FRCP 26(f) Meet and Confer
August 18, 2008 ALSP Houston Chapter
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Today’s Meeting
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Introduction
What is the Meet and Confer?
What must I do to comply with its requirements?
Practical Application
Questions and Answers
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(f) Conference of the Parties; Planning for Discovery.
(1) Conference Timing….the parties must confer as soon as practicable — and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).
(2) Conference Content; Parties’ Responsibilities.
In conferring…make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan.
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What does this really mean?
Timing
• To know the timing for the meet and confer, we have to know
when the scheduling order has to be issued
• FRCP 16(b) requires the scheduling order to be issued, “…within
the earlier of 120 days after any defendant has been served with
the complaint or 90 days after any defendant has appeared.”
• So, the meet and confer must take place within 99 days of service
or 69 days of appearance.
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Intro
What will be discussed at the Meet and Confer?
• Nature and basis of claims and defenses
• Possibility of prompt settlement
• Make arrangements for the Rule 26(a)(1) disclosures –
generally due 14 days after the Meet and Confer
• Discuss issues about preserving discoverable information
• Develop a proposed Discovery Plan
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What do I need to know about my ESI?
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The various types of ESI I have
Where the ESI is located
Approximately how much ESI I have
The subjects on which discovery may be needed
When discovery should be completed
Whether discovery should be conducted in phases or be limited to or
focused on particular issues (leads into key word discussions)
• The form in which the ESI should be produced
• Do I have legacy systems
• Is the data reasonably accessible
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What must I do to be prepared from a
practical standpoint?
• Talk to your client
• Interview multiple people within various departments
• Familiarize yourself with your clients IT infrastructure
• Know the contents of your client’s records retention policy and
how it has been implemented and audited
• Know the contents of your client’s litigation hold policy, who
is responsible for its implementation and how and who audits it
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Repository
How are the ESI provisions being applied
today?
• The rules are specific as to what is required of you at the meet
and confer.
• Many attorneys and corporations have taken a rather cavalier
attitude toward the requirements of 26(f)
• Failure to fully comply is risky
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Repository
What can I do to turn the Meet and
Confer to a strategic advantage?
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Early case assessment tools
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There are solutions available today that allow you to perform early case
assessments
You can perform culling, filtering and initial review at the same time
You can experiment with key words to reduce the corpus to a reasonable
amount while tracking the results of each search for later evidentiary
purposes if challenged
Be fully prepared to discuss all of the ESI discovery issues
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From a practical standpoint, it is very difficult to complain to the court at
a later date about the data if you were not prepared when you were
supposed to be
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Contact
Contact information
Mark L. Scroggins
General Counsel and VP Business Development
ControlDOCS
16800 North Dallas Parkway
Dallas, TX 75248
972.522.9388 Mobile
972.596.0404 Office
[email protected]
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