Bill Hamilton's Seven Deadly Sins of the Rule 26(f) 'Meet-and-Confer' Conference

**This article was published by Bill Hamilton, a partner at Quarles & Brady and Chairman of the Association of Certified E-Discovery Specialists (ACEDS), www.aceds.org, the member organization for professionals in the private and public sectors who work in the field of e-discovery.**

 

Federal Rule of Civil Procedure 26(f) requires parties in litigation to "…confer as soon as practicable … [and to]…state the parties’ views and proposals on …any issues about disclosure or discovery of electronically stored information….."  Proper handling of these "meet and confer" sessions about electronically stored information (ESI) and e-discovery is crucial to a winning litigation strategy. Don't think of the session as a procedural formality and just go through the motions.  STOP!! Take a deep breath and think.  The Rule 26(f) conference is where you begin the management of the opposition, and sets the structure of a case's e-discovery process. Your goal is to minimize your e-discovery costs and risks and to make sure you will be able to get the data you need from the opposition.

 

Avoid the Seven Deadly Sins of the Rule 26(f) conference and you’ll be well on your way to making e-discovery work for your case.

Deadly Sin #1: Failure to Set the Agenda. Come prepared to the Rule 26(f) conference . . . and make sure your opponent is prepared. Write a letter to the opposing counsel saying what you expect to accomplish at the conference, what information you will bring to the conference, and what information you expect from the opposition. Allowing the opponent to come to the conference unprepared wastes time and money, and impedes achieving your conference goals. If the opposition shows up at the conference “empty handed,” let the opposition know that you will advise the court of any further failures. Additionally, re-schedule the conference immediately. You need to insist on a genuine, meaningful Rule 26(f) conference for the very reasons the opposition is intent on avoiding it. Don’t let them escape this opportunity for you to structure electronic discovery in a way that works best for you.

Deadly Sin # 2: Failure to Manage Preservation.  While your instincts at the beginning of litigation may be to keep information close to the vest, disclose your preservation decisions at the Rule 26(f) conference. Be prepared to explain them. You cannot preserve all client data. Unnecessary preservation takes time and money and is wasteful. For example, it is probably not necessary to preserve forensic images of laptops and desktops or Internet browsing histories. It is also unlikely that back-up media containing unimportant and cumulative data will be needed. Disclosure allows you to sleep at night. If unpreserved data suddenly becomes relevant, your initial disclosure will help you avoid or minimize judicial sanctions. Demand the same from your opponent. Their data is part of your case. Make sure it is secured.

Deadly Sin # 3: Failure to Corral E-Discovery Limit and phase e-discovery. E-discovery is typically not an "all at once" game. Most cases can only afford so much e-discovery. E-discovery is bounded by the dollar value and importance of the case. ESI volume is often staggering. Present a sensible plan to corral the important data. Only a handful of documents are likely to be used at trial. Why process and review the data of 20 company employees who might have some marginally relevant ESI when a few key players can be identified quickly? Suggest starting with these two or three key employees and building from there. Reach agreement on a flexible, rolling e-discovery plan. Include this phased plan in the scheduling order that is entered pursuant to Federal Rule of Civil Procedure 16. Be sure to disclose the locations of electronically stored information that you consider not reasonably accessible under Federal Rule of Civil Procedure 26(b) (2) (B). Be prepared to defend your claims. When the opposition declares ESI locations not reasonably accessible, put them to the test. Don’t accept generalized representations of counsel. Technology moves on. Much of what was once thought not reasonable accessible is today readily available. Demand the details, and consult an expert on ESI accessibility.

Deadly Sin #4: Failure to Set Search Expectations.  Make sure your opponent knows you will insist on search quality and demonstrable, statistically valid recall. High recall means the search is pulling most, if not all, the responsive documents. The opposition will normally be attentive to search precision and not pulling false positives, i.e. unresponsive documents. Don’t let the opposition test for precision and not test for recall. Find out how the opposition will search the data and whether the opposition will employ manual searching or automated search tools using key words and concept filters. Make sure your opponent knows that search quality is your focus. It is your job to deter sloppy, casual searching for the data you may need to win your case. Your client deserves the best possible data, not just what the other side happens to find. Be sure to meet your own search standards or you will not be able to effectively call the opposition to task. Don't settle for a "don't ask, don't tell" strategy and blind reliance on what the opposition produces.

Deadly Sin #5: Failure to Specify the Production Format. Establish the production format. You usually get only one bite at the production apple. Make sure you get the data in a format and with a load file that works for the technology you will be using. The opposition will not know how you need the data delivered unless you tell them. Don’t wait for delivery and then complain. You should reach agreement on how you want the electronically stored information from your opponent produced and how you will produce your own. Do you intend to produce data in "native" (meaning a copy of the original electronic file) or in TIFF or PDF formats with load files containing extracted searchable text? What metadata will be produced? Discuss how each side's data will be organized and delivered and what metadata will be produced. If you are using a vendor, get the vendor’s delivery specifications and provide it early to the opposition. Don’t let the opposition decide what format is reasonably useable for the case.

Deadly Sin # 6: Failure to Protect Against Privilege Waiver from Inadvertent Production. Make sure to get the entry of a court order, under Federal Rules of Evidence 502, protecting you against inadvertent disclosure of privileged documents and providing that any determination of non-waiver arising from an inadvertent production is also binding on state court proceedings. Negotiate a written protocol with the opposition as to the procedures to be followed if a privileged document is discovered to have been inadvertently produced. Mistakes happen even after rigorous - and expensive - review and double checking. Don’t think your production will always be flawless. The greater the volume of ESI, the greater the chance of mistake and error. Neither automated searches nor human reviewers are 100% perfect.

Deadly Sin # 7: Failure to Document. Don't let what you won at the Rule 26(f) conference get lost in the fog of competing - and faulty - memories. Confirm in writing all the agreements and understandings. No one will recall a year later what transpired unless you confirm it in writing. Memorialize the conference as you would a settlement agreement or a contract. This documentation is your roadmap to a successful case.

 

Avoiding these Seven Deadly Sins will help you take control of your case and manage e-discovery. Taking control means taking control of the Rule 26(f) conference and achieving your e-discovery goals, a crucial component of any winning strategy.
 

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**Bill Hamilton will be a featured speaker at the ACEDS 2011 Annual E-Discovery Conference on March 23-25, 2011 at the Westin Diplomat in Hollywood, Florida.  For more information and to sign up for the Conference -- a chance to learn the ins and outs of e-discovery through hands-on experience, practical guidance and interactive learning from 28 experts in the field -- visit /conferencewww.aceds.org** 

FRE 502: A Reasonable Step to Reduce Costs?

I’m sad to report that despite the political hype, FRE 502 is not likely to provide you with any substantial cost savings related to your electronically stored information ("ESI") and document productions. This is because FRE 502 does not eliminate the need for one of the largest discovery costs - namely, the dreaded page-by-page document review (not to mention the ensuing carpal tunnel of the finger). 

FRE 502 merely codifies the current law of the majority of federal courts on the inadvertent production of privileged material – i.e., there can be no waiver of privilege on inadvertently disclosed documents if you took reasonable steps to prevent and rectify the disclosure.  But what reasonable steps? Although omitted from the law itself, the FRE Advisory Committee informs us that: 

A party that uses advanced analytical software applications and linguistic tools in screening for privilege and work product may be found to have taken reasonable steps to prevent inadvertent disclosure.

And that may actually be helpful, but for the fact that the federal courts have long recognized that such screening comes with limitations and risks because the proper selection and implementation of such technology involves both legal and scientific knowledge.  Is it really a reasonable step to use methods judicially deemed "not foolproof?"

Moreover, cases interpreting the new FRE 502 reiterate and do not eliminate the need for attorneys to conduct a page-by-page privilege review:

Rhoads Industries, Inc. v. Building Materials Corp., No. 07-4756 (E.D. Penn. Nov. 14, 2008): upheld privilege only on inadvertently disclosed documents that were manually reviewed and logged by an attorney.  

Relion, Inc. v. Hydra Fuel Cell Corp., 2008 WL 5122828 (D. Or. Dec. 4, 2008): held that privilege was waived because, even though the issue of inadvertent production was raised by opposing counsel, the holder failed to conduct a page by page review.

Bottom line: keep flexing that finger – at least for now!