be underestimated. This blog cannot possibly discuss all of the obligations or challenges you might face with eDiscovery; however, my hope is that you will no longer feel overwhelmed or as though you have to be a technology expert. Remember, the keys to successful eDiscovery are preparation, communication, cooperation and proportionality.