The Challenge of Rule 26(f)
Magistrate Judge Craig B. Shaffer
July 15, 2011
Fed.R.Civ.P.26(f)
• The nature and basis of claims and defenses
• The possibilities for prompt settlement
• Issues about preserving discoverable
information
• Developing a proposed discovery plan
A Discovery Plan
• Subjects on which discovery may be needed, whether
discovery should be conducted in phases or focused on
particular issues
• Issues about disclosure, discovery of ESI, including the
forms in which it should be produced
• Issues about claims of privilege
• Changes to the limitations on discovery and additional
limitations that should be imposed
Why Invest in the Rule 26(f) Process
• Well-managed cases settle faster, proceed to trial
more efficiently and cost-effectively
• The court’s perspective
• Avoid sanctions (Fed. R. Civ. P. 16(f) and Fed. R.
Civ. P. 37(f))
• The Sedona Conference Cooperation
Proclamation
Effective Preparation
• Who should you be talking to?
– Individuals knowledgeable about the client’s
records management practices, retention policies
– Key players directly involved in the subject matter of
the litigation
– Key players involved in business operations
– Potential e-discovery vendors
Information You Need
• Is current or historical ESI likely to be relevant
to the issues in the litigation
• Where is potentially relevant ESI maintained
(company-wide or specific business units)
• How is potentially relevant ESI maintained
(network servers, hard drives, the cloud)
• What are the client’s practices regarding
backing up and storing ESI, retrieval
capabilities
Tactical Considerations
• A Rule 26(f) strategy should reflect
– The facts of the case
– Is this a “stand alone” case or one of several
related matters
– The business needs of your client
– Your client’s resources
– The volume of potentially relevant ESI
– Your opponent’s level of experience
Logistical Considerations
• Rule 26(f) permits the court “to order the
parties or attorneys to attend the conference
in person”
• Who should attend the Rule 26(f) conference
– adopt a team approach
Preservation
• When did the preservation obligation attach,
what steps were taken to preserve relevant ESI
• Does the opposing party have a document
retention policy
• Is potentially relevant ESI at risk of being
destroyed or altered
• Is deleted information available in some other
format
Form of Production
• What is the opposing party’s system
architecture
• What systems or procedures govern the
opposing party’s e-mail collection, storage,
and retention
• What about the hard drives contained on
employee laptops and desktop computers
Scope of Production
• What data is not reasonably accessible
because of undue burden or expense
• What data is maintained by third-parties
• Word searches and search protocols
• Metadata
Proportionality
• Fed. R. Civ. P. 26(b)(2)(B) and 26(g)
• Balance the complexities, burdens and costs
of ESI preservation and production against the
relevance and practical need for that
information
• Phasing or staging discovery
Privilege Issues
• Preparation of privilege logs
– “The Facciola-Redgrave Framework,” 4 The
Federal Courts Law Review 19 (2009)
• “A federal court may order that the privilege or
protection is not waived by disclosure connected
with the litigation pending before the court - in
which event the disclosure is also not a waiver in any
other Federal or State proceeding.” Fed. R. Evid.
502(d)
Case Law
• Process Controls International, Inc. v. Emerson
Process Management, 2011 WL 1791714 (E.D.
Mo. 2011) (denying plaintiff’s request to enter
an “Electronic Discovery Order” governing the
discovery of ESI after concluding that the
parties had not made a good-faith effort
under Rule 26(f))to come up with their own
agreement)
Case Law
• In re Facebook PPC Advertising Litigation, 2011
WL 1324516 (N.D. Cal. 2011) (plaintiffs moved to
compel, noting that Facebook had refused to
agree to an ESI Protocol; given the parties’
pattern of discovery disputes, the court ordered
the parties to confer and agree to an ESI Protocol
that addresses the formats in which various
forms of ESI will be produced; “the argument that
an ESI Protocol cannot address every single issue
that may arise is not an argument to have no ESI
Protocol at all”)
Case Law
• Covad Communications Co. v. Revonet Inc.,
254 F.R.D. 147 (D.D.C. 2008) (noting that
“courts have reached the limits of their
patience with having to resolve electronic
discovery controversies that are expensive,
time consuming and so easily avoided by the
lawyers’ conferring with each other on such a
fundamental question as the format of their
productions of electronically stored
information”)
Resource Materials
• Suggested Protocol for Discovery of Electronically
Stored Information, District of Maryland
• Guidelines for Discovery of Electronically Stored
Information, District of Kansas
• Seventh Circuit Electronic Discovery Pilot
Program, Northern District of Illinois
• TheSedonaConference.org