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Preparing for an FRCP 'Meet and Confer'

In today's litigious environment, both law firms and corporations are under mounting pressure to be much more proactive and process oriented when managing electronic discovery requests. This need is further compounded by the amendments to the Federal Rules of Civil Procedure (FRCP) that went into effect on December 1.

The intent of the new amendments is for cases to run smoother and focus on the merits rather than on the electronic discovery process. With the new elements in the 'meet and confer' conference requirement, counsel is now expected to understand its client's information infrastructure in order to negotiate what material will be disclosed, how it will be produced and in what timeframe. If either party has concerns about preservation, costs or burden, this is the time that these arguments need to be raised. The amendments also include a good faith and reasonableness 'safe harbor' provision that may protect the client in the event potentially relevant evidence is not preserved due to unintentional conduct. Most alarming is that all of this discussion and a good part of this activity, under FRCP Rule 26(f), must take place and be presented to the court within 120 days of lawsuits being served in federal court.

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