Scott E. Randolph
A. Dean Bennett
*Reprinted with permission from The Advocate, the official publication of the Idaho State Bar. The original version of this article appeared in the February 2011 issue, Volume 54, No. 2. More information about The Advocate is available here.
Arguably the biggest headache for litigators is the cumbersome and complex discovery process, particularly given that almost every lawsuit involves electronically stored information (“ESI”). To successfully manage discovery in the world of ESI, attorneys must effectively utilize the discovery conference required by Rule 26(f) of the Federal Rules of Civil Procedure. Under Rule 26(f), unless the court orders otherwise, the parties must meet “as soon as practicable” to discuss many issues relating to the discovery and pretrial process.[i] The Rule specifically requires the parties to address the proper timing and scope of discovery in light of the type and complexity of the dispute, to address document preservation issues, and to attempt to reach an agreement on methods for harvesting and producing ESI.
Unfortunately, many attorneys fail to effectively utilize the Rule 26(f) conference and some fail to adhere to the Rule at all. Often, this is because counsel do not know the questions to ask or the issues that need to be addressed at a Rule 26(f) conference. This article provides a checklist of topics to cover during a Rule 26(f) conference, defines terms commonly used in the world of ESI, and makes practical suggestions to simplify the process of producing ESI.
Preparing for a Rule 26(f) Conference
Many attorneys fail to adequately prepare for a Rule 26(f) conference. Failure to adequately prepare undermines any chance for having a successful conference. Thus, it is essential for counsel to spend time before the Rule 26(f) conference working through the issues that will be covered at the conference. Attorneys should consider working with their firm’s information technology (“IT”) professional and often a paralegal to understand what software product their firm or vendors use to review and produce ESI. Next, counsel should work with his client (and his client’s IT personnel, if appropriate) to determine the potential sources of ESI. For example, if the client is a corporate entity, counsel needs to understand whether there is a server that houses all data for the client that may be relevant to the litigation or whether that information also exists on individual computers or other sources. And if the client is an individual, counsel needs to understand what technology his client is using and where she stores electronic information. Most often, data is spread over many sources, including servers, local computers, personal devices such as BlackBerry’s or IPads, and back-up devices. Counsel should actively question his clients about all potential sources of data to ensure that relevant ESI has been preserved for the litigation. This process will allow counsel to learn how many people may have ESI that is relevant to the lawsuit as well as estimate the cost of gathering the data. This information will prove invaluable during the Rule 26(f) conference because it will allow counsel to speak intelligently about the sources of data and the potential costs of production.
Rule 26(f) Conference Checklist
At the conference, counsel should work to address each of the following issues regarding production of ESI. Coverage of these issues will go a long way to a more organized, efficient, and cost-effective discovery process.[ii] Ignoring these issues will likely result in long-term inefficiencies, because counsel and client often end up doubling back on previous discovery efforts to complete tasks that could have been accomplished with an effective Rule 26(f) conference.
A. Define the Scope of ESI Relevant to the Lawsuit.
Before counsel can manage ESI, the parties must have a candid conversation about the relevant scope of ESI. Counsel should discuss and agree on the basic parameters of ESI, including who are the key persons or “custodians” of the relevant information and the location of ESI maintained by the custodian within the organization.[iii] In most cases, the servers, computers, PDA’s, and other storage devices used by the custodians represent the scope of ESI for a particular case. If counsel take this process seriously during the Rule 26(f) conference, the parties can save significant resources as the litigation develops. Early resolution of the scope of potential ESI allows the parties to “eliminate duplicative discovery and help ensure that the searches remain narrowly focused on the core issues present in this case.”[iv]
B. Identify each Parties’ Document Retention Policies and Ensure That They Are Enforced.
It is essential for counsel to identify their clients’ document and information retention policies, to follow up with their clients to make sure that those policies are being enforced, and to disclose that information to the other side. It is also important to request the same information from opposing counsel to ensure that the opposing party has a document retention policy in place. Moreover, at the Rule 26(f) conference it is equally important to inquire of opposing counsel how he or she is going to follow up with his or her client to confirm that preservation policies are satisfied. This is essential because ESI can be easily destroyed. Once destroyed, it can be extremely expensive to recover. And in some cases, data may be permanently deleted and lost forever.
C. Send Compliant Litigation Hold Letters and Confirm That Opposing Counsel has Done the Same.
Destruction of ESI, inadvertent or intentional, can have serious consequences for client and counsel, including sanctions and spoliation instructions at trial.[v] If a party destroys documents relevant to the lawsuit, even inadvertently, courts can sanction a party with a spoliation instruction. A spoliation instruction allows the jury to infer that the evidence lost or destroyed would have been adverse to the producing party.[vi] Parties also could face monetary or other sanctions, including the striking of pleadings.[vii]
The Rule 26(f) conference presents the opportunity to communicate to opposing counsel the steps that have been taken to preserve existing information that is potentially relevant to the lawsuit.[viii] Counsel should also ask candid questions of opposing counsel about the same issue including whether they have a litigation hold letter in place, to whom it was addressed, and what safeguards are in place to ensure compliance with the requirements of the letter. There is a significant amount of literature available regarding the proper scope of a litigation hold, who the litigation hold should go to, instructions to be contained in a litigation hold, and ways to monitor compliance with the litigation hold.[ix] Having a meaningful conversation about these issues during the Rule 26(f) conference should eliminate questions later in the litigation about whether a party reasonably should have preserved particular evidence after litigation was filed or anticipated to be filed.
D. Identify Preferred Search Methodologies.
After ESI is collected, there can be hundreds of gigabytes or even terabytes of information that is potentially related to the lawsuit and thus is subject to discovery.[x] The only way to find information that is relevant to the issues raised by the pleadings is to cull or narrow the information down to a workable data set for review. The Rule 26(f) conference provides an excellent opportunity for counsel to discuss and agree on initial keywords and date ranges that can be used to identity relevant material and reduce the collected information. The parties should also consider whether more sophisticated search methods might be appropriate. For example, the parties can agree to the use of Boolean searches, which can be significantly more effective than simple keywords in culling information down to a workable set.[xi] Similar to a search on Westlaw or Lexis, the parties can search for two words in the same sentence, words in the same paragraph, or multiple words in the same document.
No matter the preferred method, counsel should reach a firm agreement on this subject. This avoids the situation where one side later objects that his opponent failed to deploy reasonable methods to locate all responsive documents within the larger dataset of ESI. If counsel cannot agree on search methodologies, they should raise the issues with the court during the Rule 16 scheduling conference. This minimizes any potential risk that a party may later be forced to expand the scope of the search terms and expend hours and valuable resources on a process that could have been avoided by resolving the issue at the outset of the litigation.
E. Identify the Form of Production.
By failing to proactively request production of ESI in a specific form during the Rule 26(f) conference, a party diminishes its chances of later obtaining that information in its preferred format.[xii] The Federal Rules allow the requesting party to identify how the other side shall produce ESI.[xiii] It is counsel’s obligation to identify upfront that ESI should be produced in a particular format, including that the information be produced in a specific file type that may be loaded into counsel’s database software.[xiv] It is also beneficial to ask opposing counsel about her preferred format for production. This will lessen the chance of a discovery battle or the prospects of being forced to produce ESI in more than one format—a costly and unnecessary proposition.
Producing documents that are not user friendly to opposing counsel is not looked upon favorably by the rules committee or by the courts. The analogy to “Sure, come over to my office and look through the conference room full of unorganized files” has been rejected.[xv] Playing roulette with the other side over these issues is not in the best interest of either party.
F. Acknowledge the Need for and Agree to Rolling Productions.
It is not realistic to think that a party can collect information from 10 to 20 custodians, review it for responsiveness, review it for privilege, and produce it in a useable format in the short period allowed by the rules governing initial disclosures and discovery in general.[xvi] It is also not realistic to think that a party receiving documents will have the resources to review all of the ESI immediately. A workable solution to these practical difficulties is to agree to rolling productions of ESI so that the producing party can harvest, cull, review, and produce responsive documents concurrently with the other side’s review. Rolling productions should be discussed at the Rule 26(f) conference because it can help to efficiently move litigation to resolution in a more timely manner. Again, if opposing counsel will not agree to rolling productions, there is no good reason not to raise this with the court during the Rule 16 conference. If good cause exists, counsel should seek to have the rolling production schedule included in the discovery order entered by the court.
G. Discuss Whether It Makes Sense to Image Dynamic Devices.
Dynamic devices are electronic devices that remain in service during the pendency of litigation. It is costly to take computers, PDA’s, or other storage devices out of service for the duration of a lawsuit. Clients routinely need to use these devices while the litigation is underway. The Federal Rules contemplate the continued use of these dynamic devices.[xvii] To enjoy protection under the Rules, counsel need to take reasonable steps to maintain relevant ESI. Beyond litigation hold instructions to a client, counsel can and should be proactive to ensure that relevant information from these devices is preserved in a format that can later be produced if necessary. A preferred way to resolve this dispute is to “image” the dynamic devices that likely contain relevant information. Imaging is a relatively low-cost process that allows the data to be preserved while the original device can return to service.
The Rule 26(f) conference is a proper forum to discuss whether imaging of dynamic devices is appropriate. If counsel are unable to agree, counsel can raise the issue with the court at a scheduling conference and the court can decide whether it is necessary to image certain devices and, if so, which party should bear the costs. Whether resolved by agreement of counsel or by the court, imaging dynamic devices provides counsel with comfort that they have properly preserved responsive information for later use in discovery.
H. Stipulate to a Rule 502 Non-Waiver and File it With the Court.
A relatively new rule that is beginning to gain visibility among litigators is Federal Rule of Evidence 502. Under Rule 502, “[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 waived in any other Federal or State proceeding.”[xviii] The Rule became effective September 19, 2008.
An order entered under Rule 502 has the effect of protecting parties against inadvertent disclosure of privileged or work-product material and the subject matter waiver that can accompany disclosure of privileged or otherwise protected information. Without such protection, inadvertent disclosure of a single privileged or work-product protected document can potentially waive a privilege otherwise provided for by the rules.[xix] Moreover, Rule 502 “allows parties in an action in which an order is entered to limit their costs of pre-production privilege review.”[xx] “[E]lectronic discovery may encompass ‘millions of documents’ and to insist upon ‘record-by record pre-production privilege review, on pain of subject matter waiver, would impose upon parties costs of production that bear no proportionality to what is at stake in the litigation.’”[xxi]
Rule 502 provides counsel and client with protection in all cases, not just in cases involving millions of documents. But the protection only extends to the parties who are proactive and actually enter into a Rule 502 stipulation that is subsequently reduced to an order. Otherwise, the stipulation is binding only on the parties to the agreement and may not have controlling effect in other forums.[xxii] Counsel should strongly consider raising Rule 502 in their next discovery conference and incorporating it in their next discovery plan.
I. Stipulate to a Protective Order.
Discovery regularly requires the disclosure of documents that contain either confidential personal information or confidential business information such as proprietary or trade secret documents. Almost every case involves documents that clients do not want in the general public domain and that are protectable from disclosure to third parties through stipulation. Rule 26(f) requires the parties to address this issue in the discovery conference.[xxiii] Counsel should discuss the need for a protective order and use the Rule 26(f) conference forum to reach an agreement that can control the conduct of the parties throughout the remainder of the litigation. Again, counsel who are unable to reach an agreement should consider raising the dispute with the court during the Rule 16 scheduling conference so that the court can order relief as appropriate.
J. Consider Sharing a Vendor and Cost Sharing.
Litigation is adversarial by nature and, as a matter of fact, parties to a lawsuit have opposing or competing interests. That does not mean, however, that the parties should not address sharing management, and possibly even the cost, of producing ESI in the course of litigation. Sharing a vendor, or agreeing upfront to allocation of costs, is beneficial to both sides. When the parties share costs, both sides are more likely to make only reasonable ESI discovery requests, taking away some of the gamesmanship all too often used in the discovery process. Moreover, sharing the costs to employ a single vendor allows for uniform productions of documents and may provide for a central repository of ESI for all parties which saves time, resources, and makes for a more organized process from start to finish.
Effective use of the Rule 26(f) discovery conference requires preparation by counsel. This preparation pays dividends in the form of efficiencies throughout the discovery process. If counsel properly utilizes the Rule 26(f) conference, he will be in a position to negotiate with opposing counsel over the scope of discovery and whether any modifications are required to the presumptive limitations provided by the Federal Rules of Civil Procedure. This preparation also minimizes the risk of inadvertent destruction of discoverable information. Additionally, counsel can protect himself and his clients against waiver of the attorney-client privilege by implementing an effective non-waiver agreement under Rule 502 of the Federal Rules of Evidence. Finally, counsel can protect against the disclosure of sensitive information by negotiating a protective order. The alternative is not attractive. Even in the best case, unprepared counsel can expect to experience an inefficient and duplicative discovery process that could have been avoided with preparation prior to the Rule 26(f) conference. And without preparation, counsel lose out on the chance to implement desirable protections that the rules allow.
Rule 26(f) ESI Check List
Define the Scope of ESI
Document Retention Policies
Litigation Hold Letters
Identify Search Methodologies
Format of Production
Image Dynamic Devices
Rule 502 Agreement
[i]Fed. R. Civ. P. 26(f)(1).
[ii] See Sedona Conference Working Group Series, The Sedona Principles: Second Edition – Best Practices Recommendations & Principles for Addressing Electronic Document Production (2007), http:// www.thesedonaconference.org/content/misc Files/TSC_ PRINCP_ 2nd _ ed_ 607.pdf (last visited December 10, 2010).
[iii] Romero v. Allstate Ins. Co., 2010 WL 4138693, *13 (E.D. Pa. Oct. 21, 2010) (“‘Cooperation … requires … that counsel adequately prepare prior to conferring with opposing counsel to identify custodians and likely sources of relevant ESI, and the steps and costs required to access that information. It requires disclosure and dialogue on the parameters of preservation.’”) (quoting Trusz v. UBS Realty Investors LLC, ___ F.R.D. ___, 2010 WL 3583064, at *4-5 (D. Conn. Sep.7, 2010) (quoting “The Case for Cooperation,” 10 Sedona Conf. J. 339, 344-45 (2009)).
[v] See Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 649 (9th Cir. 2009) (“Spoliation of evidence is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence, in pending or future litigation.”).
[vi] Millenkamp v. Davisco Foods Intern., Inc., 562 F.3d 971, 981 (9th Cir. 2009) (noting that the adverse inference instruction is based on “the common sense observation that a party who has notice that a document is relevant to litigation and who proceeds to destroy the document is more likely to have been threatened by the document” and “allowing the trier of fact to draw an adverse inference presumably deters parties from destroying relevant evidence”).
[vii] In re Prudential Insurance Co. Sales Practices Litigation, 169 F.R.D. 598, 617 (D.N.J. 1997) (imposing a sanction of $1,000,000 plus requestor’s attorneys’ fees for destruction of data that should have been preserved); see also Stewart v. Deutsche Bank Nat. Trust. Co., No. 3:08-cv-475, 2010 WL 1882068, *2 (E.D. Tenn. May 11, 2010) (considering and ultimately rejecting defendant’s request for dismissal of the plaintiff’s complaint due to plaintiff’s failure to appear for Rule 26(f) conference).
[viii] The Rule 37 Safe Harbor Provision requires good faith. By conferring on these issues, counsel can minimize the risk of sanctions for inadvertent destruction of documents. See Fed. R. Civ. P. 37(e).
[ix] See, e.g., Suggested Protocol for Discovery of Electronically Stored Information (“ESI”), United States District Court for the District of Maryland, available at http://www.mdd.uscourts.gov/news/news/esiprotocol.pdf, at 7-11 (last visited December 10, 2010).
[x] A gigabyte is one billion bytes while a terabyte is one trillion bytes.
[xi] Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 261 n.9 (D. Md. 2008) (“Boolean proximity operators are derived from logical principles, named for mathematician George Boole, and focus on the relationships of a ‘set’ of objects or ideas. Thus, combining a keyword with Boolean operators such as “OR,” “AND,” “NOT,” and using parentheses, proximity limitation instructions, phrase searching instructions, or truncation and stemming instructions to require a logical order to the execution of the search can enhance the accuracy and reliability of the search.”) (citing The Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 200, 202, 217-18 (2007)).
[xii] Phillip M. Adams & Assocs., L.L.C. v. Fujitsu Ltd., No. 1:05-CV-64, 2010 WL 1901776, at *3 (D. Utah May 10, 2010) (citing Fed. R. Civ. P. 34(b)(1)(C) and holding that where a party asks for ESI in a particular format, the other side is required to produce it in that format); see also Brinkerhoff v. Town of Paradise, No. CIV. S-10-0023 MCE GGH, 2010 WL 4806966, *10-11 (E.D. Cal. Nov. 18, 2010) (slip opinion) (denying demand for production of imaged computers where party failed to request production of ESI during Rule 26(f) conference).
[xiii] See Fed. R. Civ. P. 34(b)(1)(C).
[xiv] Phillip M. Adams & Assocs., L.L.C., 2010 WL 1901776, at *3.
[xv] SeeFed. R. Civ. P. 34(b) and comments to the 2006 Amendment (noting that a party must produce ESI as it is kept in the usual course of business).
[xvi] See Fed. R. Civ. P. 26(a)(1)(C), 34(b)(s)(A).
[xvii] See Fed. R. Civ. P. 37(e) (creating a safe harbor for ESI “lost as a result of the routine, good faith operation of an electronic information system”).
[xix] Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228, 236 (D.Md. 2005) (“Any disclosure inconsistent with maintaining the confidential nature of the attorney-client relationship waives the attorney-client privilege.”(quoting In re Grand Jury Proceedings, 727 F.2d 1352, 1357 (4th Cir.1984)).
[xx] SeeFed. R. Evid. 502 Committee Letter.
[xxi]Fed. R. Evid. 502, Explanatory Note (rev’d 11/28/2007) (citing Hopson v. City of Baltimore, 232 F.R.D. 228, 224 (D. Md. 2005)).
[xxii] See Fed. R. Civ. P. 34(e).
[xxiii] SeeFed. R. Civ. P. 26(f)(3)(F), 26(c).