Meet early. Meet often.
Hardly any eDiscovery seminar concludes without one of the speakers – be it a judge, in-house counsel, or law firm attorney – addressing the importance of early and comprehensive discussions between parties. Specifically, Federal Rule of Civil Procedure 26(f) requires parties to meet and attempt to agree on a proposed discovery plan before submitting that plan to the court. This conference is an opportunity to proactively address common discovery issues and propose approaches to streamline the process and lower costs for both sides. Local scheduling orders or practice rules may also require parties to meet and confer at other times as well, such as prior to submitting any discovery motion. In short, in this post-2015 FRCP amendments era, the meet and confer is more important than ever.
Judges Demand eDiscovery Conferences between Parties
Judges are increasingly urging or requiring parties to meet and confer on thorny discovery issues. A quick search of judicial opinions reveals ample amounts of schooling in the importance of the meet and confer. These opinions were all issued in the last 30 days, showing how judges are wielding this sword to bring parties together.
For example, on April 6, 2018, Chief Magistrate Judge Paul M. Warner from the District of Utah expressed how he feels about the importance of a meet and confer. “The court considers a meaningful meet and confer to be essential to the parties’ obligation to secure the speedy and inexpensive resolution of this action.” Craft Smith v. EC Design, Case No. 2:16-cv-01235-DB-PMW (D. Utah Apr. 6, 2018). Magistrate Judge Warner went on to state that he would not consider further motions that did not contain a certification that the parties met and conferred.
Magistrate Judge Warner’s resolve on this issue is not an exception. In fact, with regularity, judges are encouraging or ordering parties to meet and confer on a broad range of eDiscovery topics: custodian lists, search terms, status of discovery, and development of a discovery plan. Sometimes, parties are even sanctioned for their refusal to meet and confer. Take these recent examples:
- Parties must meet and confer on a protective order, if requested by the Defendant. Raquedan v. Centerplate of Del., Case No. 5:17-cv-03828-LHK (HRL) (N.D. Cal. Apr. 13, 2018)
- Parties must meet and confer to develop search terms. Kimble v. Specialized Loan Servicing, LLC, Case No.: 16cv2519-GPC (BLM) (S.D. Cal. Apr. 6, 2018).
- Parties ordered to meet and confer on scope of discovery (which parties did and could not reach agreement). Ratner v. Kohler, No. 17-00542 HG-KSC (D. Haw. Apr. 5, 2018).
- Judge issued sanctions for a party’s “defiance and refusal” to meet and confer. Hauck v. Walker, Case No. C13-5729 BHS (W.D. Wash. Apr. 4, 2018).
However, case law is also bursting with examples where judges are disappointed with parties’ attempts to meet and confer. For example, in Raquedan v. Centerplate of Del., the judge stated:
“Well, whatever meeting and conferring took place between the attorneys following the January 24th court hearing (which reportedly included a face-to-face one hour meeting between lead counsel) did not produce a resolution of the discovery impasse. In fact, it produced no substantive discovery responses at all.”
Similarly, in Norkfolk S. Ry. Co. v. Judge Warehousing, CV416-265 (S.D. Ga. Apr. 12, 2018), the judge stated:
“What is clear, however, is that the parties have demonstrably failed to meaningfully meet and confer on these issues. The first issue was moot, and had the parties talked that would have been obvious. The second issue too could have been resolved without court intervention.”
How can parties avoid these trappings and engage in a meaningful meet and confer?
Rule 26 Conference Topics
Preparation is the key to a productive the Rule 26(f) conference, or any discovery related meet and confer. Ideally, parties will have collaborated on the agenda for the meet and confer, and exchanged proposed language, prior to sitting down in a conference room together. Further, counsel should enter the room informed and ready to make reasonable proposals and agreements with regards to each of the topics below.
- Preservation Efforts. Parties should discuss the status of each side’s litigation hold. How broadly is data being held – subjects, devices, people, and locations? What are the procedures being used to track holds? Have automated deletion programs or other IT upgrades been suspended to avoid loss of data?
- Initial Disclosures and Scope of Discovery. Rule 26(a)(1) requires parties to disclose various information before formal discovery requests are made. The initial disclosure deadline arises quickly after the complaint and answer are issued. The Rule 26(f) conference is a good early opportunity to ask questions about the information contained in the initial disclosures and set the stage for scope of discovery discussions. This is where a deep understanding of data volume, sources, types, locations, custodians, systems, and potential data collection difficulties will be advantageous. Similarly, parties will want to discuss searching methodologies, such as keyword lists and use of predictive coding.
- Phasing of Discovery. Parties may list specific topics and reach agreements on timing for production of data. To most effectively accomplish rolling productions, parties must have a comprehensive understanding of the likely issues in the case.
- Production Format. Parties needs to know the desired production format at the outset of discovery to prepare for data processing and review. Be prepared to discuss the handling of metadata, extracted text, and images. Sometimes parties will also ask for all native files or native files for specific file types, such as spreadsheets. Lastly, be ready to talk over production format for nonstandard data sources, such as databases.
- Privilege Claims. Parties must address the possibility of inadvertent production of privileged or work product protected documents. Most courts encourage parties to adopt a clawback agreement, which provides for the return of inadvertently produced materials without the waiver of privilege. Judge Andrew Peck (Ret.) issued a helpful model Federal Rule of Evidence 502 order that parties will want to reference in drafting clawback language.
Agreements reached at the Rule 26(f) conference should be memorialized in the discovery plan, which is ultimately submitted to the court. Importantly, the court should be made aware of issues the parties can and cannot reach agreement on, so that he or she can intervene if necessary.
To sum it up, the Rule 26(f) conference sets the tone going forward for cooperation between parties on discovery issues. Should discourse arise during early conversations, discovery is likely to be a rocky road.