Bill Hamilton’s 7 Deadly Sins of the Rule 26(f) ‘Meet-and-Confer’ Conference

The Federal Rules of Civil Procedure, at Rule 26(f), require parties in litigation to "confer as soon as practicable... (to) make or arrange for the disclosures... (and) discuss any issues about preserving discoverable information; and develop a proposed discovery plan."

These "meet and confer" sessions about electronically stored information (ESI) and e-discovery are crucial to a winning litigation strategy.

Successful litigators should enter this conference with the following three critical e-discovery goals. Serious consequences can follow if they are not attained:

To disclose, and achieve acceptance of, your data preservation decisions and to obtain your opponent's assurances that the data you seek to discover will be preserved,

To establish a data search goal of reasonable recall, search transparency, and search validity, (Recall is a measure of finding relevant documents. 0% recall means a search produced no responsive documents. 100% means it produced all of them in the selected universe. A requesting party wants high recall.

Transparency means disclosure of the search you ran. No search has 100% recall. Even a manual search misses a lot of relevant documents. You want transparency so if the search is challenged you can say the other side accepted it.

Validity means precision. Precise searches return only responsive documents.

Generally, you continue to refine searches to exclude non-responsive documents. If you are searching for "work order tickets" and run the search for "tickets" you may find speeding tickets. You would add "AND NOT speeding" to the search.

When you present your search terms, the opponent usually wants additions. You can run the new suggested terms on a random sample and show they produce only irrelevant documents. Show this to your opponent to elicit agreement with your search. Find ways to delete garbage while keeping positive hits.)

To protect against accidental or inadvertent disclosure of privileged communications.

To get the data in a format that is reasonably useable.

Here is how to avoid the 7 Deadly Sins of the Meet-and-Confer, the conference that sets the structure of a case's e-discovery process.


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Source: ACEDS
By: Bill Hamilton