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Judicial Advice on On Meeting your Rule 26(f) Obligations

Our recent webinar, Avoiding Spoliation Sanctions in 2017 Under the New FRCP Amendments, featured the honorable Judge Xavier Rodriguez, a United States District Judge for the Western District of Texas. One of the questions we asked Judge Rodriguez was “Are judicial expectations shifting as to what the parties should accomplish in early case conferences and the scheduling order before discovery commences?” He offered some valuable insight into what best practices he is seeing from the Rule 26(f) meetings and which elements are still missing.

Rule 26(f) obligations have been the source of much confusion and hand-wringing. There are several key agreements which must be met during ‘meet and confer’ sessions early in the case, which at a glance can appear daunting. Proactive approaches to the challenge are best.  With the sheer amount of electronically stored information (ESI) exchanging hands in a complex case today, and the possibility of some ESI to be not preserved, damaged or lost, Rule 26(f) forces us to do the necessary work early in the case, rather than waiting for problems to arise.

We wanted to bring you our key takeaways from the webinar on Rule 26 obligations to keep in mind as you prepare for your next document complex case.

    • Schedule your Rule 26(f) meeting with opposing counsel prior to your Rule 16 meeting with your Judge. By coming prepared to your Rule 16 meeting with agreements in place and disputes ready for the Judge to rule on, you can expedite discovery and dispute resolution.
    • Prior to your 26(f) meeting you should survey the probable ESI in your case.
      1. Interview custodians to determine key players.
      2. Each side should work with their clients to determine what document retention policies are in place, and modify as needed.  For example, are there automatic deletion systems that need to be turned off for preservation?
      3. A best practice is to prepare a “data map” of your ESI prior to your Rule 26(f) meeting.  A data map is an inventory of potentially responsive ESI by custodian, device, location and content.
      4. Put an ESI Agreement or protocol in place. Lexbe provides a sample ESI order/agreement/protocol as a starting point. Download it for free HERE.
    • Goals for the 26(f) meeting are to come away from the conference with the following structure laid out, to the extent possible:
      1. Define the scope of the eDiscovery requirements. Identify dates, custodians and places where data may be kept.
      2. Discuss how ESI will be preserved. Will all devices be imaged, or will there be a directed collection? An important consideration here is to consider what metadata should be preserved and transmitted with production.
      3. Who will handle collection?  Possibilities are an outside vendor, company IT staff and custodial self-collections.  What safeguards will be in place depending on the risks with each methodology.
      4. Identify deduplication and culling methods to reduce reviewable documents and ESI.
      5. Set reasonable deadlines for when data exchanges need to happen.
      6. Parties should agree on how they will receive opposing counsels ESI. (Lexbe and many eDiscovery experts recommend that you ask for produced, non-privileged ESI to include files in native format. We offer a checklist on Requesting Production in Native File Format HERE.
      7. Be reasonable and cooperate. Judges increasingly expect all parties to negotiate in good faith, making reasonable requests and offering reasonable accommodations.
    • Write it out.  A best practice is to recap agreements via written correspondence post-conference. Beyond ensuring that you are on the same page with opposing counsel, a written account gives you a defensible position to follow-up in court if needed.
    • Reach out to your judge for a ruling when you need it. Judges expect that you will cooperate and compromise in good faith, but if you truly find yourself at an impasse with opposing counsel you are better off reaching out to your judge early rather than waiting until the last minute.
    • With a substantive, well planned 26(f) meeting, you will resolve potential discovery issues before they arise.

27th Annual Technology Law Conference

On May 22, 2014, Lexbe Principal, Gene Albert, spoke at the 27th Annual Technology Conference, at the University of Texas School of Law, as part of a CLE panel on Technology, Law and eDiscovery. From UT CLE: “Within the context of continuous advances in technology, the panel discussed best practices in handling electronic discovery issues as they occur in litigation, including pre-litigation steps that may positively impact the results of future litigation.

Topics included computer usage policies, records management and information governance, as well as recent developments in eDiscovery law (e.g., predictive coding, proportionality, discovery of social media content, discovery of personal devices’ data pursuant to BYOD policy, sanctions, spoliation and obstruction); strategies for reducing unnecessary eDiscovery costs (e.g., early ESI identification and case assessment); and judicial approaches to managing eDiscovery in the courts (e.g., procedural issues, production disputes, noncooperation, noncompliance with court orders, production and privilege issues, proportionality, privilege waiver, model orders, and use of special discovery masters). Click here to download the presentation.

Lexbe All Set for 2014 ABA Techshow

Lexbe is excited to attend the 2014 ABA Techshow at the Chicago Hilton, March 27-29. Come by booth 509 to visit with Lexbe representatives who can give you more information about our latest updates and feature enhancements, as well as upcoming developments to our software and service offerings.

From the ABA: Technology is becoming fully integrated in the practice of law. Our legal work is now more dependent on the use of technology, in and out of the office. It helps us to practice more efficiently, serve clients more effectively, and better manage our daily lives.

As technology evolves, it can be difficult to stay informed of the latest advancements. With so many different options to choose from it can be difficult knowing what’s the most suitable to you and your practice. This is where ABA TECHSHOW can help.

The ABA TECHSHOW 2014 Conference and EXPO is where lawyers, legal professionals, and technology all come together. For three days, attendees learn about the most useful and practical technologies available. Our variety of CLE programming offers a great deal of education in just a short amount of time.

But there’s more to ABA TECHSHOW than the educational programs; attendees also get access to the EXPO Hall where legal technology vendors are eager to demonstrate their helpful products and services. Touch, Talk, and Test your way through more than 100 technology vendors.

For more information about the 2014 ABA Techshow here.

Lexbe Presenting at 27th Annual University of Texas Technology Law Conference

We are excited to announce that Lexbe will be presenting at the 27th Annual University of Texas Technology Law Conference being held May 23-24 at the Four Seasons Hotel in Austin, TX.

Gene Albert, Lexbe CEO, will be making a presentation titled Technology, Ethics, and Electronic Discovery on May 22 at 11:15 a.m.

Within the context of continuous advances in technology, Gene will discuss best practices in handling electronic discovery issues as they occur in litigation as well as pre-litigation steps a company may take to positively impact the results of future litigation. Topics discussed will include computer usage policies, records management and information governance. Additional topics include recent developments in eDiscovery law (such as predictive coding, proportionality, discovery of social media content, discovery of personal devices’ data pursuant to BYOD policy, sanctions, spoliation and obstruction); strategies for reducing unnecessary eDiscovery costs (such as early ESI identification and case assessment); and judicial approaches to manage eDiscovery in their courts (such as procedural issues, production disputes, noncooperation, noncompliance with court orders, production and privilege issues, proportionality, privilege waiver, model orders, and use of special discovery masters).

Now in its 27th year, UT Law’s Technology Law Conference brings together a nationally-recognized faculty of leading technology, licensing and M&A counsel along with experts in copyright, trademark, open source, public-private technology collaborations, and data privacy and security for two days of sophisticated and practical presentations and discussions. The program also draws a prominent audience and sponsorship from leading technology companies as well as their legal, financial and data security advisors. For more information click here

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