E-Discovery & Legal Ethics – What to Do About It Part 4: Meeting and Conferring with Opposing Counsel

This the fourth in a series of posts examining e-discovery concepts addressed in recent legal ethics opinions, such as State Bar of California Opinion CAL 2015-193,  relating to an attorney’s duty of competence.

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In sum, the opinion states that lawyers handling cases with e-discovery must either: 1) acquire sufficient learning and skill before handling matters involving e-discovery; 2) associate with counsel or technical consultants familiar with e-discovery, or 3) decline the representation.

The opinion states that lawyers with cases involving e-discovery must understand certain e-discovery tasks or bring in co-counsel or e-discovery consultants to assist. The tasks, which are discussed in this series of articles, are:

• initially assess e-discovery needs and issues, if any, and analyze and understand a client’s electronically stored information (ESI) systems and storage;
• direct the implementation of appropriate ESI preservation procedures and advise the client on available options for collection and preservation of ESI;
• identify custodians of potentially relevant ESI;
• engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
• collect responsive ESI in a manner that preserves the integrity of that ESI;
• perform data searches; and
• produce responsive non-privileged ESI in a recognized and appropriate manner.

This article addresses the fourth task, engaging in meaningful meet and confer sessions with opposing counsel about e-discovery issues.

Federal Rule of Civil Procedure 26(f) and similar state rules instruct attorneys to meet and confer early in litigation to discuss e-discovery issues and create a discovery plan.  Listed below are topics for counsel to consider when preparing for the conference and potential topics of discussion during the session.

Understand the Extent of Your Client’s ESI and Who Possesses It

To adequately prepare for an initial e-discovery conference, attorneys should meet with their client (or client’s IT department) and gain an understanding of the client’s electronic devices or computer networks hosting electronically stored information relevant to the case. It is also important to determine the identity of individuals (or “custodians“) possessing relevant ESI.  Often, the number of electronic devices, computer networks and ESI custodians are main topics of discussion during initial e-discovery meet and confer sessions.

Litigation Holds

During the conference, lawyers should be prepared to discuss the extent of any litigation holds and efforts to preserve electronic documents.  Once litigation is reasonably anticipated, parties are obligated to preserve documents.  To those ends, clients must be directed not to delete relevant electronic information and issue litigation holds.

Agreements on Information that is Not Reasonably Accessible 

Under Federal Rule of Civil Procedure 26 parties are obligated only to produce “reasonably accessible” ESI. By way of example, information that is “not reasonably accessible” includes system files that log user activity, temporary files and “cache” files.  During the initial e-discovery meet and confer sessions, courts often encourage parties to reach agreement on what type of information is not accessible and will not be produced.

Third Parties

Litigants must produce relevant documents in their “possession, custody and control.” As a result, third parties may hold client information under a litigant’s control that must be preserved. Attorneys should be prepared to discuss whether third parties possess ESI that is subject to preservation and potential production.

Forensic Images of Electronic Devices 

Often, the computers and electronic devices from which information is collected during discovery must remain in service during litigation.  For instance, to perform their job, an employee must continue to use his or her work computer despite the fact that it contains information relating to a lawsuit.  To preserve relevant information on the computer and to prevent against data loss, parties should consider making forensic images of “dynamic devices.” A forensic image is a “snapshot” copy of a computer’s hard drive.  Once the image is taken, the computer may be returned to service and the copied hard drive may be examined for relevant evidence without worry of information deletion or destruction. Creating forensic images of storage media will also ensure the integrity of the data is protected during collection.

Determine Relevant Dates and Time Frames

At the initial e-discovery conference, parties should identify and agree to the relevant time period that will be searched for documents.  This is a discussion that should be conducted both between opposing parties, and also between attorney and client.

Search Techniques

One of the most important issues to discuss during e-discovery meet and confer conferences is how document searches will be conducted.  Will documents be identified by search terms, file types, or predictive coding?  If search terms are used, parties should be prepared to discuss relevant search terms or agree on a process under which the search terms will be determined.

Format of Production and Metadata

Parties should also discuss ESI production format.  Will it be image files, such as TIFF, with text files or in native (original) format and are load files necessary?  How will the parties handle color documents?  Parties should also consider discussing how to handle e-mail messages and attachments and whether they should be numbered consecutively and produced together (sometimes referred to as parent-child relationships). It is also important to discuss what categories of metadata (internal data about the ESI such as creation date, author, recipient and the like) will be produced.

Phasing of Discovery

Another potential issue for discussion during initial discovery conferences is phasing discovery.  That is, will discovery be conducted in phases with rolling productions so that documents from the most important witnesses are collected, reviewed and produced first and documents from other less important witnesses deferred so that it may be determined whether discovery from them is necessary.

Discovery Orders

At e-discovery meet and confer conferences, parties should discuss protective orders and clawback agreements.  Many courts have form stipulated discovery orders that may be utilized by counsel.

Discovery Liaison

Finally, another potential topic of discussion at an e-discovery meet and confer session is the designation of e-discovery liaisons.  For instance, the Seventh Circuit Court of Appeals Discovery Pilot Program and the e-discovery guidelines from the United States District Court for Northern California suggest that parties designate an e-discovery liaison who is familiar with technical aspects of e-discovery and suited to serve as the e-discovery “point-person” to communicate with the court and opposing counsel regarding e-discovery issues.

The list above is not exhaustive as every piece of litigation is unique. Regardless of unique issues, most, if not all of the topics discussed above will likely be covered in the conference.