The recent changes to the Federal Rules of Civil Procedure require litigants to have early discussions to address issues relating to the disclosure and production of electronically stored information (ESI). In the last several articles I have used preparing for the “meet and confer” as a model for understanding and addressing your case’s e-discovery issues.
Parties at the meet and confer must address four issues: 1) mandatory disclosure of all ESI under Rule 26(a)(1)(B); 2) what will not be produced, or produced only if the requesting party bears some or all of the cost of production, because the ESI is not “reasonably accessible because of undue burden or cost” under Rule 26(b)(2)(B); 3) the form of production under Rule 34(b); and, 4) “claw back” agreements under Rule 26(b)(5) to provide for the return of privileged documents inadvertently disclosed.
