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
· Federal Court website with sample/default ESI
Protocols, e.g.:
o Northern
District of California
o Northern
District of Illinois
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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