Parties Ordered to Cooperate in Good Faith and Develop a “Discovery Plan”

In U.S. v. Alliance Park LLC, 2024 WL 2230041 (S.D.Ga. May 15, 2024), in a “recently filed” case, “the Court issues the following Order to provide instructions to the parties regarding their initial discovery obligations and to institute initial case management proceedings.”

The court wrote: “During the Rule 26(f) Conference, the parties shall discuss the nature and bases of their claims and defenses, the possibilities for a prompt settlement or resolution of the case, and the scope, type, manner, and costs of discovery. The discussion of claims and defenses shall be a substantive, meaningful discussion. In addressing settlement or early resolution of the case, counsel shall not only explore the feasibility of alternative dispute resolution between themselves, but shall also discuss the potential for settlement and alternative dispute resolution with their clients as well. The parties shall also make or arrange for the disclosures required by Rule 26(a)(l) and develop their joint proposed scheduling/discovery plan.”

It added: “These are only the minimum requirements for the meeting. The Court orders the parties to have a comprehensive discussion and to approach the meeting in good faith and with cooperation.”

Instead of an “ESI Protocol,” the court ordered the parties to submit a “discovery plan.” For a discussion of the differences, please see “ESI Protocol” v. “Discovery Plan”  (Jan. 2, 2024).

It added: “A party who cannot gain the cooperation of any other party in preparing the Rule 26(f) Report shall advise the Court of the other party’s failure to cooperate prior to the Report filing deadline.”

As to ESI, it ordered:

During the Rule 26(f) Conference, the parties shall specifically discuss the preservation and production of electronically stored information. That discussion shall include:

1. What electronic sources and records the party maintains and how the party’s electronic data and records are stored;
2. The electronic sources and records each party will search, and the method of search that will be used (including any search terms);
3. The difficulty/ease of retrieving various data and information, and who will bear the costs of retrieval and production;
4. The format and media agreed to by the parties for the production of electronically stored information (including any production of meta-data) as well as agreed procedures for such production;
5. The persons most familiar with the party’s computer and electronic storage system and the persons who are responsible for preservation of electronically stored information, including any third parties who may have access to or control over any such information;
6. Whether reasonable measures have been implemented to preserve data including the party’s document retention/destruction policy, whether the party has placed a “litigation hold” preventing destruction of potentially relevant records, and whether the issuance of a preservation order is required; and
7. The extent to which search and disclosure of electronic data should be limited to that which is available in the normal course of business, or otherwise, and the anticipated scope, cost, and time required for search and disclosure of such information beyond that which is available in the normal course of business.

As to privilege, it ordered:

During the Rule 26(f) Conference, the parties shall discuss specifically the discovery and production of privileged, protected, and/or confidential information. That discussion shall include:

1. What methods the parties will employ to assert claims of privilege, protection, or confidentiality, including the form and substance of any privilege logs;
2. Whether the parties anticipate discovery issues or challenges arising from non-disclosure of allegedly privileged, protected, or confidential information;
3. Whether reasonable date ranges should be established after which privilege log entries for privileged, protected, or confidential information need not be made;
4. Whether the parties will request a protective order to prevent the further release of information disclosed in discovery; and
5. As contemplated by Rule 502(e) of the Federal Rules of Evidence, whether there is a need for the terms of any agreement regarding disclosure of privileged attorney-party communications or confidential work product to be incorporated into a court order, and whether the parties will seek court approval of any such agreement.