Litigants can meaningfully reduce the costs and risks associated with e-discovery in federal court by properly utilizing Federal Rule of Civil Procedure 26(f). Shortly after litigation ensues, Rule 26(f) requires the parties to meet and confer in advance of the first case management conference to discuss, among other things, "issues about disclosure or discovery of electronically stored information," or ESI. A party can use this mandatory conference to secure an adversary's agreement to a reasonable e-discovery plan or to identify disputed issues that should be resolved up front by the court. A litigant can then implement agreed-upon elements of its e-discovery plan and address any significant disputes with the court at the initial case management conference, not months or years later when its e-discovery actions will be judged in hindsight and the stakes are much higher. In addition to minimizing the costs and risks of e-discovery, a robust Rule 26(f) conference is in accord with prevailing judicial expectations about how parties should approach e-discovery.
The Opportunities Presented By A Rule 26(f) Conference
The costs, burdens and risks associated with e-discovery are by now well-known. Once litigation is reasonably foreseeable, parties have an ongoing duty to preserve, among other things, relevant electronically stored information, which is often stored amid massive amounts of irrelevant data on multiple media that may be expensive and difficult to access. Savvy litigants utilize various methods to cope with these realities, such as prioritizing document custodians who are most likely to have relevant materials, using electronic search terms to identify relevant documents, applying date cut-offs, appropriately limiting email discovery and using sampling methodologies. These techniques can significantly reduce the amount of electronically stored information that enters the collection, review and production process and dramatically reduce litigation costs at virtually every stage of the case.
The critical issue, however, is whether the techniques utilized by a party in the collection, review and production of electronically stored information will withstand scrutiny or will be found - perhaps years after the fact - not to comply with the party's discovery obligations. On this critical question, an increasing number of decisions illustrate that it is generally unwise to adopt an ad hoc approach to e-discovery, attempting to resolve e-discovery issues as they arise many months or even years into a case. In contrast, litigants can reduce the risk of adverse discovery rulings and cut litigation costs if they proactively formulate a robust and defensible e-discovery plan early in the case, ideally as part of the Rule 26(f) conference.
Under the Federal Rules of Civil Procedure, a Rule 26(f) conference must occur "as soon as practicable," but no later than 21 days before the initial scheduling conference is to be held as prescribed by Rule 16(b). Parties are required to, among other things, attempt in good faith to agree to a discovery plan that must be submitted to the court. The discovery plan must state the parties' views and proposals concerning "any issues about the disclosure or discovery of electronically stored information, including the form or forms in which it should be produced." Rule 26(f) does not by its terms require a party to present a detailed e-discovery plan to an adversary, but many adversaries will seek this information in formal discovery requests well after electronically stored information has been searched, reviewed and produced. The benefits of providing essentially the same information at the Rule 26(f) conference - before a party has undertaken to comply with its discovery obligations - can be substantial in terms of both efficiency and litigation strategy.
A. Effective Use of Rule 26(f) Can Reduce Costs and Provide Strategic Benefits.
It is often the case that both sides face roughly equivalent e-discovery burdens and therefore share an incentive to negotiate reasonable limits on the scope of e-discovery to reduce litigation costs. And, even in situations where the e-discovery burden is asymmetrical (e.g., an individual or small-entity plaintiff with little electronically stored information in a suit against large corporate entities), the plaintiff often has incentives to limit the costs associated with sorting through voluminous document productions, which can easily result without reasonable e-discovery limits.
In all of these situations, the parties can exchange proposals as part of the Rule 26(f) conference and seek agreement on the framework that will govern e-discovery during the case. Securing an adversary's agreement in this manner can have substantial economic and strategic benefits. In the first instance, a party can implement the agreed-upon elements of its e-discovery plan, which minimizes costs with the reasonable assurance that those elements will not be challenged later in the litigation. Moreover, even if an agreed e-discovery practice is later challenged, the challenging party must explain its change of heart. Unless circumstances have changed or there is some other meaningful basis for the challenge, the parties' agreement under Rule 26(f) should carry the day.
B. Disputed Issues Can Be Litigated Before the Collection, Review and Production Phase.
Of course, it will not always be possible to reach agreement with an adversary but, even in these situations, the attempt to reach agreement can have significant strategic advantages. In the first instance, the meet and confer concerning e-discovery issues may result in an agreement as to some issues, albeit not all of them, and the litigant should enjoy many of the benefits described above.
Even absent any agreement, however, there is often considerable value in identifying and efficiently litigating disputed issues (typically by submitting competing discovery plans) at the initial case management conference - before a party has undertaken to collect, review and produce most electronically stored information. Such ex-ante litigation of disputes can save time and money by defining discovery obligations prior to incurring most discovery costs. Conversely, if the parties do not confer in good faith at the initial conference, courts often simply order a "do-over" once a later dispute arises, requiring the parties to work collaboratively as they should have done at the outset.1This ex-post conference will occur after significant e-discovery expenditures have already been made. In addition, "[g]enerally, when a court orders a 'do-over' it gives serious consideration to cost shifting or cost sharing," based upon the blame assigned to the parties for failing to reach agreement.2
For example, in Trusz v. UBS Realty Investors LLC , the defendant contended that the plaintiff's document production was an improper "document dump" rather than a valid response to an overbroad discovery request.3After noting that the entire dispute "could have been eliminated had counsel actually conferred with each other about refining the search terms," the court stated that "[a]mong the items about which the court expects counsel to reach practical agreement without the court having to micro-manage e-discovery are search terms, date ranges, key players and the like."4Because the parties' misstep was a failure to communicate, the court ordered an " in person conference . . . to ascertain if there are more discrete search termsthat can be applied by defendants."5Had the parties discussed search methodology at the 26(f) conference, the dispute would have been avoided or would have occurred before significant e-discovery costs were incurred.
C. A Robust Approach To the Rule 26(f) Conference Can Reduce Litigation Risks.
A litigant that actively utilizes Rule 26(f) as described in this article can reduce its risks later in the case when discovery issues are litigated. Courts tend to view favorably a litigant's good-faith efforts to identify and resolve discovery disputes, particularly relating to e-discovery. Conversely, the failure to make a real effort to resolve discovery issues creates an unfavorable environment that can lead to various discovery motions or worse.
For example, the defendant in In re Seroquel Products Liability Litigation was sanctioned for, in part, "its uncooperative efforts to resolve technical issues" related to e-discovery.6The court noted that "[r]ather than working with Plaintiffs from the outset to reach agreement on appropriate and comprehensive search terms and methods, AZ undertook the task in secret."7In CBT Flint Partners, LLC v. Return Path, Inc. , the court, "baffled by Plaintiff's failure to engage in a meaningful discussion with [defendant] . . . regarding  discovery issues," ordered the plaintiff to pay 75 percent of the defendant's attorney's fees for the discovery dispute and refused to grant the plaintiff's motion to compel without the plaintiff agreeing to pay the bill.8
Indeed, Rule 37(f) expressly addresses situations where a party fails "to participate in good faith in developing and submitting a proposed discovery plan."9Certainly, there is by now widespread agreement that parties should at least attempt to act cooperatively in framing an e-discovery plan. Accordingly, courts urge parties to discuss ESI "early in the evolution of a case," and reject the practice of "one-paragraph boilerplate statements about ESI [that] wait for the explosion later."10A recent Southern District of New York opinion typifies this trend:
Once again, this Court is required to rule on an e-discovery issue that could have been avoided had the parties had the good sense to "meet and confer," "cooperate" and generally make every effort to "communicate" as to the form in which ESI would be produced. The quoted words are found in opinion after opinion and yet lawyers fail to take the necessary steps to fulfill their obligations to each other and to the court. . . . Lawyers are all too ready to point the finger at the courts and the Rules for increasing the expense of litigation, but that expense could be greatly diminished if lawyers met their own obligations to ensure that document production is handled as expeditiously and inexpensively as possible. This can only be achieved through cooperation and communication.11
In today's world, courts increasingly view e-discovery as a cooperative process and expect parties in litigation to behave accordingly. The numerous tactical and economic benefits that can flow from efforts to establish a detailed framework for e-discovery at the outset of the litigation also strongly suggest that a litigant should formulate an early e-discovery plan and utilize Rule 26(f) and initial case management conferences to implement as much of it as possible before the collection, review and production process begins. Doing so enables litigants to "save money, maintain more control over what information is disseminated, engender good will with courts, and generally get to the merits of litigation much sooner."12For all of these reasons, litigants should embrace the opportunity that Rule 26(f) affords.
1 See, e.g., Romero v. Allstate Ins. Co., 271 F.R.D. 96, 109-110 (E.D. Pa. 2010); S.E.C. v. Collins & Aikman Corp., 256 F.R.D. 403, 415 (S.D.N.Y. 2009).
2 Nat'l Day Laborer Org. Network v. U.S. Immigration & Customs Enforcement Agency, 2011 WL 381625, *5 n.36 (S.D.N.Y. Feb. 7, 2011).
3 2010 WL 3583064, *3-4 (D. Conn. Sept. 7, 2010).
4 Id. at *5.
5 Id. (emphasis in original).
6 244 F.R.D. 650, 652 (M.D. Fla. 2007).
7 Id. at 662.
8 2008 WL 4441920, *3-4 (N.D. Ga. Aug. 7, 2008).
9 Fed. R. Civ. P. 37(f).
10 Wells Fargo Bank, N.A. v. LaSalle Bank National Association, 2009 WL 2243854 (S.D. Ohio July 24, 2009).
11 Nat'l Day Laborer, 2011 WL 381625, at *8.
12 The Sedona Conference, The Case for Cooperation, 10 Sedona Conf. J. 339, 345 (2009).
Robert S. Berezin is a Litigation Partner in Weil's New York office and serves as trial counsel for clients in complex, high stakes, commercial litigation. Carmen E. Bremer is an Associate in the Patent Litigation practice group of Weil's Litigation Group in the Dallas office.