It has been more than four years since the amendments to the Federal Rules of Civil Procedure (FRCP) took effect, so one would think that litigators are conducting more thorough and defensible electronic discovery strategies. However, recent case law and court sanctions based on e-discovery negligence or obstruction tell a different story.
Consider the $8 million in sanctions that the plaintiff was fined in Qualcomm Inc. v Broadcom Corp. U.S.D.C., S.D. Cal. Case No. 05-CV-1958-B (BLM). In that case, the judge determined that Qualcomm attorneys played a role in deliberately withholding information from the defendant. Along with the millions in sanctions, the judge referred six of Qualcomm's attorneys to the State Bar of California.
The "Meet and Confer" is one area in which many litigants still struggle to comply with the FRCP and judges' expectations. According to FRCP Rule 26(f), both sides are required to Meet and Confer in order to negotiate the terms of e-discovery: what data will be disclosed, what format will be used when discoverable materials are produced to the other side, what the timelines are and other issues that go to the very heart of discovery. The Meet and Confer must also happen quickly, either "as soon as practicable," or at least 21 days before a scheduling conference is to be held or a scheduling order is due.
But while the Meet and Confer continues to be a challenge for many litigants, it doesn't have to be that way. With the right attitude, the right information and the right technology and processes, litigants can have a successful Meet and Confer that will help counsel on both sides lower risk and improve litigation workflow from suit to settlement or court.
The Price of Unproductive Meet and Confers
When the two sides fail to hammer out details during the Meet and Confer, they will often find themselves spending more time arguing about discovery than the merits of the case itself.
A lack of communication also means that relevant electronically stored information (ESI) may not come to light, while non-responsive information is over-produced. When this happens, it's difficult to weigh the proportionality of the case with the expense involved with e-discovery.
Judges are becoming increasingly impatient with counsel who fail to hold productive Meet and Confers. E-discovery is increasingly complex, and judges no longer want to act as referees. They may slap significant sanctions on the party that has failed to cooperate or comply with the rules laid out in the Meet and Confer, as in the Qualcomm case. E-discovery cases have tripped up others and brought seven-figure sanctions and fees such as the second ruling in Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010), where the judge ordered the defendant to pay more than $1 million in attorneys' fees and costs for discovery abuses. In the ruling in Victor Stanley, the judge noted that he had ordered the parties to Meet and Confer regarding discovery disputes, but the defendant continued to commit "the single most egregious example of spoliation that I have encountered in any case that I have handled..."
And in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, Case No. 05 Civ. 9016, 2010 U.S. Dist. LEXIS 1839, the judge sanctioned all thirteen plaintiffs for e-discovery failings that did not rise to the level of intentional or willful conduct.
Or the court may make discovery-related decisions that are not in the best interests of either party. This is what happened in Williams v. Taser International, 2007 WL 1630875 (N.D. Ga. June 4, 2007). In that case, counsel was not actually required to hold a Meet and Confer, since the case was filed before the amended FRCP took effect. Without any sort of understanding about how to conduct discovery, the two sides bickered extensively about how to produce emails held by the defendant. Even after the judge ordered the two sides to hold a Meet and Confer, they could not come to an agreement and submitted separate plans. The judge found both of these plans deficient and imposed his own protocol to settle the dispute a protocol that was difficult for both sides to comply with.
Along with sanctions and discovery-related decisions that are difficult to comply with, judges may deny motions based on poor Meet and Confer practices. In Mikron Ind., Inc. v. Hurd Windows & Doors, Inc., 2008 WL 1805727 (W.D. Wash. Apr. 21, 2008), the judge found that the defendants failed to Meet and Confer in good faith and denied their motion for a protective order asking the court to shift the costs of producing ESI to the plaintiffs.
Tips and Tools for a Productive Meet and Confer
Litigants can take steps to avoid these fates by taking advantage of tools, technologies and processes that can help ensure an effective, thorough Meet and Confer. The first step may require a change in mindset. Attorneys should look at this meeting as an opportunity for cooperation, rather than confrontation. By deciding ahead of time to take a collaborative approach with the other side's legal team, attorneys can focus on the real issues involved in the matter, not just how they will slog through huge mounds of data and force the other side to do the same.
The next obstacle is a logistical one. Counsel on both sides must hack through all the issues involved in discovery very early in the life of the matter. When attorneys aren't even sure who the custodians are or how much data may be potentially discoverable, holding a successful Meet and Confer is extremely challenging.
Some law firms have created workflow and documentation systems that help manage and produce successful Meet and Confers. New software applications also have the potential to help automate and make Meet and Confer preparation and execution a step-by-step process. This helps create a process that is repeatable and defensible.
The Meet and Confer continues to be a challenge for many attorneys, and the price for poorly managed ones can be high. At best, it simply makes attorneys look bad in front of clients, frustrates the judge and opposing counsel, and results in burdensome costs. At worst, it can involve sanctions and adverse rulings. But the challenges of Meet and Confer can be faced head-on. By taking proactive steps, litigants can streamline the discovery process and cut costs. And they will also stay on the good side of judges and clients alike.