The Rule 26 "Meet and Confer": Take It Seriously
The e-discovery amendments to the Federal Rules of Civil Procedure call for trial attorneys to be prepared to discuss any of their client’s Electronically Stored Information, ESI, that they expect to be a part of the case. Rules 26.a.1 requires that detailed information about the owners, often called custodians, of ESI be prepared forthe Rule 26 "Meet and Confer".
In addition to the list of custodians, the rules require a description, by “category and location” of all ESI in the possession, custody, or control of the custodians. This description is to be discussed at the Rule 26 conference.
Before these amendments, attorneys hoped to avoid e-discovery (and many still do!) and waited as long as they could to call me. I would get calls that something like this, “Discovery closes in two weeks and we think there are some electronic documents we need to get from the other side.” With the advent of the amendments, savvy attorneys know that they have to get started with e-discovery early. Judges are learning as well and don’t take it too well when counsel “blow off” the requirements of the Rule 26 “meet and confer.”
Mikron v Hurd, Mikron Industries Inc. v. Hurd Windows & Doors, Inc., 2008 WL 1805727 (W.D. Wash. Apr. 21, 2008), was a breach of contract case in which the defendants sought to shift the costs of e-discovery to the plaintiffs. Seattle District Court Judge Robert S. Lasnik ruled against the defendants on both procedural and substantive grounds. In stating the procedural grounds, Judge Lasnik wrote “the Court finds that defendants failed to discharge their meet and confer obligation in good faith, as required by Fed.R.Civ.P. 26(c). Accordingly, defendants' motion for protective order regarding ESI is DENIED for failure to comply with Rule 26(c).” [Emphasis added.]
What does this mean in real life? The e-discovery amendments are changing life for litigators, in more ways than one. The need to plan for e-discovery and prepare to have meaningful discussions of ESI with opposing counsel at the Rule 26 conference is real and here to stay.
My next few blogs will continue to discuss preparation for the Rule 26 conference. Questions about any of my topics are welcome as are reader comments.
