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Failed 'Meet and Confer' Can Lead to Sanctions, Bar Discipline

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By Stephanie Rabiner, Esq. on December 15, 2011 5:49 AM

A "Meet and Confer" under Rule 26(f) can set the tone for an entire trial.

It can also lead to millions of dollars in sanctions and fees, and a trip before the state bar disciplinary committee.

Judges have become increasingly fed up with bickering attorneys and unproductive meetings. Whether or not attorneys deliberately withhold information, or engage in willful conduct, judges are striking back. And it's not pretty.

The amended rules require both sides to Meet and Confer at least 21 days before a scheduling conference or scheduling order is due. Parties are supposed to develop a discovery plan and negotiate the terms of e-discovery. Parties are supposed to do so in good faith.

What may be good faith to you, may not be good faith to a judge. Especially when bickering is rampant and no agreement has been met.

And when no agreement exists, you may have cost your client a significant amount of money. A failed Meet and Confer often ends with a judge choosing the terms of discovery, which may be difficult to follow.

For slightly more egregious failings, judges are imposing seven-figure sanctions, and referring attorneys to the state bar. Qualcomm v. Broadcom ended in both of these.

Meet and Confers don't have to have such negative consequences. You are there to negotiate, so remember that communication is the key to success. And so is cooperation. Add in effective software systems that can help manage and preserve documents, and you should be able to avoid a disastrous outcome.

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