If electronic discovery is the vehicle through which lawyers conduct business, the meet and confer is the pre-purchase inspection.
Federal Rule of Civil Procedure 26(f), enacted in 2007, requires that parties to litigation "meet and confer" to negotiate the terms of electronic discovery at least 21 days before a scheduling conference is to be held, or a scheduling order is due.
The penalties for non-compliance can be steep, according to Scott Devens of 26-F, an e-discovery software company. Judges have been known to impose sanctions as high as $8 million on parties that fail to play by the electronic discovery rules. And that's before referring the party's attorneys to their state bar.
So how can you ensure a successful meet and confer, and steer clear of penalties and discipline? Here are three tips to help you make the most of your mandatory meet and confer.
- Play nice. If you cannot work out discovery details during the meet and confer, you are likely to find yourself in a cranky judge's chambers. Disagreements during this pre-discovery meeting not only increase the cost of discovery, they can lead to expensive sanctions. Be honest about your client's electronically stored information to facilitate effective discovery.
- Get technical. Attorneys need to know who holds the critical information in a case and how much data is discoverable. Some law firms have created documentation systems to help manage this information for meet and confers. If you don't currently have a documentation system, consider investing in software to help automate the process.
- Agree to disagree. Meet and confers may be part of the adversarial process, but they don't have to be unpleasant. Approach your meet and confer as a way focus on the issues and better serve your client. Before issues arise, work with opposing counsel to develop a structure for resolving disagreements.
- States Embrace Electronic Discovery (FindLaw's Technologist)
- Potential Jail Time For Electronic Discovery Abuse and Spoliation of Evidence (FindLaw's Technologist)
- A Discussion of Legal Ethics Issues Within Electronic Discovery (FindLaw's Legal Technology Center)