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Defensible Strategies for the ‘Meet and Confer’

Oct. 18, 2011, 4:00 AM

Holding meaningful “meet and confers” still represents a challenge for many attorneys, who find themselves struggling to comply with the Federal Rules of Civil Procedure, relevant law, and the expectations of judges.

According to Fed. R. Civ. P. 26(f), the two sides in a litigation are required to meet and confer in order to negotiate the terms of e-discovery: what data will be disclosed, what format will be used when discoverable materials are produced to the other side, what the timelines are, and other issues.

Along with Rule 26(f), most states and some international jurisdictions require some type of meet and confer.

In reality, today’s e-discovery issues are so complicated that the meet and confer may span several meetings or telephone conferences.

Working with opposing counsel, and not against them, is unknown territory for many attorneys. They are used to an adversarial approach to e-discovery.

Even when counsel are willing to cooperate, they may feel they do not have enough information to form a meaningful collaboration. An initial meet and confer is supposed to be held “as soon as practicable,” or at least 21 days before a scheduling conference, according to the Federal Rules of Civil Procedure. That’s extremely early in the life of a matter. It is little wonder that many sides will not be able to cover all the issues in one meeting and will have to meet again.

Know Your Client’s IT Environment

During the stress of litigation and the rush to meet deadlines, it may be tempting for an attorney to jump right in and figure out e-discovery as the case proceeds. However, by documenting and proving the processes used during e-discovery, counsel can head off potential concerns that the steps taken were not appropriate or sufficient. Part of that involves becoming familiar with the client’s IT environment ASAP. This should include speaking with key stakeholders in IT and the business.

In today’s business world, many companies outsource some or all the IT function, such as the hosting and management of the e-mail system. Accordingly, counsel will need to work closely with these third-party providers as well.

Understand Data Sources and Retention Policies.

Before the initial meet and confer, counsel should have a working knowledge of the client’s data sources and retention policies. This knowledge might include the following:

  • a data map that illustrates how information flows into and out of the organization;
  • information about the types of hardware and software potential custodians use; and
  • familiarity with how long key data is maintained and whether it is being overwritten according to a schedule.

It’s not enough to just read the data retention policy in the employee handbook, however. Many companies may have policies on the books that are not actively implemented, either by IT or by individual employees.

Determine What Sources Are Relevant to the Case.

In some litigations, e-mail may make up the bulk of the potentially responsive data. In other situations, it may be Excel spreadsheets, voicemails, or even paper documents. In order to create an advantage for the client during the meet and confers, the attorney must have a solid idea of what types of data will be most prevalent during e-discovery.

The scope of data sources that may be potentially responsive is large and growing all the time. It could include e-mail, network electronically stored information, known as “ESI,” collaborative systems such as SharePoint and eRoom, e-mail archives, and other types. Social media data sources such as Facebook postings and LinkedIn messages are becoming increasingly common.

Ask Whether Sources Are Too Costly or Inaccessible.

At the first meet and confer, counsel will also want to have a sense of how easy it will be to review and produce potentially responsive data. Some data may be backed up on tapes, while other data may exist on legacy systems. From a defensibility point of view, counsel will want to know as early as possible what the cost could be, what position to take, and whether to commit to producing certain data right away.

Engage and Be Proactive

Counsel should be actively involved in the meet and confer process and treat it as a dialogue. Counsel does not want to end up agreeing with everything the other side proposes. Counsel should prepare to be proactive and make suggestions and proposals.

In the past, litigants may have treated meet and confers as informal discussions, but this usually is not a good idea. Some judges are becoming increasingly frustrated with the loose definition of “meet and confer.” By setting aside a specific time to hold the meet and confer, at least for the first meeting, both sides can concentrate on the issues at hand.

An initial formal meeting will also help everyone focus on the details. Both sides need to cover key areas such as preservation, timelines, date ranges, data sources, custodians, keywords, and production, at the very least. This is the best medicine for decreasing the costs involved with e-discovery. It will also lay the foundation for subsequent meetings. Depending on the issues, counsel may want to meet face-to-face, or telephone conferences may suffice.

Document Everything Discussed

Counsel should put in writing and report to the court everything discussed by the parties and opposing counsel. This will help prove that the processes used were well thought out and ensure there is no ambiguity later on.

At a minimum, counsel should document the following:

  • the proposals that were offered for how discovery should be conducted;
  • the matters on which both sides have agreed; and
  • the issues on which the opposing sides were unable to reach agreement.

Be Reasonable and Proportional

As the amount of ESI spirals and more types of data sources are invented, it has become easier to lose control of the e-discovery budget. Sometimes, e-discovery costs can quickly outstrip what the case is worth. One side may decide to make life difficult for the other, just to cause problems. Judges are growing increasingly intolerant of this type of approach.

For example, if a case involves 10 employees, the records for another 100 employees should not be requested. If backup tapes are not necessary to the case, counsel should not fight for them. If counsel chooses to fight for such information, counsel should be prepared to pay when the other side adopts the same hardball tactics and the judge loses patience with both sides.

A thorough meet and confer process can help avoid these types of situations. Counsel should also be able to develop an understanding of how much the case is worth, which will allow counsel and the client to make strategic choices regarding whether to settle early on or proceed to trial. The meet and confer can also help with cost shifting issues.

By keeping reasonableness and proportionality top of mind during the meet and confer, litigants also ensure judges will not have to play the role of referee. Litigants should try to resolve as many disagreements as possible before raising issues before the judge. When judges decide e-discovery issues, neither party may be happy with the result.

Consider Court Precedent

Judges will not hesitate to call out attorneys who fail to discharge their obligation during the meet and confer. Some notable recent rulings around meet and confers include:

In re Facebook PPC Advertising Litigation.

In this case (2011 WL 1324516 (N.D. Cal. Apr. 6, 2011)), Facebook refused to participate in meet and confers to establish an ESI protocol, citing its “rigid, up-front requirements.”

The social media behemoth argued that “forcing parties to anticipate and address all potential issues on the form of electronic production would likely have the result of frustrating and slowing down the discovery process.”

The court rejected that argument and ordered Facebook into a meet and confer, ruling that “the clear thrust of the discovery-related rules, case law and commentary suggests that ‘communication among counsel is crucial to a successful electronic discovery process.' ”

Mikron Industries v. Hurd Windows & Doors Inc.

In Mikron Industries, 2008 U.S. Dist. LEXIS 35166 (W.D. Wash. Apr. 21, 2008), the court denied the defendants’ motion for a protective order regarding ESI, finding that defendants “failed to discharge their meet and confer obligation in good faith, as required by Fed. R. Civ. P. 26(c).”

Williams v. Taser International.

In Williams, 2007 WL 1630875 (N.D. Ga. June 4, 2007), the judge stepped in when the two sides could not agree on how to produce e-mails. The two sides did not have an initial meet and confer because the case was filed before the Federal Rules of Civil Procedure were revised.

Eventually, the judge ordered both sides back to the drawing board to meet, confer, and present a search and review protocol for approval. Unable to agree, the opposing sides submitted different proposals. The judge, clearly frustrated with having to act as referee, termed both side’s proposals “deficient” and imposed his own protocol.

Liebel-Flarsheim Co. v. Medrad Inc.

In Liebel-Flarsheim Co., 2006 WL 335846 (S.D. Ohio Feb. 14, 2006), the court issued a case management order that required the two sides to confer and cooperate on some tasks. When the sides failed to do so, the court issued another order, this time asking both sides why they should not be sanctioned for failing to comply with the original order.

While the court decided it could not hold either party in contempt, the judge said the exchange of e-mails and written correspondence did not fulfill the order’s meet and confer requirement. “The Court’s understanding of the phrase ‘meet and confer’ is a conference in which opposing parties actually talk to one another,” the judge noted.

Don’t Try to Reinvent the Wheel

Along with case law, the Sedona Conference can provide useful insights into meet and confer best practices. According to the Sedona Conference’s Cooperation Proclamation, “The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information (`ESI’). In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction and extensive, but unproductive discovery disputes…”

More than 100 current and retired judges have signed the Sedona Conference’s Cooperation Proclamation, according to the proclamation.

As part of the shift to a less contentious approach, the proclamation states that courts see the discovery rules as a mandate for counsel to act cooperatively. According to the proclamation, methods to accomplish this cooperation may include:

  1. Utilizing internal ESI discovery “point persons” to assist counsel in preparing requests and responses;
  2. Exchanging information on relevant data sources, including those not being searched, or scheduling early disclosures on the topic of Electronically Stored Information;
  3. Jointly developing automated search and retrieval methodologies to cull relevant information;
  4. Promoting early identification of form or forms of production;
  5. Developing case-long discovery budgets based on proportionality principles; and
  6. Considering court-appointed experts, volunteer mediators, or formal ADR programs to resolve discovery disputes.

Doing What Makes Sense

While both sides should proceed in a spirit of collaboration, that does not equate to capitulation. Cooperation is based on a healthy exchange of information and a dialogue between both parties.

Counsel should use the meet and confer process to control discovery, both from a cost and a case perspective. Logic dictates for defensibility that counsel control the key factors for discovery, such as preservation, production, and the like associated processes and scope.

E-discovery should not be used as a cudgel, but as a means to achieve the best outcome for the client. With the right approaches and information, both sides can use the meet and confer to achieve a just, speedy and inexpensive litigation.