An efficient and cooperative discovery stage can have a huge impact on the smooth progression of a legal case. As the examination of increasingly vast quantities of electronic documents becomes commonplace, an effective and dependable approach to this important element of modern litigation is essential.
FRCP Rule 26(f) offers the opportunity to get a legal case off to the strongest of collaborative starts—if it is approached with the correct understanding and necessary preparation.
In this article, we’ll explore the intricacies of the FRCP Rule 26(f) Meet and Confer process (sometimes referred to as the FRCP Rule 26(f) conference.)
FRCP Rule 26(f) Explained
Rule 26(f) describes a conference of two parties (the plaintiff and defendant) to cooperate and set out a clear plan for the process of discovery.
In terms of responsibility for arrangement, both parties are jointly responsible—and this remains true as the case progresses. Communication regarding any issues relating to discovery, as more details and data come to light, should be ongoing.
While often referred to as a “meet and confer'', the conference does not necessarily need to be held in person. When it comes to the timing of the conference, except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties are obliged to confer as soon as practicable—at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).
According to the precise language of Rule 26(f)—when meeting to confer, both parties must:
- Consider the nature and basis of their claims and defenses
- Consider possibilities for promptly settling or resolving the case
- Make or arrange for the disclosures required by Rule 26(a)(1)
- Discuss any issues about preserving discoverable information
- Develop a proposed discovery plan
Meet & Confer: What’s at Stake?
A Rule 26(f) conference is intended to help lay a strong foundation for a productive discovery plan. Rather than being seen as a hoop to jump through in order for other procedures to commence, it can be viewed as a real opportunity to create a plan which both parties can benefit from. Discovery can be a long, complex, and experimental process for everyone involved, so by approaching a meet and confer conference with a collaborative—as opposed to combative attitude—there’s much to be gained.
Above all else, a meet and confer conference offers the opportunity to set out clear expectations around discovery needs and associated capabilities. Communication around limitations of scope and likely timeframes, coupled with the resolution of any issues relating to preservation methods or similar (ahead of this being officially ordered by the court) can save everyone involved time and money.
At the end of the conference, both parties should have considered the nature and basis of their claims and defenses, made or arranged for the disclosures required by Rule 26(a)(1), brought to light any issues regarding preserving discoverable information and, crucially, developed a discovery plan.
Tips for a Successful Meet & Confer Conference
With so much to be gained from FRCP Rule 26(f), it’s prudent to approach the obligation with the right attitude and careful preparation. When planning for a productive Meet and Confer conference, keep the following in mind.
Go In With a Gameplan
Ahead of your meet and confer, establish clear objectives and desired outcomes. Rather than treating the meeting as a tedious formality, recognize the potential it holds to streamline the ongoing discovery process and set the expectation for future collaboration.
Deep Case Knowledge
The revised Federal Rules of Civil Procedure states that you should prepare discovery requests with "reasonable particularity." In other words, know exactly what you need from the opposing party—and if you’re unwilling or unable to give them what they’re requesting, have a solid reason to shore up your objection.
Look for Common Ground
If approached with the right attitudes from both sides, FRCP Rule 26(f) has the potential to benefit everyone involved, so be ready to discuss capacities and limitations openly. By being clear about exactly what’s needed at this early stage, ideally in the presence of IT representatives, you can find mutuality.
Flag Issues Early On
Your FRCP Rule 26(f) meet and confer conference is not a time to be stalling for stalling’s sake. The idea is to come out with a well developed proposed discovery plan that will work for everyone involved. If genuine discovery disputes arise, then these can of course be presented to the judge, but the meet and confer should serve to root out and resolve lesser matters.
Be Clear on Your Reasoning
If you do intend to push back on specific discovery requests, be sure that you have a well-prepared objection that can be clearly communicated. Again, this comes down to thorough preparation and deep case knowledge. Be absolute in your understanding of your capabilities when it comes to discovery, and communicate these consistently.
Ensuring Proper Preservation
Many of the outcomes of a FRCP Rule 26(f) meet and confer hang upon the data preservation and record keeping on both sides of the case. Going into your conference, it’s important to have this front and centre of mind, as establishing clear parameters here will be vital to understanding the limitations that might be placed upon a discovery plan.
For many, legal hold will be the most pressing matter. In addition to ensuring that a legal hold has been established, you’ll also need to know its current status, the way in which it was communicated and who it has been distributed to. It’s also important to ascertain exactly which data sources have been specified with regard to the legal hold.
Document retention policies should also be up for discussion. The status of document retention schedules should be urgently reviewed, as you’ll need to know how (and indeed, if) data has been protected from deletion.
Ideally, both parties should leave the FRCP Rule 26(f) meet and confer feeling confident that an adequate preservation strategy has been put in place by the opposing party. If any issues do exist with respect to this, they can be recognized and dealt with accordingly.
Establishing the Scope of eDiscovery
In addition to establishing the state of data preservation on both sides of the case in question, a FRCP Rule 26(f) meet and confer will help to establish the scope of the ongoing eDiscovery process. By asking questions about the range of employees with relevant data, the sources that this data may be contained within and the general time frame of relevancy for data associated with the case, a clear picture of the magnitude of the discovery process should be revealed.
This is a good time to talk about priorities, especially with regard to the sources of data that both parties will require access to. If any issues might arise as a result of this (for example, if certain data is inaccessible or from non-traditional sources such as text message) then these can be flagged. The location of stored data should be discussed (e.g. offline, cloud or even with third parties.)
It’s also a stage at which lines in the sand can be drawn with regard to burden and expense. Both parties can express what they consider reasonable, and where requests cross the line to become disproportionate.
Reducing the eDiscovery Burden: Exploring Early Case Assessment
Finally—and perhaps most importantly—the FRCP Rule 26(f) Meet and Confer represents a mutually beneficial opportunity to expedite and reduce the cost of the discovery process. Exploring early case assessment can be very beneficial if tools and techniques are accessible. Some factors that might help direct reducing the burden of discovery include:
- The ability to use technology assisted review (TAR) or keyword technology to refine your search and the amount of data produced
- Agreement from both parties to phase discovery activities
- Steps that can be taken to assure the quality of data produced
- The specific requirements of the data produced (i.e. which metafields, what form of presentation file)
- Flagging any concerns regarding the cost of production, and objections which might arise as a result of this
Set Up for Success With FRCP Rule 26(f)
Meet and confer conferences can be productive, beneficial and mutually advantageous – but preparation, assisted by the right tools and technology is key. Pagefreezer enables legal professionals to efficiently investigate the relevance of a wide range of data sources in relation to a case.
Advanced search and filtering capacities help to quickly close in on pertinent data, from any number of websites, collaboration tools, and social media accounts. Data can be exported for use in eDiscovery in a wider range of formats (PDF, CSV, and WARC) and all records include associated metadata, a time-stamp and a SHA-256 digital signature – ensuring no issues with validity or authenticity.
Learn more about another key stage of the discovery process – understanding a request for production of documents.