The Yale Law Journal

VOLUME
116
2006-2007
Forum

Meeting and Conferring

01 Dec 2006
Lee H. Rosenthal
  [C]ounsel have a duty to take the initiative in meeting and conferring to plan for appropriate discovery of electronically stored information at the commencement of any case in which electronic records will be sought. . . . At a minimum, they should discuss: the type of information technology systems in use and the persons most knowledgeable in their operation; preservation of electronically stored information that may be relevant to the litigation; the scope of the electronic records sought (i.e. e mail, voice mail, archived data, back up or disaster recovery data, laptops, personal computers, PDA’s, deleted data) the format in which production will occur (will records be produced in “native” or searchable format, or image only; is metadata sought); whether the requesting party seeks to conduct any testing or sampling of the producing party’s IT system; the burdens and expenses that the producing party will face based on the Rule 26(b)(2) factors, and how they may be reduced (i.e. limiting the time period for which discovery is sought, limiting the amount of hours the producing party must spend searching, compiling and reviewing electronic records, using sampling to search, rather than searching all records, shifting to the producing party some of the production costs); the amount of pre production privilege review that is reasonable for the producing party to undertake, and measures to preserve post production assertion of privilege within a reasonable time; and any protective orders or confidentiality orders that should be in place regarding who may have access to information that is produced.  

Every item on this daunting list may not apply or be important in every case. But in most cases, outside counsel will need to come to the meeting armed with information not only about the substantive issues in the case, but also about the client’s information system, including the sources and content of potentially discoverable information; how that information is created and stored; how it may be accessed, reviewed, and produced; and what may cause it to change, become less accessible, or even disappear.

The amendments increase the demands on lawyers early in litigation, reflecting the complexity of electronic discovery as compared to conventional discovery. With conventional discovery, even cases that involve large amounts of paper rarely require more than one Rule 26(f) meet-and-confer or more than one Rule 16 hearing. The problem has been that the meet-and-confer is too often treated as a perfunctory “drive-by” exchange. If Rule 26(f) has been approached in this fashion, the Rule 16 conference may accomplish little more than setting a few dates. Cases involving complex or extensive electronic discovery may require several Rule 26(f) conferences, as the lawyers learn about their own clients’ computer systems, exchange that information with opposing counsel, question or challenge the information received, reach agreements as to some issues, and disagree on others. More than one Rule 16 conference may also be necessary as judges resolve the disputes that emerge from the Rule 26(f) conference(s) and work with the parties to integrate electronic discovery into an overall case-management plan. Judges should require that parties not defer or postpone their meet-and-confer more than absolutely necessary for the first meeting to be effective, recognizing that more than one meeting may be required.

To manage these increased demands without unduly front loading a case and delaying attention to the merits, judges must be simultaneously demanding and patient. Judges should not relax the emerging standard for a meaningful meet and confer exchange on electronic discovery issues. But at the same time, judges must understand the difficulties lawyers face in trying to learn their clients’ information systems as well as the other disclosure and meet and confer subjects early in the case. Judges’ patience need not mean significant delays in lawyers’ meeting the meet-and-confer obligations. Rather than postpone compliance, which inevitably delays all other steps in the litigation, judges should be alert to the need to engage in the process, even in this very early stage of a case.

Judges can help ensure that the demands of the new meet-and-confer obligations are not unreasonable by requiring requesting parties to eschew overbroad demands for information, requiring responding parties to identify what sources of information are likely to be most helpful and where they are likely to be found, and requiring all parties to work toward a reasonable discovery protocol. In cases that require more than one meet-and-confer session, a judge could require the parties to report on each session and, if necessary, have a Rule 16 conference after each session to resolve disputes as they arise.

Electronic discovery imposes new requirements on lawyers and litigants to learn large amounts of information about their own and their adversary’s information systems, early in the case. The challenge for judges is to manage this process if the lawyers are unable to agree, in a way that achieves the purpose of the expanded meet-and-confer and Rule 16 conference but does not impose unrealistic demands on the parties or unduly delay the litigation.

Lee H. Rosenthal is a United States District Judge for the Southern District of Texas. Rebecca Bolin, Yale Law School ‘06, provided helpful assistance and suggestions.

Preferred Citation: Lee H. Rosenthal, A Few Thoughts on Electronic Discovery After December 1, 2006, 116 Yale L.J. Pocket Part 167 (2006), http://yalelawjournal.org/forum/meeting-and-conferring.

A Few Thoughts on Electronic Discovery After December 1, 2006