26(f) Conferences. Discussions to try to facilitate communication and cooperation on discovery issues should commence at the beginning of any case, with the 26(f) conference date seen as a deadline, rather than early commencement date. As Judge Nan Nolan observed:
The [collaborative] approach should be started early in the case. It is difficult or impossible to unwind procedures that have already been implemented.
Kleen Products, LLC, et al. v. Packaging Corp. of Amer., et al., Case: 1:10-cv-05711 Document #: 412 (ND, Ill., Sept. 28, 2012) at page 38. Also See Seventh Circuit Electronic Discovery Committee Principles Relating to the Discovery of Electronically Stored Information, Principle 2.01 (Duty to Meet and Confer on Discovery and to Identify Disputes for Early Resolution).
For a good general discussion on Rule 26(f) and cooperation listen to the ESI Bytes Webinar with Magistrate Judge David Waxse (shown right), one the country’s leading e-discovery judges, Alex Ponce De Leon, discovery counsel for the Intel Corporation, and Martin Tully, head of Chicago based Katten Muchin’s Electronic Discovery and Evidence Practice. Judge Waxse points out that discovery is not a win lose contest, that the rules require cooperation on discovery, not zealous advocacy. The Intel in-house counsel points out that cooperation requires knowledge of the client’s data, where important information to the case is stored. Martin Tully notes that cooperation is the most difficult in asymmetric situations, where one side has a much larger data set to preserve, review and produce.
Discussions on cooperations should begin with the client in initial case strategy conferences. The advantages of Cooperation on discovery to save money and protect the client’s interests should be explained. Client buy-in to this approach should be obtained. The client must understand that cooperation in discovery does not impact your vigorous advocacy in other areas. They must also understand that this is not an elective approach, that it is required by the rules. See Eg. The Sedona Conference® Cooperation Proclamation, 10 Sedona Conf. J. 331, 331 (2009); Kleen Products at pg. 1; Losey, R., Attorneys Admonished Not to “Confuse Advocacy with Adversarial Conduct” and the Growth of the Proportionality Doctrine (2012).
Discussions with opposing counsel should also begin as soon as possible. At the very latest, you should attempt to initiate a collaborative process at the mandatory 26(f) conference. In the words of the District Court of Kansas, Guideline Three:
Duty to notify. A party seeking discovery of ESI should notify the opposing party of that fact immediately, and, if known at the time of the Fed. R. Civ. P. 26(f) conference, should identify as clearly as possible the categories of information that may be sought.
Meetings should also take place with nonparties when requesting ESI under Rule 45.
As one component of these discussions between parties it is an accepted best practice in large cases for an e-discovery liaison attorney to be designated for each party. Kleen Products, LLC, et al. v. Packaging Corp. of Amer., et al., Case: 1:10-cv-05711 Document #: 412 (ND, Ill., Sept. 28, 2012) at page 38; Seventh Circuit Principles Relating to the Discovery of Electronically Stored Information, Principle 2.02 (e-Discovery Liaison(s)). Also see: U.S. District Court for the Northern District of California Guidelines for the Discovery of Electronically Stored Information at 2.05. Further, regardless of case size, an e-discovery liaison with requisite expertise should be retained and designated to handle any disputes that arise concerning the preservation or production of ESI. Seventh Circuit Principle 2.02 goes on to specify:
Regardless of whether the e-discovery liaison(s) is an attorney (in-house or outside counsel), a third party consultant, or an employee of the party, the e-discovery liaison(s) must:
(a) be prepared to participate in e-discovery dispute resolution;
(b) be knowledgeable about the party’s e-discovery efforts;
(c) be, or have reasonable access to those who are, familiar with the party’s electronic systems and capabilities in order to explain those systems and answer relevant questions; and
(d) be, or have reasonable access to those who are, knowledgeable about the technical aspects of e-discovery, including electronic document storage, organization, and format issues, and relevant information retrieval technology, including search methodology.
Any client IT experts, or outside vendors and other non-attorney experts, should ideally be retained and consulted before the 26(f) meetings with other counsel to discuss e-discovery. The actual presence of such experts at attorney conferences depends on the circumstances, but it is always a best practice to have them readily available for your private consultation.
In complex cases Rule 26(f)-type conferences on e-discovery issues usually require multiple meetings with exchange of information in advance of the first meeting. Typically questions arise that require consultation with other experts or clients. Wherever possible at least some of these meetings should be in-person, not just telephone conferences. See Eg. Suggested Protocol for Discovery of Electronically Stored Information, Maryland District Court Committee (2007), Protocols 4-7.
The topics to be discussed at 26(f) conferences include the following minimum suggested by commentary to the rules.
- The form or forms in which ESI should be produced.
- Nature and extent of the contemplated ESI disclosure and discovery, including specification of the topics for such discovery and the time period for which discovery will be sought.
- Whether the production of metadata is sought for any type of ESI, and if so, what types of metadata.
- The various sources of ESI within a party’s control that should be searched for ESI, and whether either party has relevant ESI that it contends is not reasonably accessible under Rule 26(b)(2)(B), and if so, the estimated burden or costs of retrieving and reviewing that information.
- The characteristics of the party’s information systems that may contain relevant ESI, including, where appropriate, the identity of individuals with special knowledge of a party’s computer systems.
- Any issues relating to preservation of discoverable ESI. The Seventh Circuit Electronic Discovery Committee Principles Relating to the Discovery of Electronically Stored Information (Rev. 08/01/2010), Principle 2.04, Scope of Preservation, contains detailed advice on best practices for handling preservation issue discussions with opposing counsel, including the following points at 2.04 (c) and (d):
- The parties and counsel need not raise every conceivable issue that may arise concerning their preservation efforts; however, the identification of any such preservation issues should be specific.
The following categories of ESI generally are not discoverable in most cases, and if any party intends to request the preservation or production of these categories, then that intention should be discussed at the meet and confer or as soon thereafter as practicable:(1) “deleted,” “slack,” “fragmented,” or “unallocated” data on hard drives;(2) random access memory (RAM) or other ephemeral data;(3) on-line access data such as temporary internet files, history, cache, cookies, etc.;(4) data in metadata fields that are frequently updated automatically, such as last-opened dates;(5) backup data that is substantially duplicative of data that is more accessible elsewhere; and(6) other forms of ESI whose preservation requires extraordinary affirmative measures that are not utilized in the ordinary course of business.
- Assertions of privilege or of protection as trial-preparation materials, including whether the parties can facilitate discovery by agreeing on procedures and, if appropriate, an Order under Federal Rules of Evidence Rule 502. The parties should attempt to agree on protocols that minimize the risk of waiver.
- Whether the discovery of ESI should be conducted in phases, limited, or focused upon particular issues.
For an exhaustive list see Suggested Protocol for Discovery of Electronically Stored Information, Maryland District Court Committee (2007), Protocol 8. For a more concise list prepared by a bench bar Committee of the U.S. District Court for the Northern District of California see their ESI checklist for use during the Rule 26(f) meet and confer process and Guidelines at 2.02. Also see the California Model Stipulated Order Re: the Discovery of Electronically Stored Information and the Southern District of Florida’s Rule 16.1 that went into effect on December 1, 2017. The Court issued a thirty-three point checklist that Losey has written a blog about and often follows in his practice.
In addition to these rule based topics, it may in some case be appropriate to discuss the actual search methods that the parties intend to use to find relevant ESI. The 33-point checklist from the Miami District Court does that. The rules do not require such discussions and disclosure. Search methods have traditionally been considered confidential attorney work product. But it may still be advantageous to have such discussions as a risk mitigation and efficiency tactic. If an agreement on search protocol is reached by the parties, or imposed by the court, the parties are better protected from the risk of expensive motion practice and repetitions of discovery search and production. Agreement on search protocols can also be used to implement bottom line driven proportional review practices. See Eg. the first case approving predictive coding protocols: Da Silva Moore v. Publicis Groupe, _ F. Supp. 2d _, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012) (approved and adopted in Da Silva Moore v. Publicis Groupe, 2012 WL 1446534, at *2 (S.D.N.Y. Apr. 26, 2012)). Also see Global Aerospace Inc. v. Landow Aviation, L.P., 2012 WL 1431215 (Va. Cir. Ct. Apr. 23, 2012).
The Seventh Circuit Electronic Discovery Committee Principles Relating to the Discovery of Electronically Stored Information, Principle 2.01 (Duty to Meet and Confer on Discovery and to Identify Disputes for Early Resolution) takes the position that search methods should be discussed and disclosed, without very few of the caveats you will currently find here:
Principle 2.01(a)(1). [T]he identification of relevant and discoverable ESI and documents, including methods for identifying an initial subset of sources of ESI and documents that are most likely to contain the relevant and discoverable information as well as methodologies for culling the relevant and discoverable ESI and documents from that initial subset (see Principle 2.05)
The referenced Principle 2.05(b)(3) states that topics of discussion may include any plans to:
use keyword searching, mathematical or thesaurus-based topic or concept clustering, or other advanced culling technologies.
The use of the word may (instead of shall) does suggest that the Seventh Circuit best practice is at least in accord with the EDBP position that these kind of discussions are discretionary and not required in all cases where such advanced search best practices are used.
The Northern District of California ESI checklist also calls for disclosure of quality control methods and search methods, but has an old-school slant towards disclosure of keywords, which is not really a best practice anymore in significant cases. The approach by the District Court in Miami addresses quality control too, and avoids that error. The 33-point list includes the following on Search, with the blue font comments by Losey:
A. The search method(s), including specific words or phrases or other methodology, that will be used to identify discoverable ESI and filter out ESI that is not subject to discovery. (Please people, exchanging keywords should be just the beginning, not the whole process. It is only one of many possible search methods. Use the Hybrid Multimodal method, which all readers of my blog and books should know pretty well by now.)
B. The quality-control method(s) the producing party will use to evaluate whether a production is missing relevant ESI or contains substantial amounts of irrelevant ESI. (The problem of missing relevant ESI is the problem of Recall, whereas the problem of too much irrelevant ESI is the problem of Precision, but also, to some extent, to the problem of duplication. All good electronic document review experts have a number of different quality control techniques to improve recall and precision. Not an expert? Then perhaps you should consult with one in your firm, or if you have none (pity), then ask your e-discovery vendor.)
More descriptions of Rule 26(f) related best practices to added. In the meantime, if you have any suggestions and care to contribute to this project, or any questions (nothing case specific please), please leave a comment below.