Tuesday, February 07, 2012

Rule 26(f) Conference Checklist

F.R.C.P. 26(f) requires that all parties confer “as soon as practicable—and in any event at least 21 days before a scheduling conference is set” to discuss “the nature and basis of their claims and defenses,” “the possibilities for promptly settling or resolving the case,” “arrange for the disclosures required by Rule 26(a)(1),” “discuss any issues about preserving discoverable information,” and “develop a proposed discovery plan.”  The discovery plan prepared by the parties should address “changes . . . in the timing, form, or requirements for disclosures under Rule 26(a),” “the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues,” “any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced,” “any issues about claims of privilege or of protection [of] trial-preparation materials,” and “what changes should be made in the limitations on discovery imposed under these rules . . . .”

C.R.C.P. 16(b)(3) provides a similar requirement under Colorado law, requiring the parties to “no later than 15 days after the case is at issue . . . confer with each other about the nature and basis of the claims and defenses; the matters to be disclosed pursuant to C.R.C.P. 26(a)(1); and whether a Modified Case Management Order is necessary.”  While the specific requirements of C.R.C.P. 16(b)(3) are less detailed than F.R.C.P. 26(f), it is a best practice to follow the federal guidelines in state court conferences.

This initial conference is also an excellent opportunity to outline additional time and cost-saving measures.  One best practice is to provide to opposing counsel via letter a proposal for the following items.  This serves both to streamline and guide the 26(f) conference and to create a record of the proposals and good faith efforts made to streamline discovery.

Consider discussing some or all of the following at a Rule 26(f) conference:

Nature and Basis of Claims and Defenses:
- Plaintiff should inquire into anticipated defenses if Answer not yet filed, or for explanation of affirmative defenses where presented
- Defendant should inquire into factual basis for claims where not specifically articulated in Complaint

- Make initial/follow-on settlement offers if appropriate
- Discuss timing of future settlement efforts and mediation in light of discovery schedule

Initial Disclosures, ESI, Preservation of Information, Production Format:
- Discuss scope of appropriate initial disclosures where appropriate
Discuss types of ESI that may be relevant, including local storage, networked storage, individual employee computers, smart phones (repositories of text messages and photos), corporate blogs and wikis, individual and corporate social media information on Facebook, blogs, Twitter, corporate voicemail, personal and corporate instant messaging, calendaring systems
- Where Electronically Stored Information exists (nearly every case), discuss the extent and structure of each parties ESI and consider agreeing that the parties will produce an outline of their ESI storage and structure to streamline requests and production.  Overview of ESI systems should include discussion of:
- Date ranges for review
- Name and role of ESI custodians
- ESI system types and structure (including individual workstations, shared drives, etc.
- File types that will be searched
- Search terms that will be used

- Counsel should familiarize themselves with their own client’s ESI structure and information before the Rule 26(f) conference
- Consider agreeing that, following receipt of outline of ESI custodians and structure, each party may nominate 5 ESI custodians in opposing party for preservation and review
- Discuss format for production of documents (e.g. PDF files with OCR layer provided by email to opposing counsel where size permits, otherwise by US Mail or courier)
- Discuss importance that documents be produced in the order in which they are kept in the ordinary course of business
- Discuss necessity and form of protective order for confidential documents
- Agree that, where native format of ESI differs from production format, parties will additionally produce document in native-format where specifically requested (i.e. Excel spreadsheets (.xls), QuickBooks files (.qbb), etc.)
- Address scope of potentially relevant information including ESI, and appropriate preservation measures
- Discuss rolling production time-frames in light of discovery schedule

Privilege Issues:
- Address any case-specific privilege issues
- Agree on timing of disclosure of privilege log and format for log
Agree that documents created after a certain date (often case filing date) need not be included on privilege log
- Agree to claw-back provision that inadvertent production will not waive privilege
- Consider agreeing that each side may designate up to 20 documents from privilege log for in-camera inspection

Proposed Discovery Plan (for inclusion in proposed scheduling order):
- Discuss potential for informal discovery
- Number and names of deponents and time limitations, location
- Number of written discovery requests
- Discuss number and deadline for disclosure of expert witness reports
- Discuss whether limitation/elimination of expert depositions is appropriate

Additional Cost/Time-Saving Measures
- Agree that all discovery disputes will be discussed by phone call between counsel, not via letter
- Agree that all depositions will be scheduled by agreement (no unilateral notices)
- Agree that all deposition exhibits will be numbered sequentially
- Agree that, if FRCP don’t apply, neither side will be entitled to communications with experts not discoverable under FRCP 26(a)(2)

The agreements reached during the Rule 26(f) conference, as well as the competing views of the parties where no agreement was reached, should be documented in a joint report to the Court that must be filed within 14 days after the conference.

Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.

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