eDiscovery Rules: ESI Topics of the “Meet and Confer”
By: Doug Austin
August 31, 2011
Yesterday, we talked about the basics of the Rule 26(f) “meet and confer” conference, Today, let’s go into more detail about the topics that are typically covered during the “meet and confer”, and why.
The "meet and confer" conference focuses on the exchange of information regarding discovery and the creation of a comprehensive plan that will govern the sharing and privilege of ESI. Accordingly, the requirements of this meeting specify discussion of the following topics:
- Initial Disclosures: This exchange may be specific and detailed or very basic, depending on the needs of the case and the attorney's agendas. Proposed changes to the requirements, timing, or form of these disclosures may be discussed.
- Topics on which Discovery may be Needed: It may be easy to agree on subjects for which discovery is necessary, or it may require prolonged discussion to reach an accord. In some instances, time and expense can be saved by beginning with a single area and later expanding discovery to include other topics, if necessary. Known as "phased discovery", this can be a very effective choice, as long as it is conducted in a way that does not require duplication of effort in later phases.
- Format of Production of ESI: Although the actual discovery process may be conducted over weeks or even months after the conference, it's important to agree now on the format of production to prevent parties from accidentally converting files into a type that will later prove to be inconvenient or result in loss of data. This is especially important if one party has a request for a particular format.
- Privilege, Inadvertent Disclosure, and Protective Orders: Although we all strive to prevent disclosure of privileged information, it's important to discuss in advance the possible implications and a process for dealing with such an eventuality, if it should occur.
- Potential Deviations from Discovery Rules Requirements: In some cases, opposing attorneys will agree that they can accomplish discovery in fewer depositions than specified by Federal Rules or local rules. If so, this discussion and any related proposals should be part of the "meet and confer" conference so they can be incorporated into the discovery plan.
- Any Other Orders or Concerns about Discovery: From discovery agreements to questions or requests, almost any topic related to eDiscovery can be part of the "meet and confer" conference.
To get the most out of the "meet and confer," and to save time and expense, most attorneys will prepare an extensive agenda of the topics for discussion in advance of the meeting itself. Although there are many other topics that may be included in the conference, this list covers key requirements of the Rule 26(f) "meet and confer" conference and the discovery plan to be created there.
So, what do you think? Did you learn something that you didn’t already know about the Rule 26(f) "meet and confer" conference? If so, then we accomplished our goal! Please share any comments you might have or if you'd like to know more about a particular topic.