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January 18, 2011 Articles

Knowing Your Way Around the Rule 26(f) Conference

With proper strategy and planning, the Rule 26(f) conference may be the most advantageous method of shaping the e-discovery process

By Alan Stevens

Rule 26(f) requires parties to "discuss any issues relating to preserving discoverable information, and to develop a proposed discovery plan that indicates the parties' views and proposals concerning any issues relating to disclosure or discovery of electronically stored information." With proper strategy and planning, the Rule 26(f) conference may be the most advantageous method of shaping the e-discovery process.

A litigant should use the Rule 26(f) conference to reduce the risk of spoliation claims through agreements on preservation, as well as reduce costs by limiting the scope of e-discovery through agreements as to the appropriate date ranges, custodians, systems, file types, and search terms. But achieving these results is almost entirely dependent on the attorney's preparation in three ways: know your client, know your opposition, and know your goals.

Know Your Client

To have meaningful Rule 26(f) conference, it is incumbent upon the attorney to acquire a detailed understanding of the client’s information technology infrastructure, systems implicated, potential custodians, steps undertaken to preserve potentially relevant records, and scope and format of production. This non-exhaustive list of facets to explore with your client naturally raises the question of who the appropriate persons are to attend the conference. In fact, in our technologically advanced era, lead outside counsel is not likely to be the most important participant. Instead, focus on incorporating those persons with the most relevant information, including the e-discovery team at the firm, IT staff at the firm and client, e-discovery consultants and vendors, and relevant sample custodians.

Also take time to educate your client about the costs associated with e-discovery, because the relative costs of e-discovery can spiral quickly into a range that few clients fathom when filing or receiving a complaint. Consider the following standard stages of electronic discovery and the approximate costs of each: (1) collection, $1,000 to $3,000 per custodian; (2) culling, $150 to $300 per gigabyte; (3) processing, $250 to $500 per gigabyte; (4) hosting, $20 to $50 per gigabyte; (5) associate review, $150 to $350 per hour (6); staff attorney review, $80 to $290 per hour; (7) contract attorney review, $25 to $60 per hour; (8) offshore review company, $15 to $20 per hour. Together these steps can reach a fully loaded cost to review of $9,000 to $40,000 per gigabyte of electronically stored information. Because many litigations require the collection of tens and even hundreds of gigabytes of information, this process alone may run fees into seven figures. Thus, it is not surprising that limitations obtained in the Rule 26(f) conference are of keen interest to attorneys and clients alike.

Know Your Opposition

You must determine whether your opposition is serious about engaging in meaningful dialogue so that exchange of information is mutual. If so, use the Rule 26(f) conference as a means to negotiate and document meaningful concessions. Where possible, seek to understand all available information regarding your opponent's electronically stored information. If your opposition seems unreasonable, use that against them. Stake out a reasonable position on key issues so the court will adopt your position in the Rule 16(b) order.

Know Your Goals

You will not get everything you ask for, so prioritize and remember the initial conference, if productive, will result in follow-up conferences. A helpful checklist of topics to cover should include: (1) overview of the parties’ e-discovery infrastructure; (2) pending preservation efforts; (3) scope of preservation and relevance; (4) information held by third parties; (5) database discovery; (6) timing of discovery; (7) production format; (8) privilege and waiver; and (9) cost shifting. Be prepared to give the opposition free discovery if you are going to be successful in obtaining concession on the scope of discovery. At the very least, make a clear record of what topics you agree and disagree upon so they can be raised at the Rule 16(b) conference with the court.

Copyright © 2011, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).