Federal Rule of Civil Procedure 26(f) and similar state rules such as Colorado’s Rule of Civil Procedure 16(b)(3) and California Rule of Court 3.724 (8) direct attorneys to meet and confer at the outset of litigation to discuss e-discovery issues and craft a discovery plan. Listed below are 10 things for counsel to consider when preparing for the conference and potential topics of discussion for 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 (“ESI”) relevant to the case. It is also important to determine the identity and number 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 instituted by their clients and their clients’ efforts to preserve electronic documents. Once litigation is reasonably expected, 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 not obligated to produce ESI that is “not reasonably accessible.” 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 during the litigation.
4. 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 that may be relevant 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.
5. 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.
6. Search Techniques. One of the most important issues to discuss during a Rule 26(f) conference or its state counterpart, is how the search for ESI 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.
7. Format of Production. Parties should also discuss the format of ESI production. Will it be in TIFF format 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.
8. 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.
9. Discovery Orders. At the e-discovery meet and confer conference, parties should also consider discussing whether protective orders and clawback agreements are necessary. To those ends, many courts have form stipulated discovery orders that may be utilized by counsel.
10. 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.
Obviously, the list above is not exhaustive, and each case is unique, so other issues may arise during Rule 26(f) and e-discovery meet and confer conferences. However, regardless of unique issues, most, if not all of the topics discussed above will likely be covered in the conference.