Integreon

We already know just how important meet and confer is for electronic discovery. But, do you also know who should be at the meet and confer?

Here’s a pop quiz:

What makes a good meet and confer team?

(a) Crack team of e-discovery professionals
(b) Lone-wolf litigator
(c) Group of attorneys with varying levels of ESI acumen

Choice (a) would seem like a great answer, but unfortunately this answer is rarely the “final answer”.

I recently conducted an informal survey of ten high-profile, experienced e-discovery/litigation support professionals and found that four had never been to a Federal Rules of Civil Procedure (FRCP) 26(f) “Meet and Confer” meeting. The six who had done so averaged 3.8 meet and confers per person since the amended rules took effect in December 2006, over the last three years.

All ten e-discovery professionals believe their firms are missing out on an opportunity to tap their skills and experience. Of course, many practicing attorneys have become proficient in matters involving electronically stored information (ESI) or are themselves e-discovery professionals. However, most litigators can benefit from specialists who spend their days ‘living and breathing’ e-discovery.

A practicing attorney may be a brilliant strategist, possess a photographic memory of case law, and have superlative negotiation skills, but may not know the nuts and bolts of ESI management. Many e-discovery failures are the result of seemingly small details or technological nuances. It is for these details and nuances that the litigation support professional serves as an invaluable member of the case team.

The FRCP implicitly supports the idea that e-discovery professionals should be part of the team. For example, Rule 26(a)2(B) sets standards for data accessibility (“not reasonably accessible because of undue burden or cost”). The e-discovery professional is well placed to help assess the practical factors that govern application of this standard. This person is familiar with not only with various IT infrastructure scenarios but typically has a wealth of experience organizing collections and even personally collecting data from multiple systems. More importantly, the e-discovery professional is usually the person at the firm who is most familiar with budgeting for discovery projects and so understands the associated costs of access.

Beyond the question of accessibility, litigation support and e-discovery professionals can also help lawyers negotiate appropriate search terms. This idea is supported in the FRCP comments, which state:

“The volume of – and the ability to search – much electronically stored information means that in many cases the responding party will be able to produce information from reasonably accessible sources that will fully satisfy the parties’ discovery needs. In many circumstances the requesting party should obtain and evaluate the information from such sources before insisting that the responding party search and produce information contained on sources that are not reasonably accessible…”

Defensible search and care in specifying search terms and strategy have received much press of late. I believe the message is that e-discovery data analytics and sophisticated search are professional disciplines. Certainly Magistrate Judge Facciola has made this point strongly in U.S. v. Michael John O’Keefe, 2008 WL 449729 (D.D.C.) where he noted  that establishing the appropriate search terms:

“is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics, and linguistics… Given this complexity, … [t]his topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence.”

I believe that by “layman,” Judge Facciola meant an IT professional or attorney who is not familiar with the complexity of searching ESI. The layman won’t be conversant with sophisticated Boolean, proximity and meta data search syntax, let alone the pitfalls inherent in different email platforms, file types, storage architecture and data bases.

Magistrate Judge S. Allan Alexander, Northern District of Mississippi, recently “imposed” an electronic discovery expert on defendants in, In Maggette, et. al. v. BL Development Corp., et. al., 2009 U.S. Dist. Lexis 116789 (N.D. Miss. Nov. 24, 2009). Not only making the case for appropriate preparation but participation by someone with the appropriate skills.

Why not have the e-discovery professional attend the 26(f) conference in order to prevent the parties from agreeing to a flawed search method or even a list of overly-broad search terms? The FRCP committee commented:

“Whether a responding party is required to preserve unsearched sources of potentially responsive information that it believes are not reasonably accessible depends on the circumstances of each case. It is often useful for the parties to discuss this issue early in discovery.”

“In appropriate cases identification of, and early discovery from, individuals with special knowledge of a party’s computer systems may be helpful.”

These statements from the FRCP clearly make the case for early participation by an
e-discovery professional. A 26(f) team without an ESI resource may lack key skills, including:

• An understanding of forms of production including paper, TIFF and various native and metadata formats
• Familiarity with document retention policies and litigation hold compliance, methods and applications
• A technical understanding of collection issues including when and how to perform forensic work
• Custodian interview management skills
• Early Case Assessment acumen
• Ability to draft data maps
• Search, data analytics and ESI culling methods
• A focused understanding of IT infrastructure from the production perspective
• Personal knowledge of reliable ESI vendors/service providers
• Project management and deadline management experience
• Budget, budget, budget

If a litigator doesn’t feel comfortable bringing his firm’s e-discovery support expert to the meet and confer, certainly preparation for the 26(f) should be enhanced with the e-discovery professional’s participation. The unfortunate experience of many e-discovery professionals is that the litigator calls up saying, “We’re having the meet and confer tomorrow…”, effectively short circuiting any contribution the e-discovery professional could make.

I feel certain that although not specifically mentioned, the Sedona Conference Cooperation Proclamation encourages attorneys to cooperate within the case team consisting of both inside and outside counsel, paralegals, IT and e-discovery professionals.

The proclamation mentions, in passing, the participation by non-attorneys, in discovery techniques. (“Part III: Tools - Developing and distributing practical ‘toolkits’ to train and support lawyers, judges, other professionals, and students in techniques of discovery cooperation, collaboration, and transparency.”)

In answer to the pop quiz for which this blog post is titled, ‘no’ – you cannot have an effective meet and confer without the benefit of the presence, or at least input, of an e-discovery specialist.

Many industry experts also believe that legal budgets in 2010 are likely to stay flat or continue to shrink. Therefore, in-house counsel remain under tremendous cost-control pressure. A good way to minimize the risk of going over budget is to plan carefully and gain control over the data and search strategy as early as possible. The best way to do that is by bringing in the appropriate experts to the all-critical meet and confer sessions.

[For a lighter look at the future of EDD, see my guest blog post, Delatio Electrics (by Babs Deacon), at the EDD Update blog.]