chevron-down Created with Sketch Beta.

ARTICLE

E-Discovery Meet and Confer Preparation: Practical Considerations for Class Actions

Bobby Malhotra

Summary

  • The goal of the meet and confer is to provide a forum for productive dialogue about discovery-related issues. 
  • With the right class action team, the right information and dialogue with the client, and the right mind-set, lawyers can have successful meet-and-confer conferences aimed at resolving disagreements before there is any need for judicial intervention.
E-Discovery Meet and Confer Preparation: Practical Considerations for Class Actions
Maskot via Getty Images

Benjamin Franklin famously proclaimed, “An ounce of prevention is worth a pound of cure,” which stood for the proposition that prevention of an undesirable result is preferable to dealing with its potential consequences. The same holds true when dealing with issues involving electronically stored information (ESI) in class action discovery—avoiding discovery disputes and motion practice related to e-discovery is far better than fighting unnecessary and avoidable battles in court.

Federal Rule of Civil Procedure 26(f) requires parties in a lawsuit to meet and “confer as soon as practicable” regarding ESI issues and to “develop a proposed discovery plan.” Class action attorneys can use the meet-and-confer process to discuss issues related to document preservation, scope and timing of productions (including whether to bifurcate discovery related to class certification and discovery related to the merits of the case), data sources to be produced, production form and timing, and privilege. It is one of the most important e-discovery rules because it provides litigants an early opportunity to discuss and agree on discovery parameters and to work through disputes in an effort to minimize the need for court intervention. To that end, taking the time to create a detailed plan in preparation for a 26(f) conference is an important step that lawyers can take in an effort to save their clients time and money.  

Regrettably, many class action litigators still view Rule 26(f) requirements as, at best, a mere necessary evil and, at worst, a rule that is meant to be ignored. That type of an approach can result in major discovery battles that could have been avoided, costly motion practice, and even sanctions. These risks can be mitigated (and in some cases avoided) with a well-thought-through and thorough meet-and-confer strategy. Set forth below are three practical considerations for class action litigators as they prepare for and think about the meet-and-confer process.

1. Assemble the “Right” Class Action Team  

Class actions are often among the most complex, time-consuming, and demanding matters faced by litigators. And that almost certainly holds true when it comes to e-discovery. Handling e-discovery issues in litigation is challenging and full of land mines even when only two parties are involved. Now add potentially tens or even thousands of plaintiffs with multiple defendants potentially into the mix, and you can see how developing a discovery action plan becomes challenging. For that reason, it’s nearly impossible to do it alone. Even large firms and Fortune 50 corporations will bring on e-discovery counsel, vendors, consultants, and experts to guide them through the process.  

Getting the “right” team assembled is critical to successfully navigating the meet-and-confer process. Will you rely heavily on e-discovery counsel or senior associates? Will paralegals, litigation support, and project managers take the laboring oar on discovery work? Should your e-discovery or forensics vendor be a part of the team and join meet and confers or will you lean on in-house law firm resources to handle technical issues? Which attorney will lead the charge in terms of negotiating and participating in the meet and confers?  

Although there is no “right” or “wrong” answer to these questions, it is worth noting that one of the most important qualities of a successful class action team is a range of complementary skills. Complementary skills are skills that each individual has that are different from the skills of other members of the team. For example, when choosing your e-discovery counsel, you may want an attorney who is experienced in class action litigation, who understands data and information systems, and who is an expert in the myriad of e-discovery rules. When selecting an attorney who might lead your meet-and-confer negotiations, you may want a well-seasoned negotiator with great social and personal skills. And for your litigation support team member, you may want someone who is an expert at organizing and searching electronic evidence in litigation support databases. One of the added benefits of having a team with complementary skills is that you will also get diverse viewpoints and opinions, which can help the team spot potential legal and technical issues early on during the meet-and-confer process.  

2. Talk to Your Client

Regardless of whether your client is a proposed class representative or Fortune 50 corporation, they know their systems best. Lawyers, on the other hand, need to gain a sufficient understanding about their client’s ESI and data sources in advance of going into the Rule 26(f) conference. For that reason, and as elementary as this sounds, it is important for lawyers to have “live” conversations with their clients as they navigate through the meet-and-confer process. Handling these communications strictly via email is not workable for most cases.  

Lawyers should aim to speak with their clients well before meeting with opposing counsel and ideally keep this dialogue going throughout the process. Indeed, a series of conversations with different client representatives is what it usually takes to gain a solid understanding of important e-discovery considerations such as who are the key and important custodians and departments, what is the relevant time period, what data sources are implicated, what are the data volumes, where do the data physically reside (to assess any potential cross-border data privacy issues), what are the retention periods, and what are the cost and timing associated with collecting, processing, and reviewing the underlying data.  

As a starting point, lawyers will usually want to speak to client representatives in the information technology department to understand the technologies, systems, data storage locations, and retention practices in play. In addition, lawyers may want to speak with key custodians who actually created and used potentially relevant ESI, via an e-discovery-focused witness interview. During these interviews, lawyers can get a better handle on how and where custodians are storing and maintaining relevant ESI and how they are communicating about relevant issues in the case—all aimed at preparing for a productive meet-and-confer conference.  

Also, having an early and ongoing dialogue with the client has the added bonus of allowing lawyers to educate themselves about the client’s pain points (e.g., perhaps certain data sources are exceptionally resource intensive or expensive to collect), culture, discovery experience and sophistication, and discovery policies.   

3. Engage with Your Adversary and Propose Offers and Compromises

Although meticulous preparation is key to a productive meet-and-confer conference, so too is approaching the conference with the right mind-set. Lawyers should look at meet and confers as an opportunity for cooperation and dialogue, rather than conflict.  

This does not mean that lawyers should agree to everything their opposing counsel proposes; rather, they should be prepared to listen to the other side and make suggestions and counterproposals instead of just saying “no.” They should be creative and propose strategies that streamline and expedite discovery, while at the same time providing their adversary with the information they need to defend or prosecute their case. For example, during the class discovery portion of a bifurcated discovery class action, it may be quicker and cheaper (and advantageous to both sides) for a litigant to produce data and reports from an HR-structured database rather than trying to collect, process, and review ESI for all individuals in a putative class.  

Finally, it is important that lawyers on both sides keep reasonableness and proportionality principles in mind. For example, if one side proposes search terms that go beyond the central issues in the case or do not relate to class members and damages, it may be that those proposed terms are too broad and not proportional to the needs of the case.

Conclusion

The goal of the meet and confer is to provide a forum for productive dialogue about discovery-related issues. With the right class action team, the right information and dialogue with the client, and the right mind-set, lawyers can have successful meet-and-confer conferences aimed at resolving disagreements before there is any need for judicial intervention.

    Authors