eDiscovery Rules: What's Really Required for the "Meet and Confer"?
August 30, 2011
Almost any litigation professional who works with eDiscovery is aware of the Rule 26(f) "meet and confer" conference, but many don't fully understand its parameters and how it affects ESI. What exactly is the "meet and confer" and what are some of its implications in regard to eDiscovery?
What is the "Meet and Confer"?
The "meet and confer" conference is now a requirement in Federal cases as of the rules changes of 2006 to the Federal Rules of Civil Procedure. In addition to Rule 26(f) for Federal cases, an increasing number of states now have (or are contemplating) a similar rule. It provides an opportunity for the parties in a lawsuit to discuss discovery and create a plan for the sharing of information during and before trial.
The goal of the "meet and confer" rules is to provide a basis for an open exchange of information and a productive dialogue about discovery-related topics. Even in the antagonistic world of litigation, it is possible to reach an accord on the details of discovery by conforming to the requirements of these rules and of the discovery process.
What are the Parameters of the "Meet and Confer"?
Rule 26(f) states that attorneys must meet and discuss "any issues about preserving discoverable information" as well as developing a "discovery plan." It also specifies that:
- Attorneys must already be aware of the location and nature of their own clients' computer systems and discoverable documents, and must be prepared to ask questions about their opponents' ESI, electronic systems, and data preservation actions.
- In order to be fully prepared for this conference, an attorney needs to know as much as possible about the location, volume, and logistical challenges that surround the collection of ESI, as well as the client's preferences regarding privilege, protective orders, and document review.
- The more informed the attorneys are on each of these counts, the more capable they will be to address relevant issues, streamline the discovery process, and minimize eDiscovery costs.
- Attorneys may exchange either in-depth or limited information about the legal holds process.
- The result of the "meet and confer" conference is to establish a comprehensive discovery plan and lay the groundwork for the discovery aspects of the rest of the proceeding.
Tomorrow, I’ll go into more details about the specific topics to be covered at the Rule 26(f) conference. Oh, the anticipation!
So, what do you think? Do you have any experience with Rule 26(f) conferences that went awry or cases where having a Rule 26(f) conference would have helped? Please share any comments you might have or if you'd like to know more about a particular topic.