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Meet & Confer Checklist

By Mary Mack
September 28, 2006

Preparing for the amendments to the Federal Rules of Civil Procedure (FRCP) will require careful planning and preparation. Following are steps designed to help general counsel more effectively negotiate the scope of electronic discovery at an FRCP Rule 26(f) Meet & Confer conference:

Step #1: Complaint Served

  • Document date complaint was received
  • Identify potentially relevant custodians

Step #2: Litigation Hold/Preservation Process

  • IT, legal & records management meet and confer on litigation hold strategy
  • Issue litigation hold order to all custodians
  • Re-confirm that all appropriate destruction policies have been suspended
  • Identify IT owner for evidence preservation effort ('most knowledgeable' person)
  • Meet with key custodians to ensure compliance with legal hold
  • Collect & preserve potentially relevant evidence (in place or in secure evidence repository)

Step #3: Early Case Planning

  • Gather existing documentation and assign tasks for mandatory disclosure
  • Collect and review subset of key custodians/tapes
  • Test search term, sampling and other culling strategies
  • Extrapolate findings to determine potential costs and timeline implications of your own strategies and for those requests that may be presented at the Meet and Confer

Step #4: Early Discussions

  • Formulate a cost-effective yet fair scope of discovery:
    • Number of relevant custodians
    • File types & locations
    • Accessible vs. inaccessible ESI
    • Format of production
    • Reasonable timeframe
  • Create a record of good faith and cooperation
  • Maximize cost shifting opportunities
  • Solidify preservation, privilege and reduction strategies

Step #5: The Initial Meeting

  • Bring with you:
    • Content map
    • Budgeting information
    • All back-up documentation
    • Expert who is knowledgeable about the entire e-discovery process
    • Blank calendar for on-site planning
  • Have some low exposure, low cost items to use during the negotiation
  • Control your own destiny, if you can, by coming to an agreement
  • Promise only what you are certain you can deliver
Mary Mack is Technology Counsel for Fios, Inc. She is a member of the Board of Editors of our sibling publication, e-Discovery Law & Strategy. Co-author of the book, A Process of Illumination: The Practical Guide to Electronic Discovery, Mack has spoken at numerous trade-shows and conferences and holds certifications in Computer Forensics and Computer Telephony.

Preparing for the amendments to the Federal Rules of Civil Procedure (FRCP) will require careful planning and preparation. Following are steps designed to help general counsel more effectively negotiate the scope of electronic discovery at an FRCP Rule 26(f) Meet & Confer conference:

Step #1: Complaint Served

  • Document date complaint was received
  • Identify potentially relevant custodians

Step #2: Litigation Hold/Preservation Process

  • IT, legal & records management meet and confer on litigation hold strategy
  • Issue litigation hold order to all custodians
  • Re-confirm that all appropriate destruction policies have been suspended
  • Identify IT owner for evidence preservation effort ('most knowledgeable' person)
  • Meet with key custodians to ensure compliance with legal hold
  • Collect & preserve potentially relevant evidence (in place or in secure evidence repository)

Step #3: Early Case Planning

  • Gather existing documentation and assign tasks for mandatory disclosure
  • Collect and review subset of key custodians/tapes
  • Test search term, sampling and other culling strategies
  • Extrapolate findings to determine potential costs and timeline implications of your own strategies and for those requests that may be presented at the Meet and Confer

Step #4: Early Discussions

  • Formulate a cost-effective yet fair scope of discovery:
    • Number of relevant custodians
    • File types & locations
    • Accessible vs. inaccessible ESI
    • Format of production
    • Reasonable timeframe
  • Create a record of good faith and cooperation
  • Maximize cost shifting opportunities
  • Solidify preservation, privilege and reduction strategies

Step #5: The Initial Meeting

  • Bring with you:
    • Content map
    • Budgeting information
    • All back-up documentation
    • Expert who is knowledgeable about the entire e-discovery process
    • Blank calendar for on-site planning
  • Have some low exposure, low cost items to use during the negotiation
  • Control your own destiny, if you can, by coming to an agreement
  • Promise only what you are certain you can deliver
Mary Mack is Technology Counsel for Fios, Inc. She is a member of the Board of Editors of our sibling publication, e-Discovery Law & Strategy. Co-author of the book, A Process of Illumination: The Practical Guide to Electronic Discovery, Mack has spoken at numerous trade-shows and conferences and holds certifications in Computer Forensics and Computer Telephony.

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