Toolbox Talk Series Recap – Best Practices for Productive Rule 26(f) Conferences on Discovery Plans

In the April 4, 2024 edition of Division 1’s Toolbox Talk Series, Julian Ackert and Steve Swart presented on how to prepare for and structure Rule 26(f) conferences to be more effective.  While Swart and Ackert focused on the requirements of Federal Rule of Civil Procedure 26(f) regarding the requisite conference of the parties prior to a scheduling conference or scheduling order, it is worth noting that many states have substantially similar requirements.  

Rule 26(f) requires the parties to (i) discuss the nature and basis of their claims or defense; (ii) make or arrange for mandatory disclosures pursuant to Rule 26(a)(1); (iii) discuss issues about preserving discoverable information (including Electronically Stored Information – “ESI”); and (iv) develop a proposed discovery plan.  Swart and Ackert’s presentation focused on the preservation of ESI and the proposed discovery plan.

In preparing for the conference, Swart and Ackert recommend reviewing resources on best practices for ESI production and sample ESI Protocols, including:

·  The Sedona Conference, The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1, 72 (2018)

·   The Sedona Conference, including Working Group 1

· ABA Forum on Construction Law: Discovery Deskbook for Construction Disputes (John M. Cook et al. eds., 2d ed. 2015)

·   Federal Court website with sample/default ESI Protocols, e.g.:

o   Northern District of California

o   Northern District of Illinois

o   District of Maryland

o   Crowell & Moring, Federal Court and Government Agency e-Discovery Rules and Guidelines

It can be helpful to have ESI vendors/consultants and client representatives participate in the Rule 26(f) conference to assure that the discovery plan is realistic, technically sound, and sufficiently comprehensive.

Although ESI productions are often significantly larger in scope than traditional productions, Swart discussed how counsel have the same essential duties in either scenario of identification, preservation, collection, review, and production. See DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839, 923, 925 (N.D. Ill. 2021) (imposing a $2.5 million sanction for failure to identify and search web-based emails).

Regarding identification, counsel should work with all relevant individuals (IT, HR, accounting, project management, and ESI consultants) to gain an understanding of the proper custodians and the hardware, software, and third-party services used by your client.  Ackert and Swart stressed how the identification of custodians and documents will be an iterative process, often requiring multiple meetings and draft discovery plans to take advantage of search terms and the client’s organization of documents.  During interviews with identified custodians, the best practice is to have someone from IT present to integrate knowledge of the relevant documents and where those documents actually reside.

For preservation, Ackert distinguished between options to preserve documents in place or to preserve by collecting them.  Some systems, such as Office 365, have built-in options to preserve select documents, which can reduce costs.  Others do not allow for such preservation in place and instead will require preservation by collection.  Regardless of the selected option, special attention should be paid to “chat messages” – such as google, slack, text messages, and similar messaging interfaces.  These are often the most difficult to preserve and to collect, but can be a source of valuable communications.

The better prepared parties can be for the Rule 26(f) conference, the more thorough the discovery plan and the more valuable the discussion with the opposing part and the Court.  Swart and Ackerman emphasized the importance of considering each of the above elements of e-discovery to allow for a robust conference covering your client’s position on, among other things, the size of data and costs of production, proposed search terms, proposed production formats, metadata, and timelines/phases of discovery.  Those interested in further information on these topics should read the references listed above.

Thank you to Swart and Ackerman for highlighting considerations for a Rule 26(f) conference and for sharing their experiences of what works best in practice.

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Author Douglas J. Mackin is a construction attorney with Cozen O’Connor in Boston, Massachusetts. Douglas counsels owners, developers, contractors, and subcontractors in all phases of a construction project, from contract negotiation through to completion, including disputes, litigation and arbitration. Douglas can be contacted at dmackin@cozen.com.