The Challenge of Rule 26(f)

The Challenge of Rule 26(f) Magistrate Judge Craig B. Shaffer July 15, 2011

Fed.R.Civ.P.26(f) • The nature and basis of claims and defenses • The possibilities for prompt settlement • Issues about preserving discoverable information • Developing a proposed discovery plan

A Discovery Plan • Subjects on which discovery may be needed, whether discovery should be conducted in phases or focused on particular issues • Issues about disclosure, discovery of ESI, including the forms in which it should be produced • Issues about claims of privilege • Changes to the limitations on discovery and additional limitations that should be imposed

Why Invest in the Rule 26(f) Process • Well-managed cases settle faster, proceed to trial more efficiently and cost-effectively • The court’s perspective • Avoid sanctions (Fed. R. Civ. P. 16(f) and Fed. R. Civ. P. 37(f)) • The Sedona Conference Cooperation Proclamation

Effective Preparation • Who should you be talking to? • Individuals knowledgeable about the client’s records management practices, retention policies • Key players directly involved in the subject matter of the litigation • Key players involved in business operations • Potential e-discovery vendors

Information You Need • Is current or historical ESI likely to be relevant to the issues in the litigation • Where is potentially relevant ESI maintained (company-wide or specific business units) • How is potentially relevant ESI maintained (network servers, hard drives, the cloud) • What are the client’s practices regarding backing up and storing ESI, retrieval capabilities

Tactical Considerations • A Rule 26(f) strategy should reflect • The facts of the case • Is this a “stand alone” case or one of several related matters • The business needs of your client • Your client’s resources • The volume of potentially relevant ESI • Your opponent’s level of experience

Logistical Considerations • Rule 26(f) permits the court “to order the parties or attorneys to attend the conference in person” • Who should attend the Rule 26(f) conference • adopt a team approach

Preservation • When did the preservation obligation attach, what steps were taken to preserve relevant ESI • Does the opposing party have a document retention policy • Is potentially relevant ESI at risk of being destroyed or altered • Is deleted information available in some other format

Form of Production • What is the opposing party’s system architecture • What systems or procedures govern the opposing party’s e-mail collection, storage, and retention • What about the hard drives contained on employee laptops and desktop computers

Scope of Production • What data is not reasonably accessible because of undue burden or expense • What data is maintained by third-parties • Word searches and search protocols • Metadata

Proportionality • Fed. R. Civ. P. 26(b)(2)(B) and 26(g) • Balance the complexities, burdens and costs of ESI preservation and production against the relevance and practical need for that information • Phasing or staging discovery

Privilege Issues • Preparation of privilege logs • “The Facciola-Redgrave Framework,” 4 The Federal Courts Law Review 19 (2009) • “A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court - in which event the disclosure is also not a waiver in any other Federal or State proceeding.” Fed. R. Evid. 502(d)

Case Law • Process Controls International, Inc. v. Emerson Process Management, 2011 WL 1791714 (E.D. Mo. 2011) (denying plaintiff’s request to enter an “Electronic Discovery Order” governing the discovery of ESI after concluding that the parties had not made a good-faith effort under Rule 26(f))to come up with their own agreement)

Case Law • In re Facebook PPC Advertising Litigation, 2011 WL 1324516 (N.D. Cal. 2011) (plaintiffs moved to compel, noting that Facebook had refused to agree to an ESI Protocol; given the parties’ pattern of discovery disputes, the court ordered the parties to confer and agree to an ESI Protocol that addresses the formats in which various forms of ESI will be produced; “the argument that an ESI Protocol cannot address every single issue that may arise is not an argument to have no ESI Protocol at all”)

Case Law • Covad Communications Co. v. Revonet Inc., 254 F.R.D. 147 (D.D.C. 2008) (noting that “courts have reached the limits of their patience with having to resolve electronic discovery controversies that are expensive, time consuming and so easily avoided by the lawyers’ conferring with each other on such a fundamental question as the format of their productions of electronically stored information”)

Resource Materials • Suggested Protocol for Discovery of Electronically Stored Information, District of Maryland • Guidelines for Discovery of Electronically Stored Information, District of Kansas • Seventh Circuit Electronic Discovery Pilot Program, Northern District of Illinois • TheSedonaConference.org

The Challenge of Rule 26(f)