Summary of eDiscovery Rules 16(b) and 26(f): Meet and Confer

FRCP 16(b) and 26(f): Meet and Confer
Rule 16. Pretrial Conferences; Scheduling; Management
(b) Scheduling.
Rule 26. Duty to Disclose; General Provisions Governing Discovery
(f) Conference of Parties; Planning for Discovery.

Federal Rules of Civil Procedure 16(b) and 26(f) are grounded in that counsel should engage in a conference with opposing parties to discuss eDiscovery early and thoroughly. Parties are required to meet and confer a minimum of 21 days prior to the initial scheduling conference in regards to agreeing upon the various electronically stored information (ESI) involved in the discovery.

This includes forms of production, privileged information, deciding on data filters to be used, the number of custodians, various data sources that will be collected, the extent of metadata, and more. Essentially this step begins to dictate the progress and effectiveness of the litigation. By addressing issues around eDiscovery early, counsel is able to limit downstream issues.

Actions counsel can take during litigation to adhere to Rules 16(b) and 26(f) includes but isn’t limited to:

• Create a data mapping of your client’s IT structure, retention policies, and data sources.
• Issue a legal hold early for data preservation, defining the scope of discovery and relevant ESI to be preserved.
• Determine which information is privileged.
• Determine whether files will be required to be produced in their native format

Take-Away: Rules 16(b) and 26(f) are in place to ensure that a discovery plan is enacted early on, if not as soon as possible, and that there is communication between parties regarding the scope of discovery.