In order to conduct a successful Rule 26(f)and Rule 16 “meet and confer” session with opposing counsel, a thorough understanding of what specific ESI is of interest and the numerous possibilities of where and which devices it is being stored on is necessary. While the producing party clearly has a duty to preserve all relevant and responsive evidence pertaining to the complaint, the requesting party has the very same responsibilities when it comes to preservation of evidence. In commercial litigation, where large numbers of employees, computers, voice mail systems, computer networks, back-up systems, and massive quantities of portable storage devices (CDs, DVDs, “Thumb” drives, portable hard drives etc.), the challenge to identify and inventory all of the potential devices of interest to invoke a preservation hold or to launch an e-discovery request, the support from seasoned professionals in digital evidence discovery should provide valuable advantages.
The decision to initiate a “meet and confer” session or not is no longer a matter of choice as it was in the past. Instead, litigators will now need to be alert to the fact that in both federal and state hearings, it will expected that opposing sides will meet to discuss a wide range of topics concerning electronically stored information that relate to the case. The outcome of these pretrial sessions may very well determine the eventual outcome of the case, especially if both parties are unable to reach a mutually agreeable arrangement for electronic discovery and production which would result in the Court having to weigh in on making many of the e-discovery related decisions. The following issues are a short list of the many details that you will want to be fully prepared to cover in such a meeting:
* Discussion about the full spectrum of ESI of interest to be requested
* Full disclosure of all identified parties and their respective computer devices on which all relevant ESI is likely to be stored
* An in depth description of the commercial client’s information technology infrastructure as it relates to relevant ESI
* To discuss the search criteria methodology being considered by the producing party to identify and harvest all relevant response materials to the requesting party
* To be prepared to request that a formal, detailed protocol has or will be put into effect to ensure that all ESI responsive materials will be preserved throughout the litigation and that respondent’s counsel is directly responsible
* To clarify which specific forms that all ESI will be produced to the requesting party
* To inform opposing counsel that deleted e-mails and other data of relevance to the case will be included in future e-discovery motions-whether it be under a protective order or some other formal agreement between parties
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