The Most Important E-Discovery Rule

Rule 26(f) is a means to communicate disputes to federal judges for early resolution

Time for a pop quiz. Can you name the most important of the so-called "e-discovery" amendments to the Federal Rules of Civil Procedure adopted in 2006? Candidates include, among others, Rule 26(b)(2)(B), which introduced the concept of "not reasonably accessible" electronically stored information; Rule 26(b)(5)(B), which established a uniform procedure among the United States district courts to assert claims of inadvertent production; Rule 34(b), which addressed form of production of ESI; and Rule 37(e), which purported to create a "safe harbor" from sanctions for loss of ESI under certain circumstances.

The correct answer: Rule 26(f), which expanded on the concept of "meet and confer" to include ESI.

Rule 26(f) first appeared in 1980. At that time, it was intended to deter abuse of the discovery process: "[C]ounsel who has attempted without success to effect with opposing counsel a reasonable program or plan for discovery is entitled to the assistance of the court." See Advisory Committee Note to 1980 Amendment of Rule 26(f). The procedure envisioned by this first incarnation of the rule was used only sparingly. See Advisory Committee Note to 1993 Amendment of Rule 26(f).

In 1993, Rule 26(f) was amended to, more or less, its current form. The 1993 amendment provided that, unless exempted by local rule or order, parties meet in person, discuss specific matters and submit their discovery proposals to the court. The 1993 amendment went hand-in-hand with the "greater need for early judicial involvement to consider the scope and timing of the disclosure requirements of Rule 26(a) and the presumptive limits on discovery imposed under these rules [the Federal Rules of Civil Procedure] or by local rules." The 1993 amendment paralleled the amendment of Rule 16, which was intended to "highlight the court's powers regarding the discovery process."

The year 2000 saw the elimination of the "in person" requirement:

"There are important benefits to face-to-face discussion of the topics to be covered in the conference, and those benefits may be lost if other means of conferring were routinely used when face-to-face meetings would not impose burdens. Nevertheless, geographic conditions ... may exact costs far out of proportion to these benefits." See Advisory Committee Note to 2000 Amendment of Rule 26(f).

The year 2000 also saw, in general terms, the elimination of local exemption from the Rule 26(f) process. Since 2000, Rule 26(f) and its duty to "meet-and-confer" has become a cornerstone of the federal civil litigation process. (Parenthetically, Rule 37(a)(1) imposes an analogous duty before discovery motions may be made.)

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Source: Law.com
By: Ronald J. Hedges