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Considering Meet and Confer?
Considering Meet and Confer?
The
Application
of Federal
Rule 26(f)
ThePractical
Practical
Application
of Federal
Rule
26(f)
1
1
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Considering Meet and Confer?
Considering Meet and Confer?
The Sequence and Chronology of Meet and Confer
The Sequence and Chronology of Meet and Confer
1
1
Duty
Duty to
toPreserve
Preserve
Zubalake
Warburg LLC,
220 F.R.D.
F.R.D.212,
212, 218
218 (S.D.N.Y.
(S.D.N.Y.2003)
Zubalake v.
v. UBS
UBS Warburg
LLC, 220
2003)
2
2
Complaint
ComplaintServed
Served
Meet
Meet and
and Confer
Confer Clock
Clock Starts
Starts
3
3
Meet
Meetand
andConfer
Confer
No
Later Than
Than 21
21 Days
DaysPrior
Priorto
to Scheduling
Scheduling–- Rule
Rule 26(f)*
26(f)*
No Later
4
4
Days
Scheduling Conference
Scheduling
Conference
Within 120
of Compliant
Compliant -- Rule
Rule 16(b)*
16(b)*
Within
120 Days
Days of
<99
<120
1
1. Initiate
InitiatePreservation
Preservation
2.
2. Scope
ScopeData
Dataand
andResources
Resources
3.
3. Estimate
EstimateCosts
Costs
4. Determine
DeterminePlan/Proposal
Plan/Proposal
** Unless
Court
Unless Otherwise
OtherwiseDirected
DirectedBy
By The
The Court
Conduct
Conduct eDiscovery
eDiscoveryTasks
Tasks Per
Per
Form
35 and/or
and/or Meet
Form 35
Meet and
and Confer
Confer Agreement
Agreement
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Pre Meet and Confer Preparation
Pre Meet and Confer Preparation
Initiating Preservation
Initiating Preservation
Trigger:
Anticipation
of Litigation
Trigger:Reasonable
Reasonable
Anticipation
of Litigation
Zubalake v.
Warburg LLC,
220 F.R.D.
212, 218
218 (S.D.N.Y.
(S.D.N.Y.2003)
2003)(Zubulake
(Zubulake IV)
Zubalake
v. UBS
UBS Warburg
LLC, 220
F.R.D. 212,
IV)
“Once
litigation,
it must
suspend
its routine
document
retention/destruction
“Once aa party
partyreasonably
reasonablyanticipates
anticipates
litigation,
it must
suspend
its routine
document
retention/destruction
policy
and
put
in
place
a
‘litigation
hold’
to
ensure
the
preservation
of
relevant
documents.”
policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.”
Tasks:
Preservation
Considerations
Tasks:Logical
Logical
Preservation
Considerations
1.
Trigger
Event
1. Document
DocumentData/Time/Reason
Data/Time/Reasonforfor
Trigger
Event
2.
Temporarily
Suspend
Document
Destruction
Policies
2. Temporarily Suspend Document Destruction
Policies
3.
Hold
Planning
Team*
to Establish
Litigation
Hold Hold
Strategy
3. Meet
Meetwith
withLitigation
Litigation
Hold
Planning
Team*
to Establish
Litigation
Strategy
4.
Procedures
4. Review
Review Document
DocumentRetention
RetentionPlan
Planand
and
Procedures
5.
Procedures
5. Review
Review Litigation
LitigationHold
Hold
Procedures
6.
Identify
Potentially
Relevant
Custodians
(By(By
Name
andand
By By
Role)
6. Identify Potentially Relevant
Custodians
Name
Role)
7.
Identify
Legal
And
Technology
Leads
for
Specific
Litigation
Hold
Effort
7. Identify Legal And Technology Leads for Specific Litigation Hold
Effort
8.
Hold
Letters
to Relevant
Custodians**
(Name/Role)
8. Prepare
Prepare and
andDisseminate
DisseminateLitigation
Litigation
Hold
Letters
to Relevant
Custodians**
(Name/Role)
9.
Destruction
Policies
as Appropriate
9. Adjust/Amend
Adjust/AmendDocument
Document
Destruction
Policies
as Appropriate
10.
Potentially
Relevant
Custodians
(Name/Role)
to Confirm
Understanding
of Hold of
Letter
10. Follow
FollowUpUpwith
with
Potentially
Relevant
Custodians
(Name/Role)
to Confirm
Understanding
Hold Letter
** Minimum
Potential
Matter
Lead eDiscovery
(Legal), Team
eDiscovery
Team
Lead,
IT Management
Team Lead,
Minimum ofofPotential
Matter
Lead (Legal),
Lead, IT Team
Lead,
Records
Team Lead.
Records
Management
Team
Lead. Counsel
**
To
Opposing Counsel
Counsel
Opposing
CounselActivated
Activated“Trigger”.
“Trigger”.
**Send
Send Copy
Copy
To Opposing
ifif Opposing
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Pre Meet and Confer Preparation
Pre Meet and Confer Preparation
Scoping Data and Resources
Scoping Data and Resources
Target:
datadata
is to be
preserved?
Target:What
What
is to
be preserved?
Zubulake
at 217
217 -- aa party
every
shred
of paper,
every
e-mail
or electronic
Zubulake IV,
IV, 220
220 F.R.D.
F.R.D. at
partyneed
neednot
not“preserve
“preserve
every
shred
of paper,
every
e-mail
or electronic
document,
and
every
backup
tape”
before
or
during
actual
or
threatened
litigation.
document, and every backup tape” before or during actual or threatened litigation.
Trevino, supra,
preserve
“what
it knows,
or reasonably
shouldshould
know is
Trevino,
supra, 969
969S.W.2d
S.W.2d at
at957
957- –a aparty
partymust
must
preserve
“what
it knows,
or reasonably
know is
relevant ininthe
calculated
to lead
to the
of admissible
evidence,
is reasonably
relevant
theaction,
action,is isreasonably
reasonably
calculated
to lead
to discovery
the discovery
of admissible
evidence,
is reasonably
likely
discovery,
[or][or]
is the
subjection
of pending
discovery
sanction.”
likely to
tobe
berequested
requestedduring
during
discovery,
is the
subjection
of pending
discovery
sanction.”
Tasks:
Data
Scoping
and Resource
Considerations
Tasks:Logical
Logical
Data
Scoping
and Resource
Considerations
•• Determine
thethe
data
to be
is located.
Determinewhere
where
data
to preserved
be preserved
is located.
•• Determine
the
size
of
the
accessible
volume
of
to betopreserved.
Determine the size of the accessible volumedata
of data
be preserved.
•• Determine
what
resources
may
be
needed
to
collect
accessible
data.data.
Determine what resources may be needed to collect accessible
need
forfor
access
to to
inaccessible
data.
•• Determine
Determinethe
the
need
access
inaccessible
data.
potential
resources
thatthat
maymay
be needed
to collect
inaccessible
data. data.
•• Estimate
Estimatethe
the
potential
resources
be needed
to collect
inaccessible
•• Determine
might
be be
able
to serve
as aaspotential
expertexpert
(- 30(b)(6)
-) witness
for the electronic
Determinewho
who
might
able
to serve
a potential
(– 30(b)(6)
–) witness
for the electronic
discovery
effort.
discovery effort.
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Pre Meet and Confer Preparation
Pre Meet and Confer Preparation
Estimating Costs
Estimating Costs
Target:
of Potential
eDiscovery
Costs in Terms
of Time,
Risk, of
andTime,
MoneyRisk, and Money
Target:Understanding
Understanding
of Potential
eDiscovery
Costs
in Terms
Tasks:
eDiscovery
Cost Planning
Considerations
Tasks:Logical
Logical
eDiscovery
Cost Planning
Considerations
Time Considerations
Time
Considerations
opposing
counsel
hashas
an an
evidential
basisbasis
for pursuing
the case?
•• Does
Doesititappear
appearthat
that
opposing
counsel
evidential
for pursuing
the case?
•• What
electronic
discovery
resources
will will
be needed
to conduct
a complete
document
review?review?
Whattype
typeofof
electronic
discovery
resources
be needed
to conduct
a complete
document
•• Based
requirements
for “Meet
and Confer”
preparation?
Basedon
onFRCP
FRCP 26(f)
26(f) ,, what
whatare
arethe
thetimeline
timeline
requirements
for “Meet
and Confer”
preparation?
•• Based
on
potential
evidence
and
resource
requirements,
will
it
be
more
cost
effective
to
settletoorsettle
pursue?
Based on potential evidence and resource requirements, will it be more cost effective
or pursue?
Risk Considerations
Considerations
Risk
•• Will
discovery
approach
reduce
the risk
missing
potentially
responsive
documents?
Willthe
theelectronic
electronic
discovery
approach
reduce
the of
risk
of missing
potentially
responsive
documents?
•• Will
the
electronic
discovery
technologies
used
minimize
risks
associated
with
the
transfer
of
data
between
Will the electronic discovery technologies used minimize risks associated with the transfer of
data between
organizations
and
platforms?
organizations and platforms?
discovery
effort
be conducted
in a legally
defensible
manner?
•• Will
Willthe
theelectronic
electronic
discovery
effort
be conducted
in a legally
defensible
manner?
Cost
Cost Considerations
Considerations
•• Based
andand
acceptable
risk,risk,
whatwhat
is theisbest
electronic
discovery
approach
congruent
Basedon
ontime
timerequirements
requirements
acceptable
the best
electronic
discovery
approach
congruent
with
firm
and
client
financial
resources
and
cost
management
objectives?
with firm and client financial resources and cost management objectives?
discovery
systems
andand
expertise
in place
to conduct
the electronic
discovery
tasks tasks
•• Do
Dowe
wehave
havethe
theelectronic
electronic
discovery
systems
expertise
in place
to conduct
the electronic
discovery
using the
approach
congruent
withwith
clientclient
financial
and cost
objectives?
using
thebest
bestelectronic
electronicdiscovery
discovery
approach
congruent
financial
andmanagement
cost management
objectives?
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Pre Meet and Confer Preparation
Pre Meet and Confer Preparation
Determining Plan/Proposal
Determining Plan/Proposal
Target:
a Recommended
Discovery
Plan for presentation
to opposing counsel
at the
Target:Develop
Develop
a Recommended
Discovery
Plan for presentation
to opposing
counsel at the
Meet
Confer
Meeting.
Meetand
and
Confer
Meeting.
Tasks:
Discovery
Plan Plan
Preparation
( Requirements
and Time/Risk/Cost
Estimates )
Tasks:Logical
Logical
Discovery
Preparation
( Requirements
and Time/Risk/Cost
Estimates )
Timing Considerations
Timing
Considerations
of of
FRCP
16(b)
Scheduling
Conference
•• Verify
Verifydate/time
date/time
FRCPRule
Rule
16(b)
Scheduling
Conference
•• Coordinate
Opposing
Counsel
on on
date/time
for Meet
and Confer
Conference*
Coordinatewith
with
Opposing
Counsel
date/time
for Meet
and Confer
Conference*
Plan/Proposal
Plan/ProposalConsiderations
Considerations
Plan
(What
would
youyou
like like
to do?)
•• Determine
Determinebest
bestcase
caseDiscovery
Discovery
Plan
(What
would
to do?)
objective
Discovery
Plan
(What
would
you expect
to do?)
•• Determine
Determinemost
most
objective
Discovery
Plan
(What
would
you expect
to do?)
•• Determine
case
Discovery
Plan
(What
areare
youryour
limits
of plan
acceptance?)
Determineworst
worst
case
Discovery
Plan
(What
limits
of plan
acceptance?)
Document
DocumentConsiderations
Considerations
forfor
each
Plan
(Guidelines
for Form
35 Completion/Negotiation)
•• Develop
DevelopForm
Form3535“Drafts”
“Drafts”
each
Plan
(Guidelines
for Form
35 Completion/Negotiation)
asas
required
by by
FRCP
26(a)
•• Prepare
Prepareand
andSubmit
SubmitDisclosures
Disclosures
required
FRCP
26(a)
* Required
Required as
as soon
soon as
as possible,
possible, NLT
NLT 21
21 days
days prior
prior to
to Scheduling
Scheduling Conference (FRCP Rule 26 (f)(1)).
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Understanding Meet and Confer Tasks
Understanding Meet and Confer Tasks
Meet and Confer Meeting
Meet and Confer Meeting
Preservation Considerations
Preservation
Considerations
Data
Scope
•• Define/Determine
Define/Determine
Data
Scope
•• Define
Accessible
Data
DefineAccessible
Accessibleand
andUnreasonably
Unreasonably
Accessible
Data
•• Define/Determine
Handing
of
Unreasonably
Accessible
DataData
Define/Determine Handing of Unreasonably Accessible
Electronic
Electronic Discovery
DiscoveryIssues
Issues
•• Determine
Handling
of of
Duplicates,
Masters,
andand
Attachments
Determine Handling
Duplicates,
Masters,
Attachments
Search
Terms
and
Search
Methodologies
•• Determine
DetermineKeyword
Keyword
Search
Terms
and
Search
Methodologies
Approach
•• Determine
DetermineCost
CostShifting
Shifting
Approach
Production
ProductionConsiderations
Considerations
•• Determine
Formats
DetermineProduction
Production
Formats
•• Determine
Priorities
DetermineProduction
Production
Priorities
•• Determine
Approach
for
Special
Markings
(Privacy
Act,Act,
Confidential/Data
Secret,
BatesBates
Schema)
Determine Approach for Special
Markings
(Privacy
Confidential/Data
Secret,
Schema)
Privilege
Privilege Considerations
Considerations
of of
Sensitive
Data
(Privacy
Act,Act,
Confidential/Secret
Data)Data)
•• Determine
DetermineHandling
Handling
Sensitive
Data
(Privacy
Confidential/Secret
Clawback
Agreement
•• Determine
DetermineNeed
Needforfor
Clawback
Agreement
•• Determine
Quick
Peek
Agreement
DetermineNeed
Needforfor
Quick
Peek
Agreement
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Understanding Meet and Confer Tasks
Understanding Meet and Confer Tasks
Post Meet and Confer Follow Up
Post Meet and Confer Follow Up
Verify
Verify
(Update
andand
Audit)
•• Litigation
LitigationHold
HoldCompliance
Compliance
(Update
Audit)
•• Keyword
KeywordSearches
Searches(Test)
(Test)
Document
Document
•• Litigation
LitigationHold
HoldEfforts
Efforts
•• Complete
CompleteForm
Form3535
•• Complete
Order
(As(As
Required
By By
Court)
CompleteProposed
ProposedScheduling
Scheduling
Order
Required
Court)
Report
Report
14 14
Days
of Meet
and and
Confer
Conference)
•• Submit
SubmitForm
Form3535ToToCourt
Court(Typically
(Typicallywithin
within
Days
of Meet
Confer
Conference)
(As(As
Required
By By
Court)
•• Submit
SubmitProposed
ProposedScheduling
SchedulingOrder
Order
Required
Court)
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OrangeLT.com
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