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Sometimes it's moreimportant to ask theright questions thanto know the rightanswers, especially when itcomes to nailing down sourcesof electronically storedinformation, preservationefforts and plans for productionin the FRCP Rule 26(f)conference, the so-called"meet and confer."

The federal bench is deadlyserious about meet and confers,and heavy boots havebegun to meet recalcitrantbehinds when Rule 26(f)encounters are perfunctory,drive-by events. Enlightenedjudges see that meet and confersmust evolve into candid,constructive mind melds if weare to take some of the stingand "gotcha" out of e-discovery.Meet and confer requiresintense preparation built on abroad and deep gathering ofdetailed information aboutsystems, applications, users,issues and actions. An houror two of hard work shouldlie behind every minute ofa Rule 26(f) conference. Forget"winging it" on charm orbluster and forget "We'll get back to you on that."

Here are 50 questions of the sort I think shouldbe hashed out in a Rule 26(f) conference. If youthink asking them is challenging, think aboutwhat's required to deliver answers you can certifyin court. It's going to take considerable arm-twistingby the courts to get lawyers and clients to dothis much homework and master a new vocabulary,but, there is no other way.

These 50 aren't all the right questions for you topose to your opponent, but there's a good chancemany of them are ... and a likelihood you'll be inthe hot seat facing them, too.

1. What are the issues in the case?

2. Who are the key players in the case?

3. Who are the persons most knowledgeableabout ESI systems?

4. What events and intervals are relevant?

5. When did preservation duties andprivileges attach?

6. What data are at greatest risk of alteration ordestruction?

7. Are systems slated for replacement ordisposal?

8. What steps have been or will be taken topreserve ESI?

9. What third parties hold information thatmust be preserved, and who will notifythem?

10. What data require forensically soundpreservation?

11. Are there unique chain-of-custody needs tobe met?

12. What metadata are relevant, and how will itbe preserved, extracted and produced?

13. What are the data retention policies andpractices?

14. What are the backup practices, and what tapearchives exist?

15. Are there legacy systems tobe addressed?

16. How will the partieshandle voice mail,instant messaging andother challenging ESI?

17. Is there a preservationduty going forward, andhow will it be met?

18. Is a preservation orprotective order needed?

19. What e-mail applicationsare used currently and inthe relevant past?

20. Are personal e-mailaccounts and computersystems involved?

21. What principal applicationsare used in the business,now and in the past?

22. What electronic formatsare common, and in whatanticipated volumes?

23. Is there a document ormessaging archivalsystem?

24. What relevant databasesexist?

25. Will paper documents bescanned, and if so, at what resolutionand with what OCR andmetadata?

26. What search techniqueswill be used to identifyresponsive orprivileged ESI?

27. If keyword searching is contemplated, can theparties agree on keywords?

28. Can supplementary keyword searches bepursued?

29. How will the contents of databases bediscovered? Queries? Export? Copies? Access?

30. How will de-duplication be handled, and willdata be re-populated for production?

31. What forms of production are offered orsought?

32. Will single- or multipage .tiffs, PDFs or otherimage formats be produced?

33. Will load files accompany document images,and how will they be populated?

34. How will the parties approach file naming,unique identification and Bates numbering?

35. Will there be a need for native file production?Quasi-native production?

36. On what media will ESI bedelivered? Optical disks?External drives? FTP?

37. How will we handle inadvertentproduction of privileged ESI?

38. How will we protect trade secretsand other confidentialinformation in the ESI?

39. Do regulatory prohibitions ondisclosure, foreign privacy laws orexport restrictions apply?

40. How do we resolve questions aboutprintouts before their use indeposition or at trial?

41. How will we handle authenticationof native ESI used in depositionor trial?

42. What ESI will be claimed as notreasonably accessible, and on whatbases?

43. Who will serve as liaisons or coordinators for each side onESI issues?

44. Will technical assistants bepermitted to communicatedirectly?

45. Is there a need for an e-discoveryspecial master?

46. Can any costs be shared or shiftedby agreement?

47. Can cost savings be realized usingshared vendors, repositories orneutral experts?

48. How much time is required toidentify, collect, process, review,redact and produce ESI?

49. How can production be structuredto accommodate depositions anddeadlines?

50. When is the next Rule 26(f)conference (because we need to dothis more than once)?

For alternate views on the EDD topics to be addressed at a Rule 26(f) conference, see Magistrate Judge Paul Grimm's committee's "Suggested Protocol forDiscovery of ESI," andthe U.S.D.C. for the District of Kansas'"Guidelines for Discovery of Electronically Stored Information."

Craig Ball, a member of the editorialadvisory boards of both Law Technology News and Law.comLegal Technology, is a trial lawyer andcomputer forensics/EDD special master,based in Austin, Texas.

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