Changing the Game for Rule 26(f) Meet and Confer Efforts with Pre-Collection Early Data Assessment

One of the most important provisions of the Federal Rules of Civil Procedure that impact eDiscovery is Rule 26(f), which requires the parties’ counsel to “meet and confer” in Meet and Conferadvance of the pre-trial scheduling conference on key discovery matters, including the preservation, disclosure and exchange of potentially relevant electronically stored information (ESI).  With the risks and costs associated with eDiscovery, this early meeting of counsel is a critically important means to manage and control the cost of eDiscovery, and to prevent the failure to preserve relevant ESI.

A key authority on the Rule 26(f) eDiscovery topics to be addressed is the “Suggested Protocol for Discovery of Electronically Stored Information,” provided by Magistrate Judge Paul W. Grimm and his joint bar-court committee. Under Section 8 of the Model Protocol, the topics to be discussed at the Rule 26(f) conference include: “Search methodologies for retrieving or reviewing ESI such as identification of the systems to be searched;” and “the use of key word searches, with an agreement on the words or terms to be searched” and “limitations on the time frame of ESI to be searched; limitations on the fields or document types to be searched.”

However, Rule 26(f) conferences occur early on in the litigation, typically within weeks of the case’s filing. As such, attorneys representing enterprises are essentially flying blind at this pre-collection stage, without any real visibility into the potentially relevant ESI across an organization. This is especially true in regard to unstructured, distributed data, which is invariably the majority of ESI that is ultimately collected in a given matter.

Ideally, an effective early data assessment (EDA) capability can enable counsel to set reasonable discovery limits and ultimately process, host, review and produce less ESI.  Counsel can further use EDA to gather key information, develop a litigation budget, and better manage litigation deadlines. EDA also can foster cooperation and proportionality in discovery by informing the parties early in the process about where relevant ESI is located and what ESI is significant to the case.

The problem is any keyword protocols are mostly guesswork at the early stage of litigation, as under current eDiscovery practices, the costly and time consuming step of actual data collection must occur before pre-processing EDA can take place. When you hear eDiscovery practitioners talk about EDA, they are invariably speaking of a post-collection, pre-review process. But without requisite pre-collection visibility into distributed ESI, counsel typically resort to directing broad collection efforts, resulting in much greater costs, burden and delays.

What is clearly needed is the ability to perform pre-collection early data assessment, instead of EDA after the costly, time consuming and disruptive collection phase.  X1 Distributed Discovery (X1DD) offers a game-changing new approach to the traditional eDiscovery model.  X1DD enables enterprises to quickly and easily search across thousands of distributed endpoints from a central location.  This allows organizations to easily perform unified complex searches across content, metadata, or both and obtain full results in minutes, enabling true pre-collection EDA with live keyword analysis and distributed processing and collection in parallel at the custodian level. This dramatically shortens the identification/collection process by weeks if not months, curtails processing and review costs from not over-collecting data, and provides confidence to the legal team with a highly transparent, consistent and systemized process.

A recent webinar featuring Duff & Phelps Managing Director and 20-year eDiscovery and computer forensics veteran Erik Laykin included a live demonstration of X1DD searching across 20 distributed endpoints in a manner of seconds. In reaction to this demonstration, Laykin commented “the ability to instantaneously search for keywords across the enterprise for a small or large group of custodians is in its own right a killer application. This particular feature gives you instantaneous answers to one of the key questions folks have been wrestling with for quite some time.”

You can now view a recording of last month’s webinar: eDiscovery Collection: Existing Challenges and a Game Changing Solution, which features an overview of the existing broken state of enterprise eDiscovery collection, culminating with a demonstration of X1 Distributed Discovery. The recorded demo will help illustrate how pre-collection EDA can greatly strengthen counsel’s approach to eDiscovery collection and meet and confer processes.

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Filed under eDiscovery, Preservation & Collection

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