COMMENTARY: Meet and confer--The meat and potatoes

By Mark St. Peter It is not exactly breaking news that we now live in a digital world. The degree to which electronic files and digital documents have become the rule, rather than the exception (by some estimates, as much as 97 percent of all information today is electronic), has led to some fundamental and dramatic changes in the way information is stored, processed, and handled. Unsurprisingly, those changes have had far-reaching legal, technical and logistical implications for our courtrooms, and for the cases that are adjudicated within them. One of the most important changes took place in 2006, when Federal statutes were changed to reflect the realities and rapidly evolving digital evidence landscape. The Federal Rules of Civil Procedure (FRCP) now outline specific policies and procedures for the maintenance, preservation and discovery of electronically stored information (ESI). Specifically, Rule 26(f) addresses the "meet and confer," a mandatory pretrial meeting between litigants. The statute requires both sides of a pending dispute to use the meet and confer to discuss the terms of evidence collection and maintenance, and to develop a proposed discovery plan to address the discovery, presentation and preservation of ESI. Around the country, a number of state courts are adapting similar policies based on the Federal model. For attorneys and other legal professionals, this change has had profound implications for their practice. The meet and confer is an enormously important event, essentially laying out a road map with regard to exchanging and introducing relevant electronic information throughout the course of the litigation and the trial. And, like any road map, when it is poorly drawn, you are liable to get lost. Failing to appropriately cover your ESI bases can have dire implications for your case as you move forward. Once the terms of discovery process have been established, it is difficult or impossible to address deficiencies or to go back and attempt to recover information that is outside of the agreed-upon boundaries. As a result, knowing what you are doing ahead of time is critically important. While the details of every case are different, and every discovery process carries its own unique signature of technical and evidentiary complexity, there are certain meet and confer fundamentals that apply to virtually every case. Here is a basic checklist of key questions that every attorney needs to be able to ask and answer prior to entering into a meet and confer: Did you get the professionals involved early? Technical issues surrounding ESI can be complex. Every client's system is different, and attorneys frequently do not have the day to day experience necessary to wrestle with those complexities. Digital evidence experts can help with everything from forensic imaging of hard drives and identification of lost data, to detailed analyses of internet activity, recovery of critical files, and management of collected or produced electronic documents. But while many attorneys understand the value of experienced electronic discovery and computer forensics professionals, they might not appreciate the urgency involved. Email systems may be set to auto-delete after a certain timeframe, storage tapes can get recycled, and data can be lost; sometimes permanently. To help you comply with your duties to preserve evidence and to avoid claims of spoliation, your ESI consultant can help you identify which processes need to be suspended and why. Digital and electronic information changes quickly, and the professionals know where to look and what to look for. Get them involved as early as possible before the meet and confer, in fact, as soon as you are aware litigation is upon you. Are you sharing knowledge appropriately? For the ESI specialist to dispense valuable advice, they will require a general working outline of what the case is about so they know what to look for. Experienced vendors can save time and money and provide a more focused level of service if they can avoid sifting through large amounts of extraneous or unnecessary information and hone in on data that is truly relevant and important. Before the meet and confer even takes place, take the time to educate the ESI professionals working on your behalf. What is the case about? This may seem like an obvious point, but it is one that is overlooked surprisingly often. It is not necessary--and sometimes not legal--to get into the intimate, confidential details of a client's case, but making sure that all participants in the meet and confer and the subsequent digital evidence discovery process are on the same page with regard to key participants, goals and events. It is also important to avoid getting lost in the technical and procedural details and lose sight of the big picture. Periodically step back and remind yourself and your team of what the case is about, and what the end goals of the ESI process should be. Who are the key players? When it comes to determining what information is important to your case, try not to make assumptions about who is important. It might not just be the CEO of the company whose emails need to be reviewed. What about administrative assistants and secretarial staff? What about third parties and nonparties (for instance: records storage vendors or off-site storage co-locations or accountants)? What are the key events in the case timeline? Make sure that all participants in the discovery process have a sophisticated understanding of key dates or events before the meet and confer takes place. This helps to establish what date filters to place on collected data and avoid processing and searching information that is unnecessary or outside of the relevant time frame. Once you know when, you can more accurately ask what: using the meet and confer to gather information about what systems are in place and how the data is stored. What are the relevant time points as regards collecting or preserving ESI? Your vendor will need to know when the duty to preserve information begins in order to help you identify and quickly halt automated processes like tape rotation and email auto-pruning. It is also often helpful to know up front if the collection requirements will be as of one fixed date or part of a series of ongoing gatherings of data. What ESI needs special attention due to exposure to alteration or destruction? While all ESI is inherently vulnerable to one degree or another, there are certain circumstances where the integrity of important information can be especially precarious. Backup tapes are subject to disposal or recycling, individual PCs or laptops are often reassigned to different employees or staff turnover, and e-mail systems are frequently set up with automatic deletion and/or compression routines. Try to use the meet and confer to structure ESI discovery in such a way that it prioritizes data preservation and recovery from those sources. What collection methods are best suited to each type of ESI? Different types of ESI call for different collection techniques, ranging from "forensically sound" bit-stream images to straight file copies, and the right technique can depend on other factors such as whether or not the metadata needs to remain unchanged. Work closely with a digital evidence services provider or an electronic discovery and computer forensics expert to determine what collection methods are best suited to the circumstances of the case at hand. Do you know the right technical questions to ask? One of the challenges of ESI discovery is the way in which the unique technical challenges of computer forensics and digital evidence retrieval and management intersect with the complexities of digital case law. You need to know what questions to ask with regard to not only legal, but also technical details. Work with your digital evidence specialist to come up with a list of key questions like: How will the produced information be formatted? What specific metadata fields will be produced? Can the parties agree on a list of search key words up front? How will produced ESI be tied to its corresponding request for production? What cross references will be provided? The above checklist is by no means intended to be an exhaustive or all-encompassing resource; every meet and confer can and should have its own case-specific agenda. But for attorneys who wish to navigate the digital landscape of today's world with confidence, and to head into every case with the assurance that they have all the relevant information they will need to make (or break!) their case, this list is a great place to start. ---------------- Mark St. Peter is managing director of Southfield-based Computing Source. To learn more about Computing Source, please visit computingsource.com. Published: Fri, Dec 2, 2011