FRCP 26(f) Conference of the Parties; Planning for Discovery

Rule 26(f) is the meet-and-confer session. This rule forces all parties to meet within 99 days of the filing of the lawsuit and at least 21 days before a scheduled conference. At this get-together, you’re supposed to play nice to discuss the nature of the claims and the ESI to back them up. The intent of this rule is to speed up or increase the possibility of a quick settlement. Judges expect you to resolve any disputes between yourselves — or at least attempt to do so.
Before you meet and confer, your attorney has a duty to become familiar with your ESI. He should meet with IT personnel to identify where and how ESI is stored, how accessible it is, and the estimated cost of retrieval. He needs to arrive armed with this intelligence to strike a good deal (or at least avoid being duped into a bad one).
Your attorney should also have a good idea of the relevant ESI that the other side may have in its possession. Further, he should make an initial determination of any relevant ESI that a third party may possess. You should also know who’s going to be your company’s FRCP 30(b)(6) witness, also known as a deposition designate. Rule 30(b)(6) requires you to designate one or more individuals to prepare for and testify on behalf of your company during deposition. You read about witnesses later in “FRCP 30(b)(6) Designation of a Witness” section.
In complex civil litigation or those involving huge volumes of ESI, a single meet-and-confer session is not enough. You may need to investigate your ESI more thoroughly and even come back with consultants to help understand technical issues.