Early Meeting To Discuss ESI

Posted by Gregg Mayer on Monday, March 3rd, 2008   

One of the more important steps during the preliminary stages of litigation is the Rule 26(f) meeting – otherwise known as the “initial conference” of the parties.

Since the December 2006 e-Discovery amendments to the Federal Rules of Civil Procedure, one topic to be discussed at these meetings is where and how much electronically stored information (“ESI”) is relevant to the litigation, among other ESI issues.

One recent article explains:

Parties (and their lawyers) will need to prepare for this conference, including obtaining an understanding of the client’s computer systems, which means additional costs as well as the associated burdens on already over-taxed IT personnel. Even worse, parties can no longer hide behind objections, as they may have done before the new rules went into effect, in response to Rule 30(b)(6) depositions or interrogatories directed at ESI.

The buzz word commonly used to describe the initial case management conference under the new rules is “transparency.” Companies are expected to openly disclose information about their computer systems, warts and all. They will need to be prepared to discuss their various backup systems and to identify what data is backed up, how they are backed up, and the periods for which they have retained backup tapes.

Even more frightening, companies may need to explain what they have been doing to preserve potentially relevant information up to and prior to the conference. Courts often find that the duty to preserve is triggered well in advance of the filing of the lawsuit.

Specifically, a CIO needs to have a clear and efficient policy for a company’s ESI archiving to prepare for litigation. A good way to do this is form an e-Discovery team, bringing together IT professionals and the legal team.

Read the full article from The New York Law Journal.  

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