The Importance of Meet and Confer in Electronic Discovery

How important is Meet and Confer (Rule 26(f)) to electronic discovery? It is the cornerstone of an electronic discovery production. Simply examine the agenda for the Georgetown Law CLE. Think about the importance placed upon mastering this invaluable process: practice sessions, coaching sessions.

Mandate to meet and confer in Rule 26(f) of the Federal Rules of Civil Procedure is not for show. It is the first vital step in managing discovery, especially in electronically stored information (ESI) cases. The parties ought to confer substantively, crafting discovery plans, schedules, and resolving potential disputes before litigation escalation. It thwarts unnecessary battles and streamlines the judicial process.

 

What Does “Meet and Confer” Really Mean?

The term “confer” envisions a substantial conversation, face to face or via telephone, in good faith attempting resolution of the motion without court action, and does not envision a written exchange of ultimatums. Counselors attempting to confer but accomplishing nothing have not conferred. A telephone call or email ignored is not a conferral. The law requires the party that wishes to file a demurrer or motion to first meet and confer. That involves the attorney reading to the opposing attorney the legal basis for the demurrer or motion, and the opposing attorney being allowed to respond.

This principle allows for both parties to meet early on and cooperate, in the hope of minimizing misunderstandings, providing clarity, and offering less recourse to judicial intervention. In eDiscovery litigation, failure to meet and confer can result in sanctions, delay, or denial of discovery motions.

 

Why Meet and Confer is Critical in eDiscovery?

In the contemporary legal world, electronic discovery is more complex. Data takes many forms and shapes—emails and cloud storage, instant messaging platforms, and social media. The meet and confer process ensures that both parties face these challenges head-on. Issues discussed typically are:

  • Scope of data production
  • Format of production (native or PDF)
  • Preservation of ESI
  • Any privilege or confidentiality issues
  • Application of technology-assisted review (TAR)

Unless there is a productive meet and confer, parties can disagree on production format or forego valuable data that can impact the resolution of cases.

To guarantee a successful Rule 26(f) conference, go through this detailed checklist of meet and confer inquiries and discovery planning requests to manage your eDiscovery more efficiently.

 

Meet and Confer Best Practices

Preparation is key to maximizing your discovery conference. Legal personnel should:

  • Obtain an understanding of the case requirements beforehand – Know what ESI is relevant and where it’s stored.
  • Work with IT and data custodians – This offers efficient preservation and production capability.
  • Document everything – Take careful notes of what is discussed and agreed to during the meet and confer session.
  • Be flexible but firm – Compromise is necessary, but do not agree to terms that erode your client’s legal position.

Through these steps, attorneys can make a routine Rule 26(f) meeting a force multiplier for discovery planning.

 

Tools to Enhance Meet and Confer Abilities

There are lots of resources for Rule 26(f). They are:

These resources not only instruct attorneys on the basics of discovery discussions but also touch on hot-button issues in the legal technology world, keeping attorneys current.

 

Conclusion

Lastly, the meet and confer is not a mere legal nicety—it is a strategic plus. Done well, it can settle disputes, prevent misunderstandings, and position your case for more effective litigation. A veteran litigator or a newbie at civil procedure, the king of the meet and confer can be your pride of claim in mastering electronic discovery.

 

FAQs – Meet and Confer (Rule 26(f))

Q1: Will an email or a call satisfy the meet and confer requirement?

No. Rule 26(f) requires an in-real-time, good-faith conversation—face-to-face or over the phone. A read-only message doesn’t count.

Q2: What are the key discussion points in a Rule 26(f) conference?

Items like the scope of discovery, ESI production format, preservation procedure, privilege issues, and timelines should be covered.

Q3: Can I get in trouble for not attending a discovery conference?

Yes. Refusal to actively engage in a meet and confer can result in court sanctions or dismissal of discovery motions.

Q4: Is there support for Rule 26(f) meetings?

 Yes. CLE courses, podcasts like Cloudnine, and ABA articles offer tips on how to conduct productive meet-and-confer sessions.

 

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