Electronic Discovery Institute Course - Class 10 - Expectations of the Court: Rule 16 & Rule 26(
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 August 12, 2017. Go to https://www.lawinstitute.org/ to sign up for it.
This course on court expectations in Rule 16 and Rule 26(f) conferences is taught by Judge Xavier Rodriguez of the Western District of Texas; Magistrate Judge Elizabeth LaPorte of the Northern District of California; and Christopher King , the head of its electronic discovery practice at Dentons.
King said that the Rule 26(f) conference are conducted for the purpose of discussing the phasing of discovery, the form of production, search methodologies, and the types of ESI. Judge Rodriguez said the Rule 26(f) (or meet and confer) must take place 21 days before the first conference with the judge.
The parties should focus on the scope of discovery. Lawyers may not have much information about the scope of ESI to get very specific at the Rule 26f conference, so they may agree to meet later to discuss a ESI protocol. A clawback order under FRE502(d) should also be discussed. Counsel should also discuss limits on the number of depositions and interrogatories. Judge Rodriguez said that most judges will expect a conversation about who the likely custodians are and whether or not the tiering of discovery is a good idea.
Judge LaPorte said her court has a checklist for the 26(f) conference. It includes the scope of preservation and putting discovery outside a certain date range off limits. Under FRCP 1 the parties are encouraged to cooperate with each other. The parties should try to reach agreement on as many issues as possible.
The key to preparing for a Rule 26(f) conference is early case assessment - or getting on top of the facts of the case, according to King. ECA when done right involves a lot of work early in the case, which will pay off in the long run, especially in terms of cost effectiveness.
Judge LaPorte said each party should be familiar with their own information systems. The parties should also consider how the case can best be resolved, whether through settlement or at trial.
During initial disclosures, parties have to disclose the names of parties involved in a case, the location of documents they will use to support their claims and defense They also need to disclose insurance coverage related to the case. The disclosures must take place 14 days after the meet and confer. Judge Rodriguez thinks it would be more helpful for this disclosure to be required at the same time as the meet and confer. The goal is to reach a just and speedy determination of the issues at hand. Initial disclosures include a reasonable calculation of damages. These calculations must be updated during the case.
ESI disclosures usually don't come during the initial disclosures. If a judge requires them, a party may consider asking to defer them until an ESI protocol is agreed to.
A discovery liaison may be appointed in many jurisdictions. Its role will vary from case to case. Generally, a liaison is someone with technical knowledge about the client's systems and data. The person should be prepared to answer the judge's question about the ESI to be involved in the case. Counsel usually don't educate themselves sufficiently on these issues, but liaisons are not required in all cases. Someone from an IT department may be the discovery liaison in a case.
Judge LaPorte said that a discovery liaison can suggest alternative and cheaper means of obtaining discovery
In addition to counsel, vendors or technical specialists may participate in Rule 26(f) conferences. Judge Rodriguez says that there is a debate on the wisdom of bringing IT professionals to the meet & confer. Some attorneys worry that they will disclose too much information.
Privilege issues at Rule 26(f) conference concern whether or not the parties should enter into a FRE 502 clawback order. The preparation of a privilege log may be very time consuming. Some jurisdictions encourage the preparation of a categorical privilege log. Protective order can be prepared that restrict who can see certain documents.
There is a movement to speed up the discovery process. The tiering of discovery sometimes starts with the person most knowledgeable about the case. Phased discovery is the most effective way to speed up the process. It involves addressing different issues one by one. The first phase might consider foundation documents - the production of due diligence documents.
Judge LaPorte noted that her court has a model electronic discovery order. The parties can agree on the number of hours of depositions to be taken, and anything which may be helpful to the resolution of the case.
Judge Rodriguez said the use of TAR should be discussed at the Rule 26(f) conference. The use of keywords can also be discussed. Counsel may not have had sufficient time to discuss the use of TAR with their client, or they may not wish to educate the other side about the advantages of predictive coding.
The question of how transparent a party should be at the Rule 26(f) conference involves asking about the judge's expectations. Information about how the judge handles these conferences should be available on their site. Parties should check on whether or not the judge has endorsed the Sedona Conference proclamation. Judge LaPorte said there was no duty to waive privileges, but parties would usually be wasting time conducting discovery about discovery. Judge Rodriguez said that transparency was a means to achieve the cost effective resolution of a case. A party will be held accountable for deception.
The parties should prepared for the Rule 16 conference so the discovery can be conducted cheaper and faster. The goal of the 26(f) conference is to reach a plan that resolves a case justly, quickly and inexpensively. Parties should consider what ESI can be released from legal holds. Judge LaPorte warned parties not to make misrepresentations to a judge when they did not have sufficient knowledge.
Rule 16 conferences usually take place with all parties in the courtroom. The parties will be asked to discuss the proportionality of the discovery, and whether or not a clawback agreement will be entered into. The conference may also be referred to as a case management conference. The Rule 16 conference is a scheduling conference - it is the first time the parties appear before the court. Some judges may set a trial date at the conference.
The goals of the Rule 16 conference may vary from judge to judge. It's important to research the judge and find out how they handle these conferences. Judges may have forms that they expect the parties to complete in advance.
The 2015 amendments to the Federal Rules of Civil Procedure expedited most deadlines by 30 days. The parties are encouraged to discuss the case early on. Proportionality has been assigned greater importance.
Judge Rodriguez likes to keep costs to a minimum and will not always require out of town clients to attend the Rule 16 conference. He said that it may be a good idea to have an IT professional present at the conference.
Rule 16 requires the discussion of the preservation of ESI, the form of production, and the inadvertent production of privileged documents. The merits of the case can also be considered. The judge should try to discourage wasteful practices.
Counsel can use the Rule 16 conference to their advantage by establishing a relationship with the court. It provides an opportunity to begin implementing a strategy for the case. An attorney may want to raise issues in a particular order. Statute of Limitation defenses may be considered before other discovery issues. It may possible to conduct sampling of some ESI sources, like laptops, in order to see whether some discovery is necessary. Judges may ask for a detailed theory of the case and ask detailed questions about how many witnesses will be called, how many depositions will be taken, and how long it will take the parties to get the case ready for trial.
Judge LaPorte said that if a judge can't resolve some issues at the conference follow up letter briiefs may allow her to reach decisions. Judge Rodriguez said that judges would expect to see a discovery plan from both parties, if they had not agreed to a single plan. Questions about email servers, BYOD devices, text messages are all very common at the Rule 16 conference.