This meet and confer post from Helen Geib, QDiscovery General Counsel, was originally published on LinkedIn here. Please visit the original piece to leave any comments.
Every case will benefit from an effective discovery conference under Rule 26(f) or comparable state rule. That was the key takeaway from the recent Indianapolis Bar Association CLE “eDiscovery in Insurance Coverage Litigation.” The presentation, a panel discussion presented by the IndyBar’s eDiscovery, Information Governance & Cybersecurity Section, also offered specific practice pointers for making the most of the meet and confer.
The panelists provided three distinct viewpoints on eDiscovery practice in the context of insurance coverage cases. Ryan Leagre of Plews Shadley Racher & Braun represents policy holders, Eric McNamar of Lewis Wagner represents insurance companies and Ray Biederman of Mattingly Burke Cohen & Biederman has a practice focus of eDiscovery. Meghan Ruesch of Lewis Wagner was the moderator.
Topics for the Rule 26(f) conference include ESI sources, custodians, date ranges and production format specifications. It’s also the first opportunity to discuss scope of discovery, including limits on preservation and collection. The meet and confer lays the groundwork for the eDiscovery project.
Everyone agreed that the conference is the start of a dialogue, not an end point. Many issues, especially limits on the scope of discovery, will require further investigation and negotiation. In some cases, parties will ultimately decide to seek relief from the court. Because the overall eDiscovery process may be lengthy, it’s all the more important to initiate it early in the case.
The panelists raised two points of particular relevance in insurance coverage cases: asymmetrical discovery and staging discovery to reduce costs and streamline the process.
Asymmetrical discovery occurs when one party must contend with significant data volumes while the other party has minimal ESI.
Leagre gave the example of an environmental claim based on a corporate policyholder’s business activity over a 40 year time period. In that instance, the policyholder will benefit from raising cost and burden issues at the Rule 26(f) conference. The policyholder can build on the conference by requesting cost-sharing or seeking relief from the court under a proportionality analysis.
McNamar offered a counter-example of asymmetrical discovery cutting the other direction. In personal injury cases, it is the insurance company that has large data volumes from the claim file and related communications; again, the timeframe potentially extends back years or even decades. Much of that data is likely to be held on backup tapes or in legacy systems running on obsolete hardware and software. Biederman followed up by recommending that parties in this situation look to the Zubulake factors for cost-sharing and cost-shifting based on inaccessibility.
Staging Discovery to Reduce Costs and Streamline Process
The second point was staging discovery to reduce costs and streamline the process. Many insurance coverage cases stage discovery based on the issues in the case. To be effective, staging must be decided on and planned at the outset, making it an ideal topic for the Rule 26(f) conference.
Preparing Effectively for a Discovery Conference
The panelists offered three main suggestions to prepare for the conference. First, meet with your client’s IT staff and a few key custodians. Educate yourself about IT systems, custodians, known technical issues, date ranges, costs and other standard meet and confer topics.
Second, meet with business contacts at the client and review key documents to educate yourself about the substantive issues. The meet and confer shouldn’t be only about discovery. It’s also a chance to talk about the case, identify areas of agreement as well as disagreement and perhaps begin settlement discussions.
Finally, prepare for the conference by compiling detailed notes to substantiate your claims and arguments. Courts don’t look kindly on conclusory assertions that discovery will be expensive or difficult. For example, proportionality factors are very fact-specific; they include hard costs for eDiscovery services, burden due to business disruption, importance of the ESI in light of the issues and the value of the case. Case law and the panelists’ anecdotal experience both confirm that judges want to see discovery motions backed up by hard data. As Biederman succinctly put it, you need to “show your work.”
The concluding recommendation for the Rule 26(f) conference was to meet in person. Telephone conferences come in a distant second and conferring by email is inefficient at best. The opinion was unanimous that face to face meetings are far more efficient and productive.
The panelists built on an overview of the Rule 26(f) conference with informative examples drawn from insurance coverage litigation. Raising eDiscovery issues early – and learning about your case to prepare for the conference – is valuable for all cases, whatever the subject matter.
Helen Geib is General Counsel and Practice Support Consultant for QDiscovery. Prior to joining QDiscovery, Helen practiced law in the intellectual property litigation department of Barnes and Thornburg’s Indianapolis office where her responsibilities included managing large scale discovery and motion practice. She brings that experience and perspective to her work as an eDiscovery consultant. She also provides trial consulting services in civil and criminal cases. Helen has published articles on topics in eDiscovery and trial technology. She is a member of the bar of the State of Indiana and the US District Court for the Southern District of Indiana and a registered patent attorney.
This post is for general informational and educational purposes only. It is not intended as legal advice or to substitute for legal counsel, and does not create an attorney-client privilege.