The “meet and confer” requirement imposed by the Federal Rules of Civil Procedure (or, more specifically, FRCP 26(f)) requires that the parties to litigation must, “as soon as practicable” meet with one another to discuss a variety of issues set out in FRCP 26(f)(2). That rule includes the following:
…the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan.
This means that the parties must meet and confer about, among other things, creating a realistic ediscovery plan.
Meet and Confer: A Cooperative Attitude
It’s important for both lawyers and unrepresented litigants to understand that Rule 26(f) meet and confer sessions are not intended to be adversarial events. In other words, you don’t meet and confer in order to fight with the other side. Instead, a meet and confer session is intended to be a cooperative enterprise in which you agree to the terms by which the coming litigation will unfold.
Meet and confer sessions are the ideal opportunities to lay out the groundwork for e-discovery. What material you’ll be seeking, what format you’d prefer it be in, and what preservation efforts you consider to be reasonable and necessary are just a few of the issues you can clarify during the meeting.
Now, a cooperative attitude doesn’t entail that you must agree to everything opposing counsel or the other party wants. Their expectations or requests might be unreasonable, impracticable, or even nonsensical. In these cases, it’s important to clearly indicate your opposition to these sorts of requests in order to establish the confines of any necessary litigation (like a contested motion for discovery, for example).
Cooperation Gone Wrong: Facebook
An example of what not to do is contained in the case of In re Facebook PPC Advertising Litigation. In that case, Facebook refused to agree to an ESI Protocol (a written agreement about how to conduct e-discovery) because it would “[force] the parties to try to anticipate and address all potential issues on the form of electronic production would likely have the result of frustrating and slowing down the discovery process.”
The court rejected Facebook’s argument and ordered the company to meet and confer with the plaintiffs and establish an ESI protocol. The court found that “the clear thrust of the discovery-related rules, case law, and commentary suggests that “communication among counsel is crucial to a successful electronic discovery process.” ”
Reasonableness as a Meet and Confer Touchstone
To facilitate the spirit of cooperation that is intended to drive meet and confer sessions, consider tempering your requests during the meeting and limiting them to what is reasonable and necessary in your case. It’s difficult to cooperate with a party that makes impracticable and unreasonable demands that are unsupported by reference to the caselaw.
For example, if your case involves the alleged wrongful dismissal of a single employee, asking for the records of each and every person in the company’s employ is not likely to lead to a positive outcome. While you should certainly ask for what you’re entitled to and need, a meet and confer session is not an opportunity to push your luck and go further than what the law says you can get.
At the same time, being reasonable about the opposing party’s requests, suggestions, and demands is likely to pay dividends as the litigation unfolds. Refraining from forcing the other side to litigate just to get access to material you should have provided in the first place is a surefire way to be on the wrong end of a costs order or discovery sanction.
Failing Entirely: Hunter v. Moran
Of course, the ultimate failure of reasonableness and cooperation is the failure to meet and confer at all. In the civil rights case of Hunter v. Moran, the defendants moved to compel answers to interrogatories they had sent the plaintiff. The court refused to rule on the motion, however, finding that the defendant had failed to confer with the plaintiff about the interrogatories prior to filing the motion.
In other words, the court refused to rule on the motion until the defendant had at least shared a telephone call with the plaintiff to try and work out the issue.
While some lawyers and unrepresented litigants appear to treat the meet and confer requirements of FRCP 26(f) as a hurdle to be cleared or an obstacle to be overcome, the requirement actually represents an opportunity to reduce the costs, complexity, and length of litigation. Properly viewed, meeting and conferring with the other side is an efficient way to set out the terms and boundaries of the coming litigation.
For that reason, litigants and lawyers should take full advantage of the meet and confer rule. By entering into it in a spirit of reasonable cooperation they can maximize their odds of obtaining an agreeable outcome.
Of course, even the most reasonable and cooperative among us will occasionally meet and confer with an entirely unreasonable and uncooperative opponent. That can’t be avoided. In those cases, litigation is the only recourse. But for everyone else, the collegial touch is the best way to go.
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