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Amended Rule 26(d)(2) and the Meet-and-Confer: Benefits for the Early Bird?

In a recent interview with Monica Bay at ILTACON 2015, Judge Andrew Peck wondered aloud whether changes to the Federal Rules, set to go into effect on December 1, will be like the proverbial tree falling in the forest – is there a sound if there’s no one there to listen?

The change prompting the comment was the revision of Rule 26(d)(2), Early Rule 34 Requests, which will allow a party to deliver Rule 34 document requests to another party more than 21 days after that party has been served, but before the Rule 26(f) conference. (Under the current Rule, a party usually may not serve any discovery requests prior to the meet-and-confer, which may not occur until months after a complaint is filed.) This change to the current practice could have a powerful impact on the discovery process, if – and this is a big if – counsel is wise enough to know when to leverage such an opportunity to get their moving ducks in a row before they become sitting ducks.

The intent of the Advisory Committee in proposing this rule was to “facilitate focused discussion during the Rule 26(f) Conference.” The theory is that if parties know the nature of the RFP’s and what documents will likely have to be searched to respond, the meet-and-confer discussion can more readily focus on the “how” as well as the “what,” streamlining what is often a complex, time-consuming and very costly process. Presumably, with knowledge of each side’s initial set of RFPs, there is the possibility that parties might decide to revise broad requests in favor of more narrow (thus reasonable) ones, preventing unnecessary motion practice.

But, this is litigation after all, where contention often trumps cooperation. Even for those who are listening closely, this amendment is controversial for many reasons. There is concern, for example, that early requests may allow more time for responding parties to formulate objections and arguments against production, or that requests served so early will be unhelpful, having not been prepared in light of knowledge gained or agreements reached at the meet-and-confer. Some may also worry that aggressive parties may serve broader requests under this provision than under the current rule, either out of uncertainty or in order to gain leverage at the conference.

Judge Peck, who earlier in the interview had expressed some dismay that counsel appearing before him still had “no clue” about managing eDiscovery effectively or the promise of technology in helping do so, noted that the amended Rule 26(d)(2) could have a significant impact in facilitating discovery – if anyone is willing to pay attention. Right now, he says, the meet-and-confer is done as something of a “drive-by,” where general document requests are considered without benefit of background information so that counsel can essentially check off the eDiscovery box without due consideration of what specific activities may actually result in the desired outcome. With knowledge of what the opposing will request prior to the meet-and-confer, counsel would have the option to engage the thinking of litigation support staff, in-house eDiscovery lawyers, in-house IT personnel, or other experts to find the most practical and cost-effective approach to the discovery process suitable for the matter, especially if it will involve technology.

Considering the ongoing challenge and expense of eDiscovery in today’s complex ESI landscape, refusal to at least consider the potential benefits of early requests and whether they might further their clients’ interests for some matters would be unfortunate (and indeed unwise, if the other side will issue them). Courts are increasingly calling for more cooperation among parties, and the revised Rule is a possible enabler of an earlier and more productive conversation. Assuming, of course, that anyone is listening.


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