By now, every lawyer knows that they have an obligation to meet and confer with opposing counsel to discuss eDiscovery at the start of litigation. At Nextpoint, we don’t see the Rule 26f Conference as an obligation, but an opportunity.
How to Negotiate
Lawyers going into litigation are ready to do battle with their opponents. But we recommend that every lawyer study The Sedona Conference Cooperation Proclamation as a philosophical guide to discovery.
In addition, you should be familiar with:
The Electronic Discovery Reference Model Identification Guide
The Electronic Discovery Reference Model Searches During EDRM Workflow Steps
FindLaw Meet and Confer Checklist
Nextpoint’s free Meet and Confer Checklist
What to Negotiate
Know your custodians. Who has access to discoverable information? Where might it be stored? Make sure you will be able to access these sources if needed. Don’t let opposing counsel eliminate sources of information whenever possible.
Native files are important to keep for authentication purposes, but review is typically conducted using images of the original files in order to:
- Bates stamp and track documents
- Redact privileged information
- Prevent spoliation of the original data files.
We recommend that parties negotiate exactly the format types information will be produced in order to prevent complaints later.
Know Your Rights and Responsibilities
Depending on the scope and size of your matter, other important considerations include:
Remote data collections
Social media discovery
Metadata to be preserved
Take appropriate measures to authenticate potential evidence.
For pretrial disclosures under F.R.C.P. 26(a), you have 14 days to file objections or possible waiver
Remember documents produced by opposing party are presumed to be authentic unless you challenge
I hope this gives you a sense of the broad issues to be considered in your initial negotiations with opposing counsel in any matter. You can now view our recorded webinar series covering Pre-Trial, Review Strategies and Trial Prep.