Bill Hamilton’s 7 Deadly Sins of the Rule 26(f) ‘Meet-and-Confer’ Conference by Bill Hamilton
The Federal Rules of Civil Procedure, at Rule 26(f), require parties in litigation to "confer as soon as practicable... (to) make or arrange for the disclosures... (and) discuss any issues about preserving discoverable information; and develop a proposed
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These "meet and confer" sessions about electronically stored information (ESI) and e-discovery are crucial to a winning litigation strategy.
Successful litigators should enter this conference with the following three critical e-discovery goals. Serious consequences can follow if they are not attained:
To disclose, and achieve acceptance of, your data preservation decisions and to obtain your opponent's assurances that the data you seek to discover will be preserved,
To establish a data search goal of reasonable recall, search transparency, and search validity, (Recall is a measure of finding relevant documents. 0% recall means a search produced no responsive documents. 100% means it produced all of them in the selected universe. A requesting party wants high recall.
Transparency means disclosure of the search you ran. No search has 100% recall. Even a manual search misses a lot of relevant documents. You want transparency so if the search is challenged you can say the other side accepted it.
Validity means precision. Precise searches return only responsive documents.
Generally, you continue to refine searches to exclude non-responsive documents. If you are searching for "work order tickets" and run the search for "tickets" you may find speeding tickets. You would add "AND NOT speeding" to the search.
When you present your search terms, the opponent usually wants additions. You can run the new suggested terms on a random sample and show they produce only irrelevant documents. Show this to your opponent to elicit agreement with your search. Find ways to delete garbage while keeping positive hits.)
To protect against accidental or inadvertent disclosure of privileged communications.
To get the data in a format that is reasonably useable.
Here is how to avoid the 7 Deadly Sins of the Meet-and-Confer, the conference that sets the structure of a case's e-discovery process.
Deadly Sin Avoidance Step 1
Come prepared and make sure your opponent is prepared, too. Write a letter to the opposing counsel saying what you expect to accomplish at the conference, what you are going to do to prepare for the conference and what preparations you expect from him. If you let the opponent come to the conference unprepared it wastes your time, your client's money and impedes achieving your conference goals.
Deadly Sin Avoidance Step 2
Disclose your preservation decisions. Be prepared to explain them. Who knows what client data may unexpectedly become relevant later? You cannot preserve all client data to protect against that. Unnecessary preservation takes time and money and is wasteful. For example, it is probably not necessary to preserve forensic images of laptops and desktops or Internet browsing histories. It is also unlikely that back-up media contain important and non-cumulative data will be needed. You will be surprised how often your opponent agrees to a sensible decision. Disclosure also gives you peace of mind for the duration of the case. If lost data becomes relevant, your initial disclosure will help you avoid or minimize judicial sanctions. Demand the same from your opponent. Their data is part of your case. Make sure it is secure. Don't think you can set a future trap. If a preservation problem appears later, you will be asked to explain your silence at the beginning. The blame for e-discovery preservation can often be shared by both sides.
Deadly Sin Avoidance Step 3
Limit and phase e-discovery in tiered servings because it is typically not an "all at once" game. You can only afford so much e-discovery. It is bounded by the dollar value and importance of the case. ESI is unlike paper; its volume can be staggering. Present a sensible plan to corral the important data. Only a handful of documents are likely to be used at trial. Your opponent will probably agree because no one wants a data dump. Why process and review the data of 20 company employees who might have some marginally relevant ESI when a few key players can be identified quickly? You should suggest starting with two or three key employees and building from there. Get an agreement for more production later, if necessary. Also reach agreement on a flexible, rolling e-discovery plan to be reviewed and revised periodically. Include this agreed phased plan in the court Scheduling Order that is entered later pursuant to Federal Rule of Civil Procedure 16.
Deadly Sin Avoidance Step 4
Establish basic search metrics at the conference and put your opponent to the same test. Make sure your opponent knows you will insist on search quality and demonstrable, statistically valid recall. Find out how they will search the data and whether manual searching or automated search tools with key words or concept searching will be used. Because all search methodologies have inherent weaknesses, you should point out the problems with each approach. All you should care about is the quality of recall of relevant data. Make sure your opponent knows that this is your focus. It is your job to deter sloppy, casual search for data you may need to win your case. Don't settle for a "don't ask, don't tell" strategy. Your client deserves the best possible data, not just what the other side happens to find.
Deadly Sin Avoidance Step 5
Lock down the end game because you usually get only one bite at the apple. Pick your spots carefully. Be sure to agree on a production format for both sides. There may be a rare case where printing electronic files is cost-effective and efficient, but you should reach agreement on how you want the data from your opponent and how you will produce your own. Are there costs you will ask the opponent to pay? If you intend to produce data in "native," (meaning a copy of the original electronic file) TIFF or PDF formats, discuss how each side's data will be organized and delivered and what metadata will be produced.
Deadly Sin Avoidance Step 6
Make sure to get agreement on the entry of a court order, under Federal Rules of Evidence, Rule 502, protecting you against inadvertent disclosure of privileged documents. Mistakes happen even after rigorous - and expensive - review and double checking.
Deadly Sin Avoidance Step 7
Don't let what you won at the meet-and-confer conference(s) get lost in the fog of competing - and faulty - memories. Confirm in writing all the agreements you reach. No one will recall what transpired unless you confirm it in writing. Memorialize the conference as you would a settlement agreement or a contract.
These seven tips will help you take control and win your case, in a cost effective manner. Taking control means taking control of the Rule 26(f) conference at the start and achieving your e-discovery goals. Remember the mantra of trial lawyers: prepare, prepare and prepare.
Comments:
Saturday, July 17, 2010 2:05:27 AM by Christopher Car
Great article. Step 5 can be very tricky because many people have different ideas about what constitutes "Metadata." Requiring the export of data from the originating source using a right blocking program like Encase can produce the purest form of Metadata protection by encapsulating the files into an Evidence Container. This is more costly, but can reveal the most metadata about the documents.
If you do tiff files, you may also want it OCRed. Or PDF, maybe should be searchable. Don't forget to ask for the specific style load file for your review application (dii for summation). You can be in a tough bind if you don't specify.
Lastly, decide on a bates / hash value strategy. What I said above about the evidence file can protect accidental file changes which can affect the hash value. If a hash value is changed during litigation it can make clawback next to impossible and identifying documents a nightmare.
Thanks again for a great article
Thursday, June 10, 2010 2:58:10 PM by Joseph Peter Myers
As one who is unlikely to ever be involved in either e-discovery or a Federal action, I thought the "tips" were nevertheless excellent. It seems to me that they demonstrate a careful planning process and approach to any discovery in almost any litigation whether or not one is in the ambit of Federal Rules. Further, the discussion of "transparency" and disclosure is indicative of an ethical and collegial model of trial practice.
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