Comparing Rule 26(f) Discovery Plans

Rule 26(f) discovery plans can take many forms. Let's compare these examples freely available on the web from the Eastern District of North Carolina; the District of Minnesota; the Western District of Texas; and a form on the site for the District of New Jersey.

1. Name and addresses of the participating attorneys. The D.N.J. form specifies that the addresses, phone numbers, fax numbers (?), (but not emails) of the attorneys at the meeting be listed. However none of the other examples list precise contact information for the named attorneys.

2. Case description. The template from New Jersey requires that a description of the case be given along with the causes of action and defenses. This is omitted from the North Carolina and Texas plans, but included in Minnesota which also lists the jurisdictional basis of the case and 1 to 3 page factual summaries of the claims and defenses.

3. Settlement. The D.N.J. form specifies that monetary and non-monetary offers and demands be listed. Texas indicates that settlement discussions took place, but does not mention amounts or other offers. North Carolina simply refers to the fact that a settlement may be facilitated by a mediator. Minnesota does not refer to a settlement but does include a spot for listing the damages amounts.

4. Rule 26(a) required disclosures. The New Jersey form asks the parties to indicate if required disclosures under FRCP 26(a) and if any problems were encountered. The other districts list dates by which the FRCP 26(a) disclosures must take place and when expert reports required by FRCP 26(a)(2) must be exchanged.

5. Discovery subjects and phases. In the D.N.J. form litigants are asked to describe the discovery subjects and state whether or not discovery will take place in phases. In the filing from Minnesota the two parties each state their own positions about whether or not discovery should be conducted in phases or limited to certain issues, using citations to case law and the Manual for Complex Litigation to bolster their positions. The defendant both proposes a discovery schedule and indicates the number of document requests, interrogatories, and depositions that will be permitted. The North Carolina plan just gives a laundry list of discovery subjects: claims under the ADA; alleged damages; affirmative defenses; other issues; expert disclosures; and the catch-all, "all other matters that will reasonably lead to the discovery of admissible evidence." - but does not discuss phases. Texas does not specifically list subjects or refer to phases.

Goodness it's late! I'll continue this review tomorrow night.

The Intent and the Reality of the FRCP

Mary Mack, former Corporate Technology Counsel with Fios, Inc., was recently appointed the executive director of ACEDS. People planning to acquire the ACEDS eDiscovery certification might be interested to know that Mack is the author of A Process of Illumination: The Practical Guide to Electronic Discovery. While the edition I have was published in 2008, it could still serve as a good guide to the ACEDS perspective on eDiscovery.

In the first chapter of the book, "What Happens During Electronic Discovery?", Mack includes a chart with three fields "Description", "Intent"; and "Reality" for a dozen different Federal Rules of Civil Procedure related to eDiscovery: Rules 16(b); 26(a); 26(b)(2); 26(b)(5); 26(f); 33(d); 34(b); 37(e); 37(f); 45; and Form 35, in the context of how they were amended in 2006. For example on FRCP 26(f):

Description: Requires all parties to sit down together before discovery begins to agree on some form or protocol.

Intent: Rule encourages uniformity, structure and more predictable motion practice.

Reality: Opportunity to shift preservation costs if prepared for these discussions; otherwise opportunity to get painted into a corner.

The chart is a very good thumbnail sketch of how the FRCP applies to FRCP issues.

If you're looking to the book of a guide to her overall philosophy on eDiscovery, note that Mack begins her book emphasizing the need to issue a hold to preserve ESI as soon as litigation is threatened. She quotes Laura Kibbe, an ex-ediscovery counsel at Pfizer, advising 'Don't play hide the ball . . . Negotiate scope and need early on." She describes ESI as being multi-dimensional - not under the control of a single user, and usually not capable of being destroyed without a trace. Ken Withers of the Sedona Conference is quoted to endorse the importance of effective eDiscovery lowering costs, "More money is probably spent litigation e-discovery problems than in litigating class actions." ESI is fluid and pricey, and must be addressed with urgency.