This post was originally published by Paragon, a Relativity Premium Hosting Partner. We thought the post provided some helpful insight into how an effective meet and confer strategy can have a positive impact on downstream e-discovery workflows and costs.
As the adage goes, “proper preparation prevents poor performance.” Platitudes aside, this rings especially true in modern discovery battles and the mountains of information at issue. Evolving network environments, custodians dispersed around the country or even globally, debates over production formats, disputes over search methodologies, a multitude of review platforms, and of course budgetary concerns… the list of considerations goes on and on. But lest we think all hope is lost, there is one mechanism in the Federal Rules of Civil Procedure that seems to offer lawyers the best option for curtailing the discovery monster: Rule 26(f).
Unfortunately, it seems too many attorneys view Rule 26(f) as, at best, a mere formality, and at worst, a rule to be disregarded. The consequences of this mindset can result in major discovery headaches, costly remedies to those headaches, or even worse scenarios such as sanctions due to data spoliation or even testimony being disallowed due to lack of proper disclosures. These risks can be avoided, or at least mitigated, with a well-designed and well-implemented 26(f) meet and confer strategy.
The importance of the meet and confer process has been highlighted by some of the matters we have been engaged with lately, and 5 big picture areas for consideration have jumped out at me.
1. Select your crew before you select your destination
Getting the right people on the team (at the right time of course) is critical to successful discovery projects. Assess the situation and figure out who is needed to help formulate the plan for the meet and confer. Will you lean heavily on the lit support group, or will the paralegals and case managers run the discovery efforts? Should your vendor be a part of the planning as well, or are you trying to handle most of the technical challenges with internal resources? There is no “right” answer but on more than one occasion I have been engaged to consult on cases and was left thinking: I wish we had talked a month ago!
The reality is that a diversity of viewpoints enables us to spot more problems, and hopefully proactively develop better solutions. Each and every member of your team has a different experience with e-discovery and will bring a different perspective. Putting together a small team will help you spot all the angles and avoid “missing the forest for the trees.”
2. Get a hold on your legal holds
Now before you chide me with a “Thanks Captain Obvious”, I still find myself talking to lawyers that don’t take the legal hold process seriously or think that a simple “set it and forget it” attitude will suffice.
Lest there be any uncertainty, it is crystal clear that you must issue a litigation hold, track the hold, and monitor it to ensure the hold is being followed. Fortunately, there are many software programs out there to streamline and automate this process (and no, Excel is not one of them). Get your custodians in order, get them a questionnaire and make sure you follow up, follow up, and follow up. Courts expect parties to be able to explain the steps taken to preserve data and demonstrate that you have a solid process. Don’t let discovery get off the tracks early just because you thought you could save some money on the hold process.
3. Actually talk to your client
As silly as it may sound, I’ve met lawyers who tell me they will email their clients in order to get a handle on discovery-related issues. Really? Pick up the phone and have a conversation! It’s amazing what can happen.
No one knows your client’s data better than they do, so it is in your (and their) best interest to go straight to the source. Asking the right questions helps you get a handle on where and how their data is stored, and more importantly how to extract the relevant information and get it into the proper hands. Remember the 4 Ws Rule:
- Who are the potential custodians and what is needed in order to get the data from them?
- When is the relevant time period at issue?
- What type of data repositories are we dealing with?
- Where is the data stored and are there cross-border discovery issues in play?
Obviously, these are high level questions comprised of many other open-ended questions, but they provide a simple reminder of some vitally important questions to get answered.
4. Begin with the end in mind: form of production issues
Once you have a technical understanding of your client’s data, you should be able to create this plan as well as prepare to discuss why the protocols you are presenting are the best for this matter. Although this can be a challenging and complex task, and likely best accomplished after consulting an expert in the matter, there are a few high level questions to address:
- Will this data be produced in native format?
- If not, what type of file formats will be produced?
- What metadata fields need to be provided?
- How will paper documents (yeah, they are still a part of the process) be handled?
Again, these questions merely scratch the surface, and the word count of this blog post would blow up like an uncompressed .pst file if I were to try and cover everything, but there is a great production guide on www.edrm.net that should be consulted if you need to increase your understanding of the type of considerations to make.
5. Pinpoint cost savings and efficiencies
Lastly, keep in mind our focus on taking the necessary steps to avoid an unduly burdensome and expensive discovery process. Education is often counsel’s best weapon here, and keeping abreast of the latest techniques for culling data, investigating the facts and increasing reviewer efficiency is critical. And while we all have (hopefully) committed the 2012 RAND Study to memory, let’s not forget the cost of privilege and responsiveness review. Identifying processes to reduce the volume of data before it gets to review is of the utmost importance if you want this number to drop. Search terms, date ranges, file types, and domains to exclude are all examples of topics to be prepared to discuss during your 26(f) meeting. And regardless of whether you are a proponent or opponent of disclosing the use of technology-assisted review, understanding the technical realities underlying that decision is critical. Given the extensive savings that can be realized by the use of TAR, I consult with as many of my clients that will listen to consider learning more about TAR. Not only is the tool an effective weapon in discovery, I think it is a critical piece of business development efforts for law firm lawyers to consider adding to their arsenal.