If you think “meet and confer” sounds like a banal checklist item that a lawyer can skim through during a three-minute phone call with opposing counsel, think again. Not only is it required under Federal Rule of Civil Procedure 26(f), but it is also a hallmark of good practice. Be prepared for multiple meet and confer sessions to tackle electronic discovery topics and know that it may be necessary to re-visit certain topics later in the discovery process.
To make the most of your meet and confer session, consider the following tips and best practices for this critical discovery meeting.
1. Come prepared. Before the meet and confer sessions, meet with your client and understand the basic parameters of their electronically stored information (ESI), including who the central custodians are, the relevant issues, and document retention policies. Determine strategies for identification and preservation of potentially relevant data. Find out when your client first learned of the potential litigation and make sure it has issued a legal hold notice and is complying with that notice.
2. Establish a schedule for discovery. Determine process, review, redaction, and production timetables as well as deadlines for motions for any discovery disputes that may arise. Discuss clawback agreements and how to handle inadvertently produced information. Determine how each party’s confidential, proprietary, and trade secret material will be protected.
3. Review search methodologies. Discuss the most comprehensive, yet economical, options for reviewing documents, including technology-assisted review. Brainstorm relevant search terms and concepts given the issues involved in the litigation. If you plan to incorporate technology-assisted review, negotiate workflow and protocols to ascertain accurate metrics and ensure defensibility.
4. Consider format. Be prepared to discuss production formats and discuss the unique Bates numbers or other identifiers that each party will use.
5. Be the early bird. Tackle the meet and confer as early as practicably possible in the discovery process. If feasible, conduct the session face-to-face, across the table from your opposing counsel. Consider bringing your IT professionals and/or a representative from your e-discovery company with the expertise to address the technical components of the e-discovery project.
By taking a comprehensive inventory of your client’s ESI and spending the time required to diligently prepare for the meet and confer, lawyers can help save clients’ time and money—not to mention engender the judge’s goodwill.
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