When must the Rule 26(f) conference happen?

Rule 26(f)(1) requires the parties to confer "as soon as practicable, and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b)." Rule 16(b)(2) requires the court to issue that scheduling order within the earlier of 90 days after any defendant has been served or 60 days after any defendant has appeared. The written report follows within 14 days after the conference.

What ESI issues must be discussed?

Rule 26(f)(3)(C) requires the discovery plan to state the parties' views and proposals on "any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced." Rule 26(f)(3)(D) adds privilege, including whether to ask the court for an order under Federal Rule of Evidence 502. In practice the useful conference goes further: custodians, date ranges, sources, search methodology, metadata fields and load-file format.

Is an ESI protocol required at the meet and confer?

The rules require the conference and the report, not a protocol. But the report has to state the parties' positions on ESI form and preservation, and the practical way to do that is to negotiate a protocol and attach it or file it as a stipulation for entry as an order. Several district courts publish ESI checklists and model orders precisely to structure this conversation.

Meet and confer in eDiscovery: the Rule 26(f) conference

How does the Rule 26(f) meet and confer work?

The conference is where the mechanics of electronic discovery are settled while they are still cheap to settle. Rule 26(f)(2) puts the obligation on the parties jointly: they must “consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan.”

An unprepared conference produces a plan that says the parties will produce ESI in a reasonably usable form and will meet and confer further if disputes arise. That sentence guarantees the disputes. A prepared conference produces agreement on the things that later cost money to change: which custodians and sources are in scope, the date range, whether search terms or technology-assisted review will be used and what is disclosed about it, whether production is native, TIFF or hybrid, which metadata fields travel with it, the load-file format, deduplication scope, privilege-log form, and a 502(d) clawback.

What the parties agree at the conference is written up as an ESI protocol. Preparation means numbers. A party that has run early case assessment can say what a proposed term list actually returns; a party that has not is negotiating scope on instinct.

Rule 26(f) is a federal rule. Most states have an analog, and many courts add their own ESI checklist or standing order; the Northern District of California’s ESI checklist is the best known.

What does the Rule 26(f) meet and confer look like in practice?

Two versions of the same line in a discovery plan:

The parties will produce ESI in a reasonably usable form and will meet and confer regarding any disputes.

The parties have agreed to the ESI protocol filed herewith, which specifies single-page Group IV TIFF production at 300 DPI with document-level extracted text; native production of spreadsheets, presentations, audio and video with slip-sheet placeholders; the 27 metadata fields listed at Exhibit A; DAT and OPT load files using Concordance default delimiters; global deduplication across custodians with an ALLCUSTODIANS field; and entry of an order under Fed. R. Evid. 502(d).

The first sentence is compliant and useless. The second is what the conference is for, and it is reached by settling each of those decisions before the conference rather than by agreeing to agree. (Illustrative language, not legal advice, verify local rules.)

How does the meet and confer show up on an invoice?

The conference generates almost no direct cost and determines a great deal of the eventual bill. Where it does bill directly, it is project management hours: vendor or consultant time to prepare volume figures, run term-hit reports and advise on format, billed hourly at a rate the Fee Field Guide records as discretionary and rarely capped.

The indirect effect is the whole invoice. Agreeing to image everything commits every spreadsheet to format conversion charges. Agreeing to global deduplication reduces the volume that processing and recurring hosting are billed on, across every custodian, for the life of the matter. Agreeing a non-standard field order or an unusual load-file format can turn each production into billable PM time. Counsel controls more of the eventual cost at this conference than at any later point.

Sources

Fed. R. Civ. P. 26(f)(1), (2), (3)(C) and (3)(D), quoted.
Fed. R. Civ. P. 16(b)(2).
ESI checklists and guidelines of the U.S. District Courts for the Northern District of California, the District of Kansas and the District of Maryland.
The Sedona Conference, Principles, Third Edition, Principle 3 (early agreement on ESI).
Fee ranges: the Fee Field Guide dataset.

Meet and confer