eDiscovery Meet & Confer Sessions: The Importance of Thoughtful Negotiation
I had the privilege of co-chairing and serving as a faculty member for the 6th Annual Sedona Conference© Institute eDiscovery Negotiation Training (or “eDNT”) program held last week in New York City. As I’ve said to friends and colleagues many times, I believe the eDNT program is one of the finest programs sponsored by Sedona.
In the spirit of “NITA-style” training, the program combines a realistic litigation hypothetical and mock case file that allows participants the ability to practice not one – but multiple – Rule 26(f) meet and confer sessions focused on various aspects of eDiscovery. The two-day program concludes with a mock Rule 16 scheduling conference (presided over by a panel of leading federal and state judges) that is focused on allowing the participants to report upon negotiated discovery details and seek the court’s assistance with issues that could not be resolved.
The need for such training is not just academic. Consider, for example, the recent memorandum and order issued by Judge A. Kathleen Tomlinson of the Eastern District of New York (one of the judicial faculty members for the eDNT program). In Bailey v. Brookdale University Hospital, there was an apparent failure on the part of plaintiff’s counsel to review – let alone negotiate – the terms of a stipulated ESI order that was more appropriately geared toward symmetrical corporate litigation.
As Judge Tomlinson put it, “the scope and parameters of ESI [discovery] ‘should be a party-driven process’” as the parties conduct their Rule 26(f) meet and confer sessions. As such, negotiation and “cooperation in generating and reviewing ESI discovery parameters is therefore of paramount importance since it is the ‘parties, not courts, [who must] make the tough choices [concerning the scope of ESI] that fit the particular discovery needs of a case.’”
In the end, Judge Tomlinson did not abrogate the ESI order that plaintiff’s counsel agreed to. But she did order some novel cost shifting to protect the plaintiff from his counsel’s hasty agreement. Specifically, the Court held that defendants would be responsible for 40% of the cost if they “continue to insist on the production being made to the letter of the requirements/formatting they set forth in the [ESI order].” And plaintiff’s counsel – not plaintiff himself – would bear the 60 percent balance. As the Court put it, “[g]iven the circumstances . . . the Court finds that fairness dictates the Plaintiff’s costs should be borne by Plaintiff’s counsel rather than Plaintiff himself.”
No attorney would willingly choose to be the subject of such a decision and cost-shifting order. And as the Sedona eDNT program makes clear, there is no good reason why they should be. The skills necessary to effectively negotiate discovery parameters, including ESI stipulations and proposed orders, can be studied, taught, and learned. And, as I’ve written in the past, lawyers have an ethical duty of competence to either know (or learn) the nuances of eDiscovery law and practice, or associate with an expert who does.
And so, if you find yourself in uncharted eDiscovery waters, either in the context of a pending Rule 26(f) conference or otherwise, call me. I’d welcome the chance to chat.