Shortly after litigation commences, the parties must confer and discuss, among other things, any issues about disclosure or discovery of ESI. FRCP 26(f). For many reasons, including the filing of motions for summary judgment that stay discovery, the meet and confer process may have the tendency to be delayed, sometimes for months after a litigation is filed. This delay can derail the entire process as it is envisioned by the courts and the drafters of the FRCP or similar state rules. It is advisable to both sides that, regardless of a stay in discovery, the parties sit down and discuss the handling of ESI early on. It is also advisable for the company and its in-house counsel to work with outside counsel to keep this part of the process on the table. It is tempting as it is to also park this step due to its complexity and cost, because the duty to preserve arises automatically upon anticipation of discovery and because of the volume of data likely at issue in litigation, but postponing talks with the other side can be detrimental to the case and can hinder the ability of ESI counsel to implement the right discovery plan.
In preparation for the meet and confer, data must be identified, relevant data not immediately at issue needs to be preserved, and relevant data immediately at issue needs to be collected and processed. Only then can this data be reviewed, used by lead counsel for preparation of the case in chief and prepared for production.
To address issues in a meet and confer, lawyers must come armed with the right tools. It is advisable, and should be required, that IT personnel from each side of the table be present during the first meeting. It is also advisable to schedule several of these meetings in advance because parties may need more than a few hours to digest the information exchanged and come up with a discovery plan. This requires an understanding of data sources and storage devices and knowledge of what is reasonably available or not. The meet and confer should address burden and costs. Once the parties have identified the data, discussed preservation and identified which custodians will be searched, the parties need to work on the parameters for the first round of collection by formulating searches. Search terms, framed within date restrictions and unique custodians, are still the most frequently used tool to collect data at this stage of the process, but they are proven to be flawed and can be particularly difficult to formulate at the beginning of a case. The meet and confer should leave the door open for each side to come back to the table to request additional searches and custodians. Making it an iterative process is essential. Only by looking at the effectiveness of the recall and the precision from the first round of searches and learning from the documents gathered during the first pass can counsel begin to form an understanding of how to approach the other side’s data.