FRCP 26(f)Sedona Principle 3 & Commentaries

Ryann M. Buckman

Electronic Discovery

September 21, 2009

Details of FRCP 26(f)

Details of Sedona Principle 3 & Commentaries

E-Discovery

Conclusion

Details of FRCP 26(f)

Details of Sedona Principle 3 & Commentaries

E-Discovery

Conclusion

What does 26(f) cover in general?

What do the provisions mean?

Rule 26: Duty to Disclose; General Provisions Governing Discovery

(f) Conference of the Parties; Planning for Discovery

(1) Conference Timing

(2) Conference Content; Parties’ Responsibilities

(3) Discovery Plan

(4) Expedited Schedule

Details of FRCP 26(f)

Details of Sedona Principle 3 & Commentaries

E-Discovery

Conclusion

What does 26(f) cover in general?

What do the provisions mean?

26(f)(1) Conference Timing

• As soon as practicable

• A minimum of 21 days before scheduling conference

26(f)(2) Conference Content; Parties’ Responsibilities

• Consider claims and defenses/ Possibility of settling

• Potential discovery problems

• Preservation

• Develop discovery plan

• Attorneys are responsible for: (1) arranging the conference, (2) good faith, (3) submitting discovery plan within 14 days after conference.

Details of FRCP 26(f)

Details of Sedona Principle 3 & Commentaries

E-Discovery

Conclusion

What does 26(f) cover in general?

What do the provisions mean?

26(f)(3) Discovery Plan

•Amend aspects of required disclosures under 26(a)

• Subjects where discovery may be needed and timing of the discovery process

• ESI: Potential Issues/Problems and form of production

• Privilege Procedure

• Changes of Discovery Limitations

• Other orders under 26(c), 16(b), and 16(c)

26(f)(4) Expedited Schedule

• “Meet and confer” may be required in fewer than 21 days.

• Discovery plan should be given in writing less than14 days after conference or may be provided orally.

Details of FRCP 26(f)

Details of Sedona Principle 3 & Commentaries

E-Discovery

Conclusion

Sedona Principle 3

Commentary

Sedona Principle 3

“Parties should confer early in discovery regarding the preservation and production of electronically stored information when these

matters are at issue in the litigation and seek to agree on the scope of each party’s rights and responsibilities.”

Details of FRCP 26(f)

Details of Sedona Principle 3 & Commentaries

E-Discovery

Conclusion

Sedona Principle 3

Commentary

• The meet and confer depends upon the parties’ candor, diligence and reasonableness.

• The requesting party should have sufficient knowledge of the production options in order to be able to request a form.

• Purpose: Prevent discovery disputes in order to foster discovery.

Details of FRCP 26(f)

Details of Sedona Principle 3 & Commentaries

E-Discovery

Conclusion

Other FRCP Implicated

FRCP 16: Scheduling Conference

• 26(f)(1): The “meet and confer” must be held 21 days before the Rule 16 scheduling conference.

•16(f)(1)(B): Authorizes sanctions for not being prepared or not participating in 26(f) conference in good faith.

FRCP 34(b)(1)(C): Allows the requesting party to specify the form of production of ESI.

FRCP 34(b)(2)(D): The responding party can object to the form requested.

FRCP 34(b)(2)(E)(ii): If the requesting party does not specify a form, the responding party must produce in a form in which the information is ordinarily maintained or in a reasonably usable form.

Details of FRCP 26(f)

Details of Sedona Principle 3 & Commentaries

E-Discovery

Conclusion

Conclusion/ Outcome

Questions

FRCP 26(f) and Sedona Principle 3 both require:

• The parties to work cooperatively

• In conferring about ESI/Discovery

• Prior to the Rule 16 Scheduling conference

Details of FRCP 26(f)

Details of Sedona Principle 3 & Commentaries

E-Discovery

Conclusion

Conclusion/ Outcome

Questions

Question 1: Does it harm the plaintiffs case to do away with the adversarial system during the rule 26(f) “meet and confer?”

Question 2: Should rule 26(f) be amended to say explicitly what aspects of e-discovery should be addressed at every “meet and confer”?