E-Discovery for Dummies Outline - Chapter 8


8. Managing e-Discovery Conferences and Protocols a. Complying with the Meet-and-Confer Sessions i. FRCP 26(f) ii. M&C required unless there’s an exemption under 26(a)(1)(B) or court orders otherwise. iii. FRCP 26(f)(2) 1. Nature and basis of claims and defenses. 2. Settlement chances 3. Required disclosures 4. Preservation Issues 5. Proposed discovery plan a. Changes in timing or form of disclosurs b. Subjects for discovery; when completed; any limitations c. Form of Production d. Privilege issues e. Changes or limitations on suggested orders 6. Form 35 Report of Parties b. Preparing for Meet-and-Confer Session 1. Preservation 2. Form of Production 3. Privilege or protection issue 4. Any other issues c. Preservation i. Who are the custodians? ii. Accessible or stored on backup archive? iii. Cost of Retrieval? d. Form of Production i. Autotech Techs Lid. V. P’ship v. Automationdirect.com metadata request refused because not requeted earlier. e. Privileged or Protected ESI i. Be prepared to compromise with deal with inadvertent disclosure. ii. Quick Peek Agreement – snapshot view of opponent’s ESI before constituting waiver of privilege f. Other Issues i. Search protocols ii. Accessibility iii. Cost or burden of restoring inaccessible ESI. g. Timetable i. Should be agreed upon at the M&C and if reasonable the court will approve and issue a scheduling order. ii. 30(b)(6) witness should be thought about at the M&C. Doesn’t need direct knowledge of case; must know systems, platforms, ESI locations and company policies. iii. Can be sanctioned if not prepared. 1. Ideal Aerosmith v. Acutronic USA no reason why the witness could not prepare himself through documentation prepared by consultant or conversations with him.


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