Fall 2009
Committee on Pretrial Practice & Discovery
Slaying the E-Discovery Beast Through an
Effective Rule 26(f) “Meet and Confer”
By Brad H. Sysol & Kendra Huff
O
ne of the most significant changes resulting from the
2006 amendments to the Federal Rules of Civil Procedure
was the addition of Rule 26(f), which requires the parties’ counsel to “meet and confer” in advance of the scheduling conference to discuss a wide range of issues, including the
preservation of potentially relevant evidence, the disclosure and
exchange of electronically stored information (ESI), the form in
which such information should be produced, and the protection
of privileged information and materials. In today’s age of ediscovery, this early meeting between counsel is even more critical as a means by which to manage and control certain aspects
of the case, such that the cost of e-discovery or the failure to
preserve a key piece of evidence—rather than the merits of the
claims and defenses—becomes the paramount consideration
in deciding whether to settle, when, and for what amount.
Accordingly, counsel should use the Rule 26(f) “meet and confer”
to engage in an in-depth discussion of the following topics with
the goal of developing a discovery plan that makes sense in terms
of burden and cost in relation to the amount at stake.
Scope of Data Preservation and
Production Plans
The duty to preserve evidence arises when a party knows, or
reasonably should know, that litigation is imminent.1 The importance of the duty to preserve cannot be understated. Magistrate
Judge Sidney I. Schenkier of the U.S. District Court for the
Northern District of Illinois observed that “when a charge is
made that relevant information has been destroyed, and especially
when a charge is made of intentional destruction, it is a charge
that strikes at the core of our civil litigation system.”2 The failure to preserve relevant evidence can lead to dire consequences
including default judgments, monetary sanctions, and/or adverse
inference instructions. For example, in a landmark electronic discovery case, a jury awarded a $29 million verdict to the plaintiff,
in part, due to an adverse inference instruction given as a result of
a party’s failure to satisfy its duty to preserve.3
The Rule 26(f) meeting provides an opportunity for counsel
to discuss issues concerning the preservation of potentially
relevant ESI, which is critical due to the substantial cost
associated with maintaining large volumes of ESI and the risk
of losing such information (or rendering it accessible only at
a much higher cost) due to automatic deletion and routine
overwriting of backup tapes. Accordingly, one of the primary
goals of the Rule 26 “meet and confer” should be to lessen the
client’s cost to preserve voluminous ESI and to reduce the risk
Brad H. Sysol ([email protected]) is a principal and Kendra
Huff ([email protected]) is an associate with Miller, Canfield,
Paddock and Stone in Kalamazoo, Michigan.
of sanctions by reaching an agreement with opposing counsel
on potentially relevant ESI that must be preserved. Failing to
narrow the preservation obligation with respect to ESI can
result in excessive costs to the client, and in some cases, may
paralyze the company’s business operations.
So how should counsel go about lessening their client’s
preservation burden with respect to ESI? During the Rule 26(f)
conference, counsel should seek to narrow the scope of their
preservation plan by: (1) narrowing the list of custodians of
potentially relevant records, (2) limiting the relevant time
frame, (3) agreeing on a narrow list of search terms to harvest
potentially relevant ESI for relevancy review, and (4) excluding
irrelevant computer systems. In short, counsel’s goal should
be to narrow the focus to what is truly relevant to the case
so that instead of providing a costly and burdensome blanket
preservation plan, it can target with precision the ESI that has
any bearing on the case. If a reasonable preservation plan in
relation to the value of the case cannot be reached, counsel
should discuss the option of cost shifting at the “meet and
confer” before turning to the court for a preservation order.
It is also important to recognize that before committing
your client to a preservation plan for ESI, counsel should have
a clear understanding of the client’s information technology
infrastructure and the likely costs associated with preservation
requirements. In most cases involving a corporate client, counsel
should consult with the client’s IT personnel to understand the
limitations of the client’s document-retention system, determine
what is accessible versus inaccessible data, and evaluate the size
and scope of potentially relevant information. Failing to do so
may result in counsel agreeing to a binding preservation plan
under which the client must incur substantial costs. Underscoring
the importance of this point, an attorney in a recent case agreed
to use search terms to locate potentially responsive emails on his
client’s backup tapes. The attorney apparently did not understand
the magnitude of the agreement and/or the client’s IT system.
The result was a $6 million bill for his client to process, review,
and produce the data containing the search terms.4 In short,
know the potential cost of the preservation plan before advising
your client to agree.
Format for Production of ESI
Rule 34(b) requires a party requesting ESI to specify the format
in which the information should be produced. If the format
for production is not specified by party agreement, Rule 34(b)
permits the responding party to produce ESI either in the
form in which it is ordinarily maintained or in a form that is
reasonably usable.
Rule 26(f)(3) explicitly directs counsel to discuss during the
“meet and confer” the form or format in which ESI should be
Published in Pretrial Practice, Volume 18, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system
without the express written consent of the American Bar Association.
PPnD_Fall09.indd 7
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Committee on Pretrial Practice & Discovery
produced. Doing so not only facilitates the application of Rule
34(b), but also forces counsel to begin thinking strategically as
to the types of ESI that their client may need from an opposing
party, and the most effective and efficient way to review and utilize such data. These discussions will also help avoid the expense
or delay in producing documents in inappropriate forms. Some
suggested topics for discussions on production formats during a
Rule 26(f) conference include the review application or platform a party intends to use and the production and the load files
required, metadata field specifications, the types of files that will
be produced, and whether the production will include searchable documents.
Review Platforms and Load Files
A review application platform allows a party to manage the
documents (both hard copy and ESI) it collects and produces
as well as those produced by the opposing party. It provides the
tools for a party to search and review data, to designate and
produce data, and to organize data so that it can be efficiently
and effectively used throughout the course of litigation.
Counsel will need to be cognizant of the type of review
platform they will use to specify in a discovery plan the format
in which opposing counsel is required to produce documents.
This issue does not arise if parties exchange documents in
hard copy. However, in today’s legal environment and given
the proliferation of ESI, even very small litigation matters
tend to include the collection of ESI and raise the issue
of what application or platform will be used to work with
the data produced that, in turn, dictates the particular load
files. Parties should therefore include in their discovery plan
the requirement that opposing counsel produce documents
with load files compatible with the chosen review platform.
Otherwise, parties may spend time dealing with and correcting
file formats that the review application cannot accommodate.
In addition, the parties should include in their discussion
the types of files that will be included in the production. For
example, if the production will include a file type that does
not typically display well in a static TIFF or PDF image format
such as large Microsoft Excel spreadsheets, the parties should
discuss whether the production should include any native files
and how this impacts the load file requirements.
Metadata Specifications
As electronic data is processed, the underlying data associated
with a document or metadata can be outputted to specific data
fields. Metadata is essentially data about data. It describes the
attributes and contents of an original document including the
who, what, when, where, and why questions about the data.
Different metadata exists for email than for “loose” electronic
documents such as Microsoft Word or other office electronic
documents. Just a few examples of metadata fields include
the document’s author, recipients, date sent, date created, file
name, and file path. Parties should discuss during a Rule 26(f)
conference which metadata should be included in the load file
when documents are produced, along with the field naming
protocol for the data file. The parties should exchange a list of
requested metadata fields and a description of each field during
the conference. Counsel may find it beneficial to request the
Fall 2009
same standard metadata fields for all litigation, but the merits
of each case will influence which additional fields should be
requested. If a party is silent with respect to field specifications,
the party may receive only basic fields such as a document’s
production beginning and end numbers and custodian.
Searchable Document Content
The parties should include in their discovery plan whether hard
copy and electronic documents will be produced in a searchable
format. Hard copy documents that are scanned and produced
with optical character recognition (OCR) in the load files
are searchable. OCR translates images of text into actual text
characters, which makes it possible to search the text. ESI is
produced as searchable if either extracted text or OCR is produced
along with the static images. A file produced natively, such as a
Microsoft Excel spreadsheet, is also searchable.
Most attorneys faced with the prospect of reviewing documents
electronically will include the requirement that produced
documents include OCR and/or extracted text. The cost for
processing and obtaining OCR and/or extracted text should be
explored and evaluated in light of the efficiency brought by being
able to easily search, identify, and manage key documents during
the course of the litigation.
Privileged Information and Privilege Logs
The cost and burden of performing a privilege review and
creating a privilege log can be significant in any case, but
especially in a large e-discovery case. With approximately 210
billion emails sent per day,5 it is no coincidence that the cost
to conduct a privilege review of ESI has and continues to rise
dramatically, such that it may influence a party’s settlement
strategy more than the merits of the claims and defenses
at issue. The enormous costs potentially associated with
the review of ESI are illustrated by a case in which Verizon
Communications spent over $14 million reviewing and logging
2.4 million documents for relevancy and privilege.6 Rule 26(f)
(d)’s requirement that counsel discuss privilege issues at the
“meet and confer” provides an opportunity to avoid having the
strategy of your case dictated by the cost of a privilege review
or preparation of a privilege log where large amounts of emails
or other electronic documents are involved. Counsel should
consider the following issues.
Rule 502(d) Order
Recently passed Rule 502(d) of the Federal Rules of Evidence
authorizes a federal court to enter a non-waiver order. Rule
502(d) provides that the disclosure of privileged information,
even where intentional, does not constitute a waiver of the
attorney-client privilege in that proceeding or in any other state
or federal proceeding, and as to all parties and nonparties. In
federal court proceedings, counsel should make it a matter of
routine to discuss with opposing counsel whether the parties
should stipulate to entry of a Rule 502(d) order at the Rule 26(f)
meeting so as to protect against the inadvertent disclosure of a
privileged document. Particularly during large-scale document
reviews, it is often inevitable that some privileged documents are
inadvertently produced. The 502(d) order will enable the parties
to use technology in conjunction with a standard document
Published in Pretrial Practice, Volume 18, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system
without the express written consent of the American Bar Association.
PPnD_Fall09.indd 8
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Fall 2009
review to reduce the time and cost associated with a privilege
review without the fear of waiving the privilege.
Arrange a “Quick Peek”
A Rule 502(d) order also allows the parties to enter into a
“quick peek” agreement whereby (1) the responding party
makes potentially relevant information available to opposing
counsel for review; (2) opposing counsel flags which information
is relevant to its requests; and (3) the responding party then
conducts a responsiveness and privilege review of only the flagged
information. The “quick peek” agreement allows the parties to
avoid the heavy costs of a privilege review—without waiving any
privileges. While this type of agreement will not work in every
case or every matter, and may be wholly unacceptable to some
clients or inadvisable for good reasons, it is worthy of serious
consideration as a way to control the cost of discovery. A word
of caution: A “quick peek” arrangement should never be used
without a Rule 502(d) order in place. Without such an order, the
parties run the risk of waiving the privilege as to nonparties to the
suit or as to subsequent or collateral proceedings.
Privilege Log Protocols
When it comes to privilege logs today, emails and email strings
are the bane of litigators in e-discovery-intensive cases. Preparing
a privilege log in a large e-discovery case is extremely costly and
presents many thorny issues. For instance, should each segment
of an email string be identified on the log? Should the log
identify blind-copy recipients? How specifically should the log
describe the communication? The answer to these questions has
a direct impact on the cost of preparing a privilege log, and also
potentially on whether a privilege has been waived by failing to
adequately assert the privilege.
To avoid these issues, and to minimize the cost of preparing
the privilege log, counsel should use the “meet and confer”
to negotiate the methodology the parties will use to create
privilege logs, as well as their contents. Approaches to
both issues can vary greatly. An agreed-upon protocol will
often help both parties reduce the burden associated with
creating privilege logs. For example, the parties may agree
to a protocol where a search term list of attorney names and
Committee on Pretrial Practice & Discovery
other common litigation terms (e.g., “deposition”) is run
against the raw ESI data. Any documents where such terms
are found is then automatically set aside and withheld for
privilege and does not need to be reviewed or placed on a log.
The parties may also agree to exchange an initial privilege log
generated solely by technology using the metadata fields in
the documents, eliminating the time and cost associated with
human preparation of a log. After reviewing these “computergenerated” logs, the parties can then exchange a list of specific
documents that they want to see on a traditional log. Such
agreements will reduce the time spent creating a privilege log
and minimize delays in the production of documents.
Conclusion
In today’s age of e-discovery, the Rule 26(f) “meet and confer”
should not be viewed as an uneventful, meaningless, or even
simple event in the litigation process. Instead, it is a strategically
critical point where counsel must protect their client from the
risk of spoliation of evidence and a discovery process that can
be both unduly burdensome and costly. Early and successful
negotiation of the issues mentioned above can be the catalyst
to a reasonable discovery process and, in the end, a successful
result for your client.
Endnotes
1. Mosaid Techs. Inc. v. Samsung Elecs. Co., 348 F. Supp.2d 332,
336 (D. N.J. 2004); Quinby v. West LB AB, 245 F.R.D. 94 (S.D.N.Y.
2006) (quoting Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d
Cir. 2001).
2. Danis v. USN Comm, 2000 WL 1694325 (N.D. Ill. Oct 23,
2000).
3. Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003);
Zubulake v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004).
4. In re Fannie Mae Securities Litig., 552 F.3d 814 (D.C. Cir. 2009).
5. See David Allen, Emails Reach 210 Billion Per Day, available at
www.techwatch.co.uk/2009/01/26/emails-reach-210-billion-per-day (last
visited Jan. 26, 2009).
6. See Adreas Kluth, The Big Data Dump, The Economist,
August 28, 2008, available at www.economist.com/businessfinance/
displayStory.cfm?story_id=12010377. See also, Daniel Fisher, The Data
Explosion,. Forbes, October 1, 2007, available at www.forbes.com/
forbes/2007/1001/072.html.
Published in Pretrial Practice, Volume 18, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system
without the express written consent of the American Bar Association.
PPnD_Fall09.indd 9
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