FRCP Rule 26 – Duty to Disclose…With a Plan

E-Discovery, Federal Rules of Civil Procedure (FRCP), Legal Hold 0 November 13, 2016 217 Aaron Taylor

While the political arena in particular has provided plenty of entertainment and demands on our attention over the past weeks and months, life has gone on in other areas.  E-Discovery activities continue, and firms, clients and corporations continue to adjust to the updated Federal Rules.  Rule 26(a) seems to have evolved into star status, perhaps rightfully so as it speaks to the meat of litigation…disclosure of information in preparation for the showdown, whether that may be trial, dismissal or settlement.  To get to the show, parties need to know what they have, what their opponent has, and the intent to proceed.  What, you may ask, does this have to do with my first ‘love’, Legal Hold Administration?  As I, and others, have stated before – legal holds do not exist for their own sake, or in a vacuum.  I strongly believe they become the backbone, or foundation for all work that follows; not being an attorney, I would not presume to address courtroom tactics or other issues that belong strictly in the legal realm, but I am very interested in the processes leading up to the actual “lawyer’s drama”.  So, I would like to explore a bit of the requirements within Rule 26(a), and 26(f), and show the threads leading back to that great legal hold document that everyone always creates.

Rule 26(a) is quite specific in addressing requirements for a party’s duty to disclose; since those requirements are well-known to all who operate in this arena, I won’t dwell on them other than to just state abbreviated descriptions of the four requirements for initial disclosure:

  1. Name, contact information of potential information custodians, along with a brief description of possible types of information that each may possess;
  2. Categorization and location of types of information that the disclosing party has in its possession, custody or control that may be used to present the party’s position;
  3. Computation of damages claimed by the disclosing party;
  4. Identification of any applicable insurance agreement that may be utilized to satisfy any settlement or judgment.

That’s all pretty clear and straightforward…if one does not dwell on the work and effort that lies underneath satisfying those requirements.  And this is where the “plan” part of this discussion comes in.  While it is pretty obvious that a party should figure out how they are going to comply with these requirements, Rule 26 provides a stick to urge them to do so…Rule 26(f) is clearly titled “Conference of the Parties; Planning for Discovery” – commonly called the “Meet and Confer”, among other terms; and Rule 26(f)(3) clearly states that a Discovery Plan must be developed to provide information on the Conference results, with go-forward direction for scheduling.  At this point, regarding ‘plans and planning’, I’m going to rely for perspective on the wisdom of a couple of American icons, one an Army General and President and the other possibly the wisest sage of the 20th Century, if not the ages.

First, as the FRCP states, parties must have a plan.  The need for a plan is memorialized in the words of that sage I mentioned:

yogi-berra“If you don’t know where you are going, you’ll end up someplace else.”
Yogi Berra

 

But then, the difference between ‘plans’ and ‘planning are best summed up by the General/President:

December 1944, Probably England, UK --- General Eisenhower Behind the Wheel of a Jeep --- Image by © Hulton-Deutsch Collection/CORBIS

“In preparing for battle I have always found that plans are useless, but planning is indispensable.” 

— Dwight Eisenhower

So, let’s go with planning, and leave the Discovery Plan for another day.  The Practical Law blog by Thomson Reuters provides some excellent articles on preparing for the Meet and Greet Conference – planning for the plan.  I have been somewhat surprised to learn that many in-house attorneys are not necessarily up-to-date on these processes, until I realized that the tasks often fall to external counsel.  However, I believe that internal counsel would be wise to become familiar with the processes if they are not already, as they (or the corporate people they represent) are going to be relied upon to provide much of the information – hence the value again of the legal hold.

Some of these processes (the planning) can be effectively covered in a checklist, with these areas of emphasis:

  • Understand the content of all Federal Rules that apply to the matter;
  • Understand the case – the important issues, who the key custodians are, the client’s position, and the value of the case;
  • Be intimately familiar with the relevant information – what it is, where it’s stored, who’s responsible for it, the technology behind it, and especially today, the social media and (possibly) BYOD involved…and the accessibility of the information;
  • Ensure the validity and integrity of the relevant information – that it is not editable or part of scheduled/auto destruction, and all steps taken to secure the information;
  • Take preemptive steps to “prep” the information, most likely with use of e-discovery vendor tools to identify and purge ‘noise’ and duplicate information – reduce the volume as much as reasonably possible as soon as possible;
  • Consider outside party information that might be relevant and the means to acquire it;
  • Develop and build out your conference strategy.

I’ll end the preparation discussion here without going into the actual Meet and Confer processes.  Now that the planning steps have been outlined, I believe it becomes more obvious how the various parts that make up the legal hold are so applicable here.  If your firm or client has developed a comprehensive and reliable legal hold at the beginning of the matter, you are a long way in building out your preparation for the conference.  Very importantly, you are demonstrating to opposing counsel and (yahoo!) to the court that you have done very comprehensive due diligence for the matter; you are doing all you can to minimize impact on the court’s schedule…there’s not a lot that’s more important, or at least impressive, to the court than the fact that you want to save them time and headaches.

So, follow the sage insight of Yogi and President Eisenhower…a plan may be required, but planning is essential.  Even if you find yourself in a position familiar to me:

“I wasn’t planning to lead, I was standing in the back and then everyone turned around.”
Avery Hiebert

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