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The Discovery Meet And Confer: Questions to Consider from Both sides

Discovery, the process of obtaining evidence for your case, should be the result of the parties’ cooperation. To that end, I recommend a meet-and-confer early in the case before money and time has been spent unnecessarily.

Before the meeting, I send the following 25 questions to the other side, and I consider them myself.

1. What are the disputed issues in the case?

2. Who are the witnesses or document custodians who might have knowledge of the case?

3. Do the parties anticipate discovery of Electronically Stored Information (“ESI”), including metadata?

4. Who is the best person to explain the parties’ Information Technology Systems?

5. When did the events involved in the lawsuit occur?

6. What electronic programs did the parties use during the relevant time period?

7. What types of information do the parties expect to exchange? Paper? Emails? Databases? Spreadsheets? Voicemail? Instant messaging? Security tapes or other video?

8. Are personal e-mail accounts in play?

9. What are the parties’ data retention policies and practices, and how are those policies and practices implemented?

10. What is the anticipated volume of paper and electronically stored information?

11. Will paper documents be scanned? If so, at what resolution, will they be bates-labeled, or processed for OCR (optical character recognition)? Who will pay for the scanning?

12. What steps have been taken to preserve ESI?

13. Do third-parties have discoverable information about the case? If so, who should contact that party to ensure preservation of evidence?

14. When did preservation duties arise and how far into the future will they exist?

15. When did various privileges come into play, and who are the potential people creating privileged material?

16. Do the parties need a protective order?

17. How will the parties handle inadvertent disclosure of privileged material?

18. If the volume is large, how will the parties identify responsive and privileged material?

19. Can the parties agree to keyword searches? If so, how will those words be identified? Will there be an opportunity after the initial searching to add or modify the key word searches?

20. How will de-duplication be handled?

21. What format will the data take upon production? Will load files accompany the data; if so, what format is required?

22. Can the parties agree to share the cost of the production? A special master? The same e-discovery vendor?

23. How will the parties handle evidentiary issues at depositions and trial? Authenticity issues raised by the chain of custody? Hearsay?

24. Who from each team will be designated as the liaison for e-discovery issues? Will technical personnel be allowed to directly communicate with each other?

25. What is the timetable for collection and production in light of the need for depositions, expert designations, and trial?

With an understanding of these questions, the lawyers are better equipped to manage costs and to avoid disputes along the way.