Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on July 30, 2017. Go to https://www.lawinstitute.org/ to sign up for it.
The course on Rule 26(f) conferences and meet & confers is taught by David Kessler, the chair of a law firm's e-discovery practice group; and Michael Berg, counsel for the DISH Network, LLC in charge of electronic discovery and information governance.
It is a required under the Federal Rules of Civil Procedure and state rules provide for similar conferences. The 26(f) is an opportunity to resolve technical problems and resolve discuss what is at stake in the litigation. It is not necessarily a single meeting. There are likely to multiple communications about the subjects to be addressed under Rule 26(f). A discovery plan and report must be sent to the court before the 26(f) conference. Meet and confers may take place on a weekly basis during the discovery period. Disputes should be resolved before they reach the court if at all possible.
The Rule 26(f) conference is more far reaching than a typical meet & confer. The 26(f) will lead to agreements that are more binding.
A meet & confer requires the attorneys to be prepared on both the facts and their opponents' positions. They need to know the standard of reasonableness. Both sides should try to reduce the transactional costs of litigation. A good amicable resolution by the parties is almost always preferable to bringing problems before the court. It will be difficult for a judge to understand the complexities of discovery issues facing particular parties. Judges should however be engaged early about issues they may need to address. Many lawyers are fearful of bothering judges too much about discovery. A good attorney will be able to determine when an opponent is being unreasonable and the time is right for a judge to intervene.
Whatever is discussed should be documented so it can be put in a case management order later.
A really important part of the 26(f) is to develop trust with the opposing counsel. Attorneys should ask themselves if additional claims, defenses or parties will come up. There are a lot of transactional issues which can be broached at the beginning. Phased discovery may be appropriate. It may be possible to limit discovery by taking some subjects off the table, but this should be discussed in advance with the client. Kessler is advocate of getting problematic issues out in the open early on. This is something that courts appreciate.
FRE 502 concerns the waiver of privilege - there is nothing controversial about entering into an agreement about the clawback of privileged documents, and this can be accomplished quickly at the 26(f)..
Non-complex issues can be resolved and put aside so only a few specific issues can be brought to the court.
The parties should discuss the scope of the case - what is relevant and what is not. The parties should discuss data sources that either won't be preserved or won't be searched. It's harder to discuss a data source that won't be available later on in the case.
It may be a good idea to bring a practice support analyst from a firm or vendor. The meet & confer may be a good time for specialists to iron out technical problems. It's preferable to have attorneys who are technical proficient.
The meet & confer process is usually handled by the attorneys for each party, but the client has to be knowledgeable about this issues to be discussed beforehand. The lawyer cannot disclose certain things without the permission of the client.
Many of Kessler's clients don't like communicating directly with opposing parties. They are more likely to get caught up with emotional issues.
Burg observed that the role of the client is to provide the attorney with necessary information. They need to open and honest.
Cooperation is emphasized in meet & confers. It came to the fore with the Sedona Cooperation Proclamation. Cooperation at its heart means that one is not doing anything with regards to an opponent that is the for purposes of delay or harassment. Cooperation means that the parties should minimize the costs of getting to what is really important in the case. Cooperating on discovery should be done in such way as to not undermine advocating for the position of the client. The lawyer needs to explain to a client why providing information in discovery is to their advantage in the case. The lawyer should point out that if the opposing party doesn't reciprocate they will look uncooperative in the eyes of the court.
Cooperation involves staying focused on the issues in the case. By being more prepared than an opponent - with aggressive transparency - an attorney can drive the conversation for their client.
Some clients are concerned that by volunteering information they are not required to produce, they will be forced to disclose more and more as time goes by. Attorneys can suggest a strategy of gaining procedural advantages in order to force a favorable settlement.
It's important to separate transparency from cooperation. Cooperation requires the parties to participate equally.
Preparing for a 26(f) conference is a multi-stage process. One should never discuss something that has not been vetted with the client, and when one does not have all of the facts.
Problems can arise at 26(f) conferences when both sides have not done sufficient investigation. It may be a good idea to disclose search terms at the 26(f) conference, but an attorney may be hesitant if they don't know what data will be returned with these terms. Discovery should be focused on getting important documents with the least cost and effort.
Adequately preparing means knowing the scope of the claims, who the relevant custodians are, and understanding the relevant data systems.
It's probably a good idea to disclose not reasonably accessible data sources at the 26(f) conference. Rule 26(b) addresses not reasonably accessible data. If there are locations that an attorney knows are going to be contentious and cannot be accessed easily, the issue should raised earlier rather than later with the court.
A party is not required to disclose search terms or the use of TAR at the 26(f) conference, but many attorneys choose to do so.
Attorneys often skip carefully reviewing the complaint and the answer in determining the scope of the case.
Money should not be regarded as the only issue in proportionality.
Parties who are unprepared will either fail to reach any agreement, or make an agreement without understanding the effect of it.
Checklists should be not be reviewed by rote. There may be unique circumstances for a particular case that justifies deviation from standard practices.
The most successful conference will follow an agenda, so parties don't waste time fighting over one or two issues. It's a good idea to have the conference in person, because it's harder for parties to become uncivil with one another.
Issues should be framed out ahead of time, and documents can be exchanged with the opposing party to facilitate this process.
Courts look unfavorably on letter writing campaigns, but it is nevertheless important to document what the parties agreed to. Some attorneys like to tweak their account of a discussion in a letter, but this isn't necessarily a good idea. It's important to appear as objective and reasonable as possible before the court.
Parties should always keep the conversation going and assume that their opponent is acting in good faith. Litigation shouldn't be about discovery - a party that's confident about its case need not worry about exchanging information.