The "meet and confer" conference for electronic discovery has moved from a nice-to-have to a requirement under the amended Federal Rules of Civil Procedure. A major component of preparing for a 26(f) meet and confer conference is a "map" of the litigant's ESI content: where it is, what it is, how to preserve it, how to collect it, etc. This defensive requirement can be turned into a strategic advantage when counsel is well informed as to the location and nature of ESI, as well as the costs necessary to produce it.

• Emmerick v. S&K Famous Brands, Inc., 2007 U.S. Dist. LEXIS 59147 (E.D. Tenn. Aug. 6, 2007)
• O’Bar v. Lowe’s Home Centers, Inc., 2007 WL 1299180 (W.D. N.C. May 2, 2007).

How Fios can Help

Fios helps clients prepare for the FRCP Rule 26(f) conference by working with both the corporate client and the supporting law firm to understand the following:

• Preservation Processes - How were litigation holds enforced and documented? Have preservation obligations for the matter been met? What voluntary disclosures are required as part of the 26(f)?
• Content Repository Analysis - What data repositories contain potentially responsive electronically stored information (ESI)? How reasonably accessible are they? What systems are in place for identifying potentially relevant content?
• Total Cost of e-Discovery Analysis - What is the likely total cost of e-discovery for the matter? What resources will be required to respond to potential discovery requests?
• Accessibility Analysis - Where does ESI exist within the organization? How readily accessible is the data for discovery? What are the areas of greatest potential undue burden or cost? What is the basis for arguments, if available, to claim inaccessibility due to undue burden or cost?
• Collection Methodologies - What are the available collection protocols as they relate to existing computer systems? Which approaches are best, both in terms of cost and defensibility, for the matter at hand? What documentation exists to demonstrate reasonable design of the process?
• Production Format Recommendations - What are the different methods of production that are likely to be pertinent to the case? Which ones can the company best support?

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