The 2006 amendments to Rule 26(f) of the Federal Rules of Civil Procedure (FRCP) added several items related to electronic discovery to counsel’s agenda for their Rule 26(f) “meet and confer” conference. The amendments were designed to get the eDiscovery issues discussed and addressed between the parties earlier in the process to reduce the number of eDiscovery disputes that courts must address. But that doesn’t appear to be happening. Here’s an article from Insight Optix that discusses what to do to put yourself in the best position to minimize those disputes.
The article The Importance of the First 100 Days – How to Avoid the Most Common Discovery Dispute (written by Janice Yates) references the number one discovery dispute last year (by far), which wasn’t proportionality disputes (that was second at 889, almost double the number in 2019) and it wasn’t even sanctions (which was third). It was failure to produce, which had 1,382 disputes! Parties are not utilizing the early days of the case to develop enough of an understanding of their custodians and data sources to proceed with a cooperative discussion with opposing counsel. Instead, discovery devolves into fishing expeditions and boilerplate objections, which leads to the filing of numerous motions to compel.
As a producing party in litigation, taking full advantage of those early days in the case before the meet and confer means implementing a defensible, transparent methodology to evaluate the relevancy of your custodians and quantify the effort and burden associated with discovery. Leveraging technology and methodology means that you don’t even need anywhere near the full 100 days. Janice’s article discusses how Evidence Optix® (EO) is a technology-enabled workflow that promotes that defensible, transparent methodology and she references how the proportionality assessment analysis facilitated by EO reduced the total number of custodians for which all data needed to be collected from 227 to only 29 – in one week! EO is also the basis for the Discovery Proportionality Model initiative currently in progress at The George Washington (GW) University Law School Complex Litigation Center (which I previously covered most recently here).
Janice’s article is here with more information and best practices on how to reduce discovery disputes and costs. Let’s hope we see more legal teams take the methodical approach that’s needed to be prepared for the meet and confer – if they do that, we might actually start to see the number of disputes go down. Wouldn’t that be nice?
So, what do you think? How do you assess the potential relevance of your custodians before the meet and confer? Please share any comments you might have or if you’d like to know more about a particular topic.
Disclosure: Insight Optix is an Educational Partner and sponsor of eDiscovery Today
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.