Page 105 - 2019 - Leaders in Legal Business (n)
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format. Those files are best produced in their native format.
Presentation
In the final stage of the discovery framework, parties display ESI at trials, hearings,
depositions, and the like to gather additional information, validate existing facts, or persuade a
judge or jury.
The “Meet and Confer”
Fed. R. Civ. P. 26(f) requires a pre-trial conference among the parties “as soon as
practicable” to discuss a variety of issues, sometimes called a “meet and confer.” Some state courts
have similar requirements. As the client’s representative, counsel should be prepared to discuss
the discovery of ESI at the meet and confer. Ideally the conference will address a host of issues,
including the following:
the scope of discovery, including the subject matter, time frame for relevant
information, and potential custodians;
the accessibility of data, including legacy data and backup systems, as well as any legal
restrictions on access such as data privacy laws;
the scope of the preservation of data, including metadata, and the preservation efforts
that are underway;
the form of production of the data;
the use of search terms and other selection criteria to filter the data;
the use of technology such as predictive coding to expedite review;
the timing of data production, including whether production should occur in phases;
the need to protect proprietary or privileged data, including provisions such as a
“clawback” agreement to prevent the waiver of the attorney-client privilege or work-
product protection; and
the shifting of costs to the requesting party if discovery will be unduly burdensome or
expensive.
Given the breadth of issues that must be addressed, counsel must arrive at the conference
well versed in the client’s data and systems. In many cases, this may require the expertise of an e-
discovery consultant who can advise on any potential problems. Having a knowledgeable third
party available for the conference can also satisfy the lawyer’s duty of competence under a
comment recently added to ABA Model Rule 1.1, which requires counsel to be aware of “the
benefits and risks associated with relevant technology.”5
The result of the conference should be a comprehensive discovery plan, which can control
discovery costs and avoid excessive motion practice. It can also serve as evidence of good faith
efforts to cooperate should a dispute arise. The court should enter an order memorializing
5 MODEL RULES OF PROF’L CONDUCT R 1.1 CMT. 8 (2012).
90
Presentation
In the final stage of the discovery framework, parties display ESI at trials, hearings,
depositions, and the like to gather additional information, validate existing facts, or persuade a
judge or jury.
The “Meet and Confer”
Fed. R. Civ. P. 26(f) requires a pre-trial conference among the parties “as soon as
practicable” to discuss a variety of issues, sometimes called a “meet and confer.” Some state courts
have similar requirements. As the client’s representative, counsel should be prepared to discuss
the discovery of ESI at the meet and confer. Ideally the conference will address a host of issues,
including the following:
the scope of discovery, including the subject matter, time frame for relevant
information, and potential custodians;
the accessibility of data, including legacy data and backup systems, as well as any legal
restrictions on access such as data privacy laws;
the scope of the preservation of data, including metadata, and the preservation efforts
that are underway;
the form of production of the data;
the use of search terms and other selection criteria to filter the data;
the use of technology such as predictive coding to expedite review;
the timing of data production, including whether production should occur in phases;
the need to protect proprietary or privileged data, including provisions such as a
“clawback” agreement to prevent the waiver of the attorney-client privilege or work-
product protection; and
the shifting of costs to the requesting party if discovery will be unduly burdensome or
expensive.
Given the breadth of issues that must be addressed, counsel must arrive at the conference
well versed in the client’s data and systems. In many cases, this may require the expertise of an e-
discovery consultant who can advise on any potential problems. Having a knowledgeable third
party available for the conference can also satisfy the lawyer’s duty of competence under a
comment recently added to ABA Model Rule 1.1, which requires counsel to be aware of “the
benefits and risks associated with relevant technology.”5
The result of the conference should be a comprehensive discovery plan, which can control
discovery costs and avoid excessive motion practice. It can also serve as evidence of good faith
efforts to cooperate should a dispute arise. The court should enter an order memorializing
5 MODEL RULES OF PROF’L CONDUCT R 1.1 CMT. 8 (2012).
90
