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.
- Interview custodians to determine key players.
- 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?
- 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.
- 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:
- Define the scope of the eDiscovery requirements. Identify dates, custodians and places where data may be kept.
- 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.
- 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.
- Identify deduplication and culling methods to reduce reviewable documents and ESI.
- Set reasonable deadlines for when data exchanges need to happen.
- 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.
- 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.