Your Trusty Guide for Productive M&C Conferences
Our Meet and Confer Checklist is the new best friend to many a COVID-weary attorney and legal professional across the globe, as many are re-examining their eDiscovery practices and trying to make the most of their Meet and Confer (M&C) procedures.
More people than ever before now are working from home. Pre-COVID-19, about 10% of full-time employees worked from home, according to the Survey of Business Uncertainty (SBU), which is jointly managed by the University of Chicago Booth School of Business, Stanford University and the Federal Reserve Bank of Atlanta. SBU forecasts that nearly 30% of the workforce will work from home full-time post-pandemic.
In addition, the proliferation and increasing use of communications tools (Microsoft Teams, Slack and Zoom, for example) have led to exponential growth in the amount of confidential data being recorded, emailed, posted to the web and transferred between devices. Global data volumes are projected to skyrocket 530% from 2018 to 2025, according to a European Commission study.
Not surprisingly, those two converging trends (WFH plus snowballing data creation and transfer) add new challenges to collecting and organizing electronically stored information (ESI). In the Federal Rules of Civil Procedure (FRCP), which govern disclosure and discovery, Rule 26(f) requires that parties “confer as soon as practicable” and “state the parties’ views and proposals on… any issues about disclosure or discovery” of ESI. Additionally, the rule compels the parties to “develop a proposed discovery plan” prior to the pretrial conference. A thorough, comprehensive Meet and Confer Checklist serves as the perfect springboard from which to launch your discovery plan.
Conducting a productive Meet and Confer comes with its challenges, but the process does not have to be overwhelming, especially if you use our Meet and Confer Checklist as a GPS from the beginning of your process. Following the steps in the three areas below will:
- Situate you in a better position to comply with FRCP;
- Ensure your client gets all the data they need to support or defend claims;
- Help you move forward efficiently during eDiscovery; and
- Satisfy judges’ expectations that you held good faith meetings.
Before you do, here’s a teaser….
Before the Conference: Do Your Homework
Make the most of your meeting with proper planning before your Meet and Confer. The more prepared your team is, the better your attorneys will understand the client’s ESI landscape. Prior to the M&C, make sure the team:
- Identifies the client’s primary information systems and data storage locations (desktop computers, laptops, servers, mobile devices, social media, and cloud resources)
- Understands the client’s document retention policies and procedures and considers whether they need to be temporarily suspended to meet legal hold obligations
- Considers critical issues, e.g. difficulty and timeline for data collection, who will attend the conference, etc.
- Has a data production protocol ready to facilitate agreement by both parties as to what will be produced
At the Conference: Cover All Key eDiscovery Points
The Meet and Confer sets the stage for both parties to develop an eDiscovery plan that maximizes the identification of useful information while minimizing the time needed to collect and review the data. It also gives counsel an opportunity to resolve most issues early in the eDiscovery process, which saves time and money later. Here are several key things you want to accomplish during the M&C:
- Agree on potential custodians, or at least the primary custodians, and how the parties will identify other potential custodians.
- Consider the use of electronic custodian questionnaires.
- Identify data systems and resources.
- Discuss data preservation steps.
- Discuss collection methods that will ensure metadata preservation.
- Outline the timeline and establish reasonable deadlines.
- Review privilege and privacy issues, including clawback terms and processes.
- Consider technology-assisted review and analytics.
- Determine production format.
After the Conference: Memorialize the Meeting
No Meet and Confer conference is complete without proper documentation. As soon as possible, memorialize the M&C in a letter agreement or stipulation that summarizes key points upon which both parties agreed and disagreed, as well as future action items. Disagreements often occur during the meet and confer – and judges want to see that both parties worked in earnest to iron out differences. Make sure your document:
- Establishes a written eDiscovery protocol
- Documents steps for custodian interviews, data collection methods, keyword search processes, and review and production procedures
- Highlights specific areas where parties disagree
It’s also a good idea to ask the judge to memorialize any agreement through a court order or such acknowledgment.
BIA has spent nearly 20 years helping our clients’ legal teams prepare for and navigate litigation at all stages. Ten times out of ten, well-prepared teams heading into a Meet & Confer put themselves in a stronger position to help their own clients because they control the discovery process from the outset and minimize the time and cost involved.
Ready to take the next step to improve your Meet and Confer conference?
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