Mock Rule 26(f) Conference of Parties Posted Online

A mock Rule 26(f) conference of parties has been posted online through the Technology Committee of the Litigation Section of the Maryland State Bar Association. Although much has been written about Rule 26(f) conferences, see, e.g., Chapter 19 in M. Berman, C. Barton, and The Hon. P. Grimm, eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA Jul. 2011), there is little demonstrative guidance.

The Rule 26(f) conference of parties has been described as the lynchpin of the e-discovery rules. See  Craig  Ball, Musings on Meet and Confer (2007). In fact, “[i]f there is a master blueprint to e-discovery under the Federal Rules, it lies in amended Rule 26(f) and the accompanying Advisory Committee Notes.” S. Gensler, “Some Thoughts on the Lawyer’s E-volving Duties in Discovery,” 36 N.Ky.L.Rev. 521, 522 (2009). “Perhaps no change in the Federal Rules is more dramatic than the one associated with the changes to the meet and confer requirement of Rule 26(f).” Moze Cowper and John Rosenthal, “Not Your Mother’s Rule 26(f) Conference Anymore,” 8 Sed. Conf. L. J. 261, 261 (2007). In fact, “[i]f there is a master blueprint to e-discovery under the Federal Rules, it lies in amended Rule 26(f) and the accompanying Advisory Committee Notes.”

This may be because “[t]he overriding theme of the recent amendments to the discovery rules has been open and forthright sharing of information by all parties to a case with the aim of expediting case progress, minimizing burden and expense, and removing contentiousness as much as practicable.”  Board of Regents of Univ. of Nebraska v. BASF Corp., 2007 WL 3342423, at *5 (D.Neb. 2007); Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 361 n. 3 (D.Md. 2008) (citing BASF and other decisions).

As the Court in Hopson v. Mayor & City Coun. of Baltimore, 232 F.R.D. 228, 245 (D.M. 2005), wrote that “[i]t cannot be emphasized enough that the goal of the meeting to discuss discovery is to reach an agreement that then can be proposed to the court.”

The Technology Committee of the Maryland State Bar Association presented a mock Rule 26(f) Conference of the Parties at the June 2011 Annual Meeting. The Conference was based on a hypothetical student exercise that I use as a teaching exercise in my ESI seminars at the University of Maryland and University of Baltimore Schools of Law.

The mock conference is of particular interest because forensic experts participated. “Just as Georges Clemenceau said that war is too important to be left to the generals, attorneys frequently cannot ‘go it alone,’ and it is important to have a multidisciplinary approach to a conference of the parties.” M. Berman, C. Barton, and The Hon. P. Grimm, eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA Jul. 2011), 422.

The mock exercise was conducted in two parts. In the first part, after an introduction and setting the stage for those who are not familiar with ESI, two experienced attorneys, supported by their forensic experts and a legal assistant, met with their “client” to prepare for the conference. After a “critique” of that discussion, those attorneys presented their discovery plan to two opposing attorneys and their forensic expert in the Rule 26(f) conference.

The fact pattern involved an asymmetric, high-stakes commercial dispute between ABC, a “mom and pop” company with antiquated systems, but important ESI, which was suing XYZ, a high-tech manufacturing company, with sophisticated “24/7” systems. XYZ had shipped a critical medical device that turned out to be the wrong size, to the wrong location, proximately causing a patient’s death. The issues included a missing e-mail and a decade-long, electronic course of conduct.

The video of the mock conference begins with my introduction and can be found in its entirety through the Maryland State Bar Association web site. After following the link pasted above, it is necessary to click the link titled “Nuts & Bolts of E-Discovery,” register with host site for Gore Brothers Reporting, and type “edisco” in the “promo code” box in order to access the video. The video lasts approximately 2-½ hours.

Participants included the committee chair, W. Lawrence Wescott, II, Esq., and David Kinzer, Esq., Ober Kaler; Francis R. Laws, Esq., Thomas & Libowitz, P.A.; J. Mark Coulson, Esq., Miles & Stockbridge, P.C.; Howard Feldman, Esq., Whiteford Taylor Preston, LLP; Michael MacWilliams, Esq., Venable LLP; Marc Hirschfeld, Esq., Precision Legal Services; James Shoemaker, Miles & Stockbridge; and, Lynda Anderson, Lex On Demand.