By Chuck Kellner, SVP, eDiscovery Expert

The message is that counsel has to get a handle on their clients’ data and architecture in preparing for discovery. Otherwise, says Judge Timothy Hillman, U.S. Magistrate Judge for the District of Massachusetts, they’ll be in my courtroom “facing down the barrel of my gun”.

In some of the worst possible Boston weather, the local chapter of the Association of Litigation Support Professionals filled a conference room at Holland & Knight’s Boston office. At the front, were Judge Hillman, Michelle Treadwell Briggs, who is a litigating attorney and Senior Manager of Litigation Technology at Goodwin Procter LLP, and Joan Washburn, Director of Litigation Support at Holland & Knight LLP.  The topic of the day was “Rule 26(f) “Meet and Confer” Strategies”.
Like other US Magistrates, Judge Hillman sees a lot of discovery disputes. But he has some sympathy for outside counsel, whom has the “impossible situation” of having to rely on clients’ say-so about their systems, their litigation holds, their data, and their potentially responsive data. Outside counsel has to come up to speed on thorough investigation, and according to a long and growing line of cases, must independently inquire and verify.

Treadwell-Briggs emphasized the cost-cutting opportunities found in good preparation for Rule 26(f) meet and confers. Clients want an answer to “Why spend all that money?” when the crux of the case is about only a handful of documents. She advises that preparing for meet-and-confer and getting agreements on phased discovery, limited scope, or targeted custodians are powerful cost-saving techniques.

Washburn talked about good execution and managing both attorneys’ and clients’ expectations. Preparing well for meet-and-confer means that you have a well-documented identification and hold process in place, and good metrics and metadata from the collection that can help inform the likely size, cost and timing of the review. Preparing well also means that you have a hand in how the other side is going to produce data to you.

The panel and audience had a healthy exchange on vetting and disclosing criteria for search and methods for review. All agreed that if the parties are going to use search terms, they should test and vet them in advance, against the actual data. All agreed that technology-assisted reviews play an important role in reducing the overall cost of discovery, and that sampling can play an important role in phased discovery.  Local Rule 26.3 in Judge Hillman’s court encourages counsel to offer, and gives judges the discretion, to order phased discovery.

Notably, all three emphasized the perils of client self-collection. Even experienced litigators have difficulty getting clients to commit to a professional and well-documented litigation hold and collection, against the risks of spoliation, authentication, and motions to compel. “Just invite them to attend and participate in a Rule 16 hearing,” said Judge Hillman, “to listen in on the nuts and bolts of fact discovery. There’s nothing like a trip to the courthouse” to get you to understand why you don’t want to “have to come back again.”

Boston ALSP is a collegial, experienced and seasoned group of eDiscovery professionals. The programmed lunches push well beyond the “101” class. Catching up with friends and colleagues makes it all the more worthwhile.

Background:

Judge Timothy Hillman and the Boston ALSP discuss Rule 26(f) ‘Meet and Confer’ Strategies
Source: original article
Author: d4admin
Categories: Electronic discovery, e-discovery, ediscovery

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ALSP’s inaugural conference, ALSP 2008 Fall Forum: Education Through Collaboration will be held November 13-14, 2008 at the Hyatt Regency McCormick Place in Chicago, Illinois.

Track 1 on November 13 is designed for junior-level litigation support practitioners and individuals who are moving into litigation support from areas such as law, technology and professional services. Read more…
An interactive executive workshop on the afternoon of November 13, will gather litigation support managers and like professionals to discuss tools for tracking projects. Read more…
An open reception the evening of November 13 allows all attendees to connect and exchange ideas.
Track 2 on November 14 is for senior-level professionals, and will delve into trends, complex issues, and creative solutions in the litigation support profession now and for the foreseeable future. Read more…
Top solution providers also will be on hand to provide information and demonstrations of the latest tools used in the litigation support arena.

Get the latest event details here.