Two recent orders remind us of the importance of following best practices for Rule 26 (f) conference, which can help streamline discovery and avoid unnecessary, costly disputes.
In Hauck v. Walker, Plaintiff Christine Hauck had moved to strike Defendants Garry Lucas and Phillip Walker’s motion compelling her to respond to certain discovery requests and requesting sanctions. Hauk asserted that they failed to confer with her regarding the merits of the motion before filing the motion.
Per the order, the Court disagreed with the Plaintiff because defense counsel certified in the motion that he attempted to meet and confer via an email to Hauck, asking for a conference on discovery issues. Hauck, said the Court, failed to either recognize Defendants’ reference to the email or the email itself.
“Despite Hauck’s repeated assertions that Defendants failed to meet and confer, the Court finds that Defendants have submitted sufficient evidence to establish an attempt to meet and confer.”
Hauck’s motion to strike was denied. The Defendants were also able to successfully prove that the Plaintiff had repeatedly failed to comply with her discovery obligations. The Court awarded them $1,000 in reasonable expenses “in light of Hauck’s continued defiance and refusal to even meet and confer to resolve these issues without formal motions.”
In Kimble v. Specialized Loan Servicing LLC, Plaintiffs Zarah Kimble, Seher Basak and Sarah Sakinah Groza O’Loughlin moved to compel Defendant Specialized Loan Servicing LLC to produce all documents and information in response to Plaintiffs’ First Set of Requests for Production and First Set of Interrogatories. The Defendant responded that “Plaintiffs are not entitled to class discovery at this stage of the case.” In fact, per the order, the Defendant’s primary objection to all of Plaintiffs’ discovery requests was the Plaintiffs’ alleged lack of standing.
“The Court finds Defendant’s refusal to provide discovery on this basis to be without merit and an inappropriate effort to stymie Plaintiffs’ efforts to comply with the Court’s scheduling order.”
In addition to this decision, the court also ordered both sides to meet and confer and agree on search terms within a certain time frame.
Later on in the order, the Court also found that the requested documents were not only relevant at that stage, but also that Defendant’s general objections were inappropriate and without support, and its refusal to provide any responsive discovery was improper and without merit.
A Law Technology Today article on how to use Rule 26(f) to cut discovery costs and disputes discusses important reminders for counsel.
“The key to a successful meet-and-confer is preparation. Being well informed about your case — including your ESI — and having defined goals for the conference are critical to making it a productive discussion and not an empty formality.”
Specifically with regard to preservation, for example, narrowing the scope reduces time and cost. Law Technology Today further recommends:
- limiting the subject matter at issue
- delineating the relevant time frame
- identifying non-relevant or duplicative data sources
- excluding “inaccessible” sources like disaster recovery backup systems
- capping/limiting the custodian list
- making or discussing specific objections to preservation notices at the conference
The meet-and-confer can also lay the groundwork for a protective order motion if the two parties can’t agree on scope. It’s also a good opportunity to discuss privilege logs, both traditional and non-traditional, as well as the form of production and the case schedule. Law Technology Today further advises to “be alert to unrealistic production deadlines, especially start and end dates” and “agree on a procedure for requesting deadline extensions or schedule modifications.”
In addition to thorough preparation, a detailed followup that lists “points of agreement, points of disagreement and action items” is necessary. By following Rule 26 best practices, both parties can experience a more streamlined, cost-effective discovery process.