The meet-and-confer process is designed to allow both parties an opportunity to reach agreement on important issues about discovery early in the discovery process. The rules require that that 21 days before a Rule 16(b) scheduling conference, the parties are to “meet and confer” to discuss discovery. The goal of this meeting is to develop a plan for the preservation of data, documents and other evidence that may be important to discovery.
When both sides are “reasonable”, the meet and confer can transform into a collaborative, rather than combative, approach to discovery in which both sides work together to limit the costs and complications of electronic discovery. A thorough understanding of client systems can help facilitate this, as can an understanding of the challenges production of electronic data poses (including privilege waiver, form and/or format of data, accessing backed-up data etc.).
One of the most important steps in preparing for a meet and confer is to determine whether it makes sense to have a forensic expert or EDD consultant on hand to ascertain that any agreements are both feasible and appropriate. What counsel wants to avoid at all costs is to agree to something during the meeting that has implications beyond their familiarity with discovery data. For example, specifying that “all deleted files” must be recovered for discovery may seem a straightforward order, but this sort of overly broad directive can lead to escalating EDD costs. It’s better to have an expert available to guide the process and offer appropriate, cost-effective strategies and solutions.
Since ESI is not stored in a way that facilitates easy identification of responsive information, parties generally have to examine or harvest large volumes of data from a wide variety of sources to assure compliance with discovery obligations. If not controlled in the early stages of litigation, this process can be costly and fraught with risk. The proper preparation and implementation of a comprehensive preservation, collection and production plan, allows the party who is prepared to use the meet and confer to strategically control discovery, and the costs associated with it. Strategically, providing a well-developed preemptive plan, at a time when the opposing party is unaware of how the producing party stores the information, limits the opposing party’s ability to rationally object to the plan. Once the opposition gains the insight from you plan, it may be too late to challenge the plan, as no objection had been previously raised.
This concept of early and comprehensive disclosure runs counter to concept of the adversarial legal system, avoiding at all costs the process of providing opposing counsel with any information until required by the court. But times are changing, and the courts are mandating such disclosure. Ignoring this requirement often inflates the risks and costs associated with discovery and may provide a negative impression with the court. Courts now routinely focus on the defensibility of the process used to identify responsive information, with heavy emphasis on disclosure. Courts also look to the efforts make by parties to reach agreement on the search and review methods to be used. Courts recognize that the use of appropriate search methodology, including keyword searches, can be invaluable in managing the costs and time involved in collecting, reviewing and producing the significant volumes of data that come into play with ESI.
Perhaps most importantly, courts will question methods of search and retrieval where no disclosure of the search methods to be used, or agreement with the opposing party, has been reached. Courts are now entertaining sanctions against the producing party for not having disclosed and discussed a planned method of searching for responsive documents with opposing counsel in any prior meetings. This highlights the fact that there is a strong argument in favor of disclosure of methodologies to the opposing parties. This may include items such as: planned search and collection methods, including the data locations to be searched (custodians, databases, legacy data sources, etc.), the key terms and concepts to be utilized to search or cull information, and any date limitations.
Whenever possible, use the meet and confer requirements to agree with the opposing party on search protocols and procedures that allow for the possibility of refining or expanding those terms as discovery progresses and that are reasonably tailored to yield responsive information. However, even if you can not reach agreement, your disclosure of the search and collection methods may protect the disclosing party from any sanctions. To be prepared for the meet and confer, and to craft a reasonable ESI search plan, the party and its counsel should:
• Gather key custodians to determine document locations and create a topic list that includes abbreviations and acronyms to assure complete production
• Discuss the relevant date parameters for each search set, including when key custodians were involced in the matter under litigation
• Run some test searches on the document set using keywords selected and verify for over or under inclusiveness.
• Work with internal IT and external search experts on understanding the limitations of any search technology proposed for use.
• Understand your clients unique data source issues such as dynamic databases, proprietary software and the location of information in the “cloud”.
• Make sure you consider using advanced ESI tools such as Bayesian search, concept searching since courts are beginning to expect the use of advanced tools to effectively cull data populations.
• Prior to the search, create a list of attorneys, staff and firms that may appear in the data to help identify privileged documents at the outset.
• Perhaps most importantly, consider retaining an expert who can help you craft a defensible and repeatable search strategy to provide the court with an explanation of the strategy chosen.
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