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Don't Get Sanctioned Over an Unsuccessful 'Meet and Confer'

By Cynthia Hsu, Esq. on October 12, 2011 | Last updated on March 21, 2019

Attorneys everywhere beware: make sure your "meet and confer" is successful, otherwise you may face sanctions.

Discovery sanctions are probably something that lawyers are acutely aware of. In one case, Qualcomm was fined $8 million when a judge found their attorneys deliberately withheld information from the defendant, Broadcom Corp.

How do you avoid sanctions? Why follow the rules of civil procedure, of course.

In federal courts, the Federal Rules of Civil Procedure is king. Lawyers need to make sure they comply with FRCP Rule 26(f), which lays down the requirements for a "meet and confer." Basically, the meet up is a time when both sides come together to make decisions on their discovery plan.

With an increased amount of e-discovery, plans now need to include technical decisions such as what format the data will be in and what files will be disclosed.

Keep in mind that all of these decisions need to be made early on in the litigation process. The FRCP mandates that the "meet and confer" occur at least 21 days before a scheduling conference, or as "soon as practicable."

This can be a daunting task, especially when there's a whole lot to discuss with little time to prepare. How can you ensure that your meet and confer will run smoothly?

For one, it may be time to approach the conference as a collaborative effort rather than a confrontation. Conferences that suffer from a lack of communication can ultimately result in information being accidentally withheld.

Second, be sure that you take advantage of technological tools to organize your data. Be prepared for the meeting. Know where documents and information are.

After all, it's better to have a smooth "meet and confer" versus one where you may end up inadvertently bilking the other side of information they need. And end up with some discovery sanctions in the process.

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