Often viewed as a necessary evil, the Rule 26(f) conference can serve as an invaluable opportunity to meaningfully discuss discovery such that the process is streamlined and seeks to avoid unnecessary (and often costly) disputes. Generally speaking, Rule 26(f), among other things, sets the deadline for the conference as soon as practicable and at least 21 days before the scheduling conference, and lists several required topics for the conference, including preserving discoverable information. Although a litigant should use the Rule 26(f) conference to reduce the risk of spoliation claims through agreements on preservation, as well as reduce costs by limiting the scope of e-discovery, achieving results is almost entirely dependent on the attorney’s preparation. Indeed, being well informed about your client, its documents ‒ including ESI ‒ and its goals will allow for a productive discussion rather than an empty formality. But, how exactly do you prepare and what should you think about before the conference?
To prepare for the conference, it helps to think about the end game and to formulate the steps necessary to get there. The below thoughts on preparation/topics are intended merely as a guidepost and are not exhaustive.
- Understand your client’s ESI: What kind of ESI is required to prosecute the client’s claims and defend against those of the adversary? Where does that ESI reside? To this end, it is important to become familiar with your client’s network architecture, including what hardware exists, and where. You should strive to understand the client’s knowledge management (when/how is ESI stored), system knowledge (what is stored and where) and who is responsible for maintaining and storing data. For example, are there physical email servers on site, or are the servers virtual? What is necessary to access and collect data from each server? Relatedly, give thought to addressing admissibility and how authenticity may be established over the documents (See “The New Rules of Federal Evidence Have Arrived“).
- Identify Custodians: Take time to identify employees/custodians likely to have potentially responsive ESI. Preservation comes at a cost and if you fail to understand your custodians, you may over-preserve. Consider, for example, if the client is a national organization with offices throughout the U.S. If all of the relevant custodians work out of the Omaha office, with all of the potentially responsive data located on a particular server, is there need to preserve the content of all other servers? Consider interviewing those custodians to identify other relevant custodians.
- Understand the timing and execution of Hold Notices, and Related Thorny Issues: At the conference the parties should determine the scope of the duty to preserve. For example, be prepared to disclose (and ask adversary about) the status of the litigation hold. Has one been issued? If so, when and who received it. If not, why not? You may even seek to inquire about what subjects and sources the Hold covers and if there is any procedure in place for auditing compliance. Are there any time-sensitive data sources involved and if so, have auto-delete and auto-archive functions been turned off for those data sources? Is data from third-parties potentially responsive? And, if so, what steps, if any, have been taken to preserve that data? Have any key custodians left the company or potentially leaving? If so, what steps are being taken to preserve his/her data? Because of the large increase in e-data and the various locations where that data may reside, think about ways to narrow defensibly the scope of what you preserve.
- Understand Collection: While you may agree to preserve all of Katy Cole’s emails from 2010 to the present, that doesn’t mean you are agreeing to review for production all of that data. What will be done to identify the materials that will be reviewed? Can the parties agree upon search terms, date delimiters and other methodologies to limit the universe of material? Consider entering an agreement as to appropriate date ranges, custodians, systems, file types, and search terms.
- Understand Privilege Obligations: You should also discuss privilege during the Rule 26 conference. Consider seeking a stipulation or Rule 502(d) order stating that disclosure of privileged information does not constitute a waiver of the attorney-client privilege in the instant or another proceeding. Discuss whether a traditional privilege log is practical or burdensome for large volumes of ESI. Would it be preferable to log privileged emails by thread groups (i.e., a message and its attachments; related messages in a string of replies and forwards)? Or are categorical logs (i.e., those that describe withheld categories instead of listing withheld records) preferable?
- Understand Production Format: Don’t leave format to the whim of your adversary. Discuss expectations. Indeed, there is little worse than receiving a thumb drive that contains various unsearchable PDFs (well, maybe a paper production is worse). Discuss your production specifications and be prepared to produce in the same format you demand production. Relatedly, is there any paper in the production? If so, be certain to request that Optical Character Recognition (OCR [i.e., the process by which paper documents are converted into editable, searchable computer files]) be applied for ease text-search ability. And, are you producing in a fell swoop or will the parties engage in phased discovery?
A meaningful and productive Rule 26(f) conference can streamline discovery, avoid unnecessary costs and avoid spoliation concerns. It should be embraced as an opportunity to reach agreement and engage in a cooperative discovery process that will promote proportionality.