FRCP Rule 26 – Duty to Disclose…With a Plan
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:
- Name, contact information of potential information custodians, along with a brief description of possible types of information that each may possess;
- 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;
- Computation of damages claimed by the disclosing party;
- 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:
“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:
“I wasn’t planning to lead, I was standing in the back and then everyone turned around.”
― Avery Hiebert