Often viewed as a necessary evil, the Rule 26(f) conference is in fact a valuable opportunity to streamline discovery and forestall costly and unnecessary disputes. The key to a successful meet-and-confer is preparation. Being well informed about your case ‒ including your ESI ‒ and having defined goals for the conference are critical to making it a productive discussion and not an empty formality.
To briefly summarize Rule 26(f), Subsection (1) sets the deadline for the conference as soon as practicable and at least 21 days before the scheduling conference or a Rule 16(b) scheduling order is due. Subsection (2) lists several required topics for the conference, including settlement, preservation and the discovery plan. The content of the discovery plan is addressed in more detail by Subsection (3). Finally, Subsection (4) gives the court discretion to modify certain conference-related deadlines.
Rule 26(f)(2) requires the parties “discuss any issues about preserving discoverable information.” The preservation discussion should cover a number of specific points. Keep in mind that each party should be prepared to answer as well as ask these questions:
- Status of the litigation hold ‒ When was it issued, who received it, what subjects and data sources does it cover and what procedures are in place for auditing compliance?
- Time-sensitive sources ‒ Has provision been made to preserve time-sensitive data sources such as smartphones, social media and other website data and third-party hosted data?
- Employee status changes ‒ How will data be preserved when an employee leaves the company or transfers to a different position?
- IT upgrades ‒ Does the IT department comply with the hold when implementing individual or network-based hardware and software upgrades?
- Automated deletion/archiving ‒ Have auto-delete and auto-archive functions been turned off for data sources covered by the hold?
Narrowing the scope of preservation reduces the significant time and cost burden of compliance. This can be achieved with some combination of limiting the subject matter at issue, delineating the relevant time frame, identifying nonrelevant or duplicative data sources, excluding “inaccessible” sources like disaster recovery backup systems and capping or otherwise limiting the custodian list. Lastly, specific objections to preservation notices can be made or discussed at the conference.
Scope of Discovery
The scope of preservation leads into the larger question of the overall scope of discovery. Discussions will typically be most productive when the parties are similarly situated with respect to their ESI, and thus face the same costs and risks. However, parties with an unequal discovery burden will still benefit from hashing out substantive disagreements on relevance early in the case. The conference is also a chance to inform the other side in advance of likely technical obstacles to collecting or producing ESI.
Where the parties are unable to reach agreement on scope, the conference serves to lay the groundwork for a protective order motion. At the least, discuss the discovery plan statements as to the subjects on which discovery may be needed and eDiscovery issues, as required by Subsection (3).
Technology Tools and Methodology
Although not specifically called out as a required topic, EDD technology is an unavoidable part of the conversation on preservation, technology-related issues as to scope of discovery and privilege, form of production and the feasibility of discovery schedule deadlines. Be prepared to discuss the selection and application of EDD technology tools and methodology to handling ESI from preservation through production.
The discussion should be kept at a fairly high level to avoid making specific commitments about technology at this early stage of the case, before the client’s ESI is fully understood. Detailed promises about technology-assisted review tools such as keyword and predictive coding are a particular danger area. Commitments to use industry-standard prereview filtering tools like deduplication are an exception to this general rule.
General agreements about using technology and a protocol for future discussions can be included in the discovery plan. Tech-savvy litigators can also use the conference to educate less experienced opposing counsel, which can help to head off unnecessary disputes about discovery scope, form of production and inaccessibility of ESI, among other issues.
Protecting against waiver due to inadvertent disclosure of privileged information is a top priority. The best option is to seek a stipulation on an FRE 502(d) order that disclosure of privileged information does not constitute a waiver of the attorney-client privilege in the instant or another proceeding. Where the parties cannot agree to a Rule 502(d) order stipulation, an alternative safeguard like a claw back or quick peek agreement can be included in the discovery plan and/or agreed protective order.
The conference is also a good time to talk about privilege logs. Creating a traditional privilege log is burdensome for large volumes of ESI. While technology can and should be used to substantially automate privilege log creation by auto-populating objective fields (i.e., from, to, sent date) from metadata, nontraditional privilege logs should also be considered. For example, email can be logged by thread groups (i.e., a message and its attachments; related messages in a string of replies and forwards) rather than individually; another option for email is an objective field-only log. A more aggressive approach is category logs that describe withheld categories instead of listing withheld records.
Whether traditional or nontraditional logs are used, parties should agree on a procedure to request additional information about, or challenge the privilege designation of, particular records. Also discuss practical details like the schedule for disclosing privilege logs.
Form of Production
The form of production is one of the elements of the discovery plan. On the surface, this is a simple exchange of technical specifications for loading records into the parties’ respective EDD review databases. If the specs are exchanged in advance, then the conference can be used to ask questions and work through objections. Your eDiscovery vendor or litigation support department will be able to provide its preferred specifications and review the other side’s to flag any technical issues.
However, scratching the surface reveals potentially contentious issues around the production of metadata, extracted text, native files and nonstandard file types or data sources. The greater the disparity in the parties’ discovery burdens, the greater the likelihood of a dispute over form of production. The same is true of disparity in the lawyers’ technological competence.
Form of production should include provision for:
- Metadata and extracted text ‒ Specify that the requested form of production includes metadata and text files.
- Native files ‒ Some file types, prominently .XLS and .PPT, lose embedded information and/or are simply difficult to read when converted to a static image format. Other file types like audio/video files cannot be converted at all. Request that such files be produced natively instead of, or in addition to, the standard image production format.
- Nonstandard data sources ‒ Some data sources do not fit the standard production form template. Common sources requiring customized forms of production are databases, websites and mobile devices.
The Rule 26(f) conference should include a comprehensive discussion of the case schedule to prepare for the scheduling conference and related submissions to the court. It is necessary to have at least an overview understanding of the volume and technical complexity of the client’s ESI in order to evaluate whether a proposed schedule is realistic.
Specifically with respect to the discovery plan, discuss the timing of written discovery, fact and expert discovery deadlines and rolling productions. Be alert to unrealistic production deadlines, especially start and end dates. Finally, because some production delays are likely if not inevitable, agree on a procedure for requesting deadline extensions or schedule modifications.
Initial Disclosures and Other Topics
These are a few other topics either required by the rule or that can productively be raised at the conference:
- Initial disclosures ‒ Subsection (1) requires the parties make, or make arrangements for making, their Rule 26(a)(1) initial disclosures at the conference.
- Settlement ‒ Also required under Subsection (1) is consideration of “the nature and basis of [the parties’] claims and defenses and the possibilities for promptly settling or resolving the case.”
- Protective order ‒ The agreed protective order as to confidential documents is likely to be the least contentious topic dealt with at the conference. The protective order can also include a mechanism for returning or destroying inadvertently produced privileged documents.
- Discovery plan ‒ Discuss drafting responsibilities and deadlines.
- Depositions ‒ Address practical details like procedures for video depositions and deposition exhibit numbering.
Preparation and Follow-up
Effectively preparing for the Rule 26(f) conference is a two-step process. The first step requires working with your client and your eDiscovery vendor. It is important for most of the conference topics to have a good understanding of the client’s ESI, including volume, sources and types, custodians, IT systems and potential technical or logistical difficulties with data collection. The eDiscovery vendor can provide supporting information on form of production, weigh in on the feasibility of proposed production deadlines and educate counsel on EDD technology options.
Second, collaborate with opposing counsel on the conference agenda. The meeting will be far more productive if it follows an agreed agenda that both sides come prepared to discuss. It is also helpful to exchange proposed language in advance as to the schedule, privilege stipulations, form of production, protective order and so on.
After the conference, follow up with a letter memorializing points of agreement, points of disagreement and action items. Internally, evaluate which issues can likely be worked out between the parties versus those which will have to be submitted to the court to decide. Finally, where further discussion seems profitable, set a time for the next meet-and-confer to keep the momentum going.
Developing a good grasp on the substantive and practical issues prior to a Rule 26(f) conference is the most effective way to ensure productive results. A successful Rule 26(f) conference – like many things in our profession – comes down to thorough and effective preparation and follow-up.