eDiscovery Planning: Winning the Rule 26(f) Meet and Confer

Download this Rule 26(f) Conference Checklist to walk through all the questions you need to consider to prepare for the Meet and Confer. With proper planning, you can ensure that ediscovery is a smooth process.

Rule 26(f) of the Federal Rules of Civil Procedure requires that parties meet early in a litigation to negotiate an ediscovery plan that will reduce costs and burdens for each side. In 2009, the Sedona Conference issued its own proclamation encouraging such cooperation.

Still, many lawyers enter ediscovery without a detailed understanding of their client’s ESI or a specific execution plan in mind. That’s a mistake that often proves to be costly.

Meet and Confer Planning

Taking the time to create a detailed plan in preparation for a 26(f) Meet and Confer is one of the most impactful things you can do to save your clients time and money. It makes ediscovery more efficient, helps reduce discovery disputes, and – most importantly – gets parties to the litigation’s most relevant information faster.

There are plenty of measures you can take to prepare for these conferences, but most of them fall under three basic goal buckets:

• Understand – and plan to be open and honest about – client data and data-systems.
• Create frameworks for handling disagreements.
• Understand and evaluate opportunities for cost savings.

Here is an excerpt from our Rule 26(f) Conference Checklist that we compiled as a resource for lawyers beginning the 26(f) process:

Rule 26(f) Conference Checklist

Step 1

Define relevant custodians, i.e. determine who has access to discoverable information.

Step 2

Determine what types of discoverable information are available in:

• Emails
• Local computers/hard drives
• Cloud storage and remote servers
• Billing, purchasing, and/or invoicing software
• Social media, websites, and/or mobile devices

Step 3

Investigate and understand your client's IT structure:

• Email set-up (Outlook, Gmail, Office 365, etc)
• Be aware of any data retention policy that is in place

Step 4

Set up a 30 (b)(6) deposition for the opposing party’s IT manager to learn about their email setup and data retention policy.

Step 5

Draft a preservation request defining at least the minimum scope of relevant information.

Step 6

Define what is privileged and confidential in your data, and negotiate terms for a clawback agreement in the event privileged material is inadvertently produced. (Rule 502)

Step 7

Agree on metadata fields to be produced in the load file. (Use Nextpoint’s Production Specification sheet as a reference.)

Step 8

Determine if you want to include native (original) files such as spreadsheets, databases, and audio/video files in the production, or if images of these files will be sufficient. (Native files may add context that can be useful to an argument, but reviewing them is less straightforward and may drive up costs.)

Step 9

Begin compiling a list of keyword search terms and date ranges that may produce relevant data. Successfully arguing for a reduced scope of review can have a huge impact on final cost.

Step 10

Determine format of delivery. (Nextpoint electronic exchange? CD/DVD? Hard drive? FTP?)

Get the Full Checklist

Click the button below to download the full Rule 26(f) Conference Checklist and get everything you need to prepare for the Meet and Confer, including detailed recommendations for production specifications.