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How to Use the Rule 26(f) Conference to Avoid Data Dumps

By Kelly A. Frye – August 20, 2015

Back in the days of paper discovery—when productions came in bankers’ boxes and document reviews involved paper cuts—litigators would attempt to try to gain a tactical advantage by “burying” opponents under mountains of paper. The modern version of this litigation tactic is the “data dump.” Data dumps involve responding to discovery requests or subpoenas by unnecessarily transmitting large quantities of electronically stored information (ESI), much of which is irrelevant, often without any explanation or organization. This practice is even more problematic than its old school counterpart because of the time and cost associated with e-discovery. If ESI lacks organization—that is, if it is produced in a confusing array of formats or in obsolete formats, without proper indexing, or contains file types different than what was requested—the data may be impossible to electronically organize, let alone search or review. Structured data, like the data from databases, can be dumped in an unstructured, unusable state without the program they were created with or detailed information on how they were created and stored. Moreover, massive quantities of data drive up the costs of review, are time consuming, and may impede litigation efforts by obscuring the real issues.

While the temptation to drown adversaries in an avalanche of useless data can be high, courts have uniformly disapproved such gamesmanship. For example, in SEC v. Collins & Aikman Corp., No. 07 Civ. 2419, 2009 WL 94311 (S.D.N.Y. Jan. 13, 2009), the Securities and Exchange Commission (SEC) dumped 1.7 million records, comprising 10.6 million pages, on the defendant and told it to search them for relevant materials, asserting that it did not have a way to collect documents relating specifically to the subjects relevant to the case. In reviewing the SEC’s actions, the court stated that Rule 34 of the Federal Rules of Civil Procedure prohibits “simply dumping large quantities of unrequested materials onto the discovering party along with the items actually sought.” Id. at *4. The court also found that expecting the defendant to do the plaintiff’s work, which would have taken a substantial amount of time and money, constituted “undue hardship by any definition.” Id. at *5. In the end, the court ordered the SEC to perform its e-discovery duties in accordance with the rules.

Tips for Avoiding Data Dumps and Using the Rule
Despite cases like SEC, data dumps are not uncommon and are sometimes the result of ignorance, or lack of resources, and not strategy. To successfully manage discovery and avoid falling victim to a data dump, attorneys must be proactive, educated, and organized. One of the best tools to accomplish this is the discovery conference required by Rule 26(f) of the Federal Rules of Civil Procedure. Although many attorneys approach the Rule 26(f) conference as a task to be crossed off the list, it provides the perfect opportunity for the parties to discuss, and agree upon, a discovery plan that works for both sides.

Under Rule 26(f), unless the court orders otherwise, the parties must meet “as soon as practicable” to discuss issues relating to the discovery and pretrial process. The rule specifically requires the parties to address the proper timing and scope of discovery in light of the type and complexity of the dispute, to discuss issues relating to document preservation, and to attempt to reach an agreement on how they will go about collecting and producing ESI.

Unfortunately, many attorneys fail to effectively use the Rule 26(f) conference because they do not know the questions to ask or the issues that can, and should, be addressed. Used correctly, a Rule 26(f) conference can be an effective tool, giving attorneys the opportunity to level or set the playing field in advance, negotiate key terms up front, and specifically identify what they do and do not want from the other side. Generally, these terms are included in the Rule 26(f) report as an ESI or discovery protocol.

The key elements of an ESI protocol are discussed in detail below. Coverage of these issues will go a long way toward minimizing the likelihood of being the victim of a data dump.

Define the scope of ESI relevant to the lawsuit. Before counsel can agree on how to manage ESI, the parties must ensure that everyone is on the same page and speaking the same language. This involves having a candid conversation about the nature of the ESI likely to be involved in the action. Doing so allows the parties to understand the types of data implicated by the allegations, the key persons or “custodians” who might control or have knowledge of such information, and the location of the relevant ESI. For instance, the parties should discuss whether the type of information sought is likely to be maintained by a finite number of custodians (as opposed to interspersed throughout an organization); whether relevant ESI is stored on custodians’ individual devices, including computers, tablets, phones, etc. (as opposed to on a central network); and what specialized servers or cloud repositories might be implicated.

The parties can use this information to come to a comprehensive agreement concerning the scope of ESI relevant to the lawsuit. This is the time to take certain types of data off the table so there is no disagreement later. For instance, is this a case in which information contained on mobile devices—which remain costly to image and process—will be necessary? If not, consider reaching an agreement to carve these devices out of discovery. Similarly, identify what data are not “reasonably accessible” (e.g., disaster recovery backup tapes) and agree that they will not be collected. In addition to eliminating headaches, these proactive agreements can limit the scope of the collection and production and save much time and effort weeding through nonresponsive data.

It should be noted that these conversations require knowledge about the client’s data storage and technical infrastructure. If you don’t feel like you have the requisite knowledge, ask your client to identify someone from its information technology department who can assist you. Alternatively, seek assistance from someone within your firm who can provide guidance on the technical issues.

Identify agreed-upon filtering methodologies. After ESI is collected, there can be an overwhelming amount of information that is potentially related to the lawsuit and thus subject to discovery. Frequently, this information needs to be culled down to a manageable data set for counsel’s review. The Rule 26(f) conference is an excellent setting for counsel to candidly discuss and agree on initial filtering criteria, such as keywords, date ranges, and file types that can be used to identify relevant material and exclude information that is not likely to be useful.

Counsel should reach a firm agreement on this subject, as opposed to an agreement to agree. Don’t be afraid to involve someone with technical knowledge and get into the weeds. If you cannot agree on search methodologies, such issues should be raised with the court during the scheduling conference required under Rule 16 of the Federal Rules of Civil Procedure. Establishing a clear understanding on search methodologies as early as possible avoids a later problem where one side objects and claims that his or her opponent failed to use reasonable methods to locate responsive documents within the larger data set. It also minimizes any potential risk that a party may later be forced to expand the scope of the search terms and expend hours and valuable resources on a process that could have been avoided by resolving the issue at the outset of the litigation. In other words, not only can you exert control over the types of materials you will receive, you can also improve the defensibility of your own process.

Attorneys sometimes believe that these types of decisions are work product that should be protected from disclosure. While this may have been the case prior to e-discovery becoming the norm, it is not today. Courts encourage parties to work out these issues in advance to avoid burdening judges with costly problems that could have, and should have been, avoided by discussing them early in the process.

Develop a plan for processing. You should also be prepared to discuss and develop a plan for processing data. For instance, will de-duplication be global or by custodian? Will family relationships be preserved? How about metadata? What types of metadata will be included? What, if any, batch coding will be included in the production? Will paper materials be produced in the same manner as ESI? These types of technical decisions will have the combined effect of reducing the amount of data you receive and allowing you to organize and search what you do get.

Identify the format of production. Most discovery is conducted electronically these days, but if you don’t ask, you run the risk of receiving a production in paper form. Or, just as bad, gigantic PDF files that cannot be searched. To avoid this, discuss the anticipated volume of the production and decide on a format for production. The Federal Rules of Civil Procedure allow the requesting party to determine the format. It is counsel’s obligation, however, to request up front that ESI be produced in a specific format. This includes requesting that the information be produced in a specific file type that may be loaded into a review platform.

Options for forms of production include native forms, near-native forms, imaged production (PDF or, more commonly, TIFF images accompanied by load files containing searchable text and metadata), and paper productions. In many situations, counsel should consider requesting more than one type of data, tailoring their decision based on the type of record being requested. For example, TIFF and load files work best for items requiring redaction and for scans of paper records, while native forms are best suited to electronic presentations and spreadsheets.

Acknowledge the need for and agree to rolling productions. Depending on the size and significance of a matter, it may not be realistic to expect a party to collect information from numerous custodians, review the information for responsiveness, review the information for privilege, and produce the information in a useable format in the short period allowed by the rules governing initial disclosures and discovery in general. It is also unrealistic to think that the party receiving documents will have the time and resources to review all of the ESI immediately.

To avoid these practical difficulties, consider agreeing during the conference to rolling productions of ESI so that the producing party can gather, cull, review, and produce responsive documents while the other side simultaneously reviews a previously produced batch of materials. This will give the other side adequate time to review and prepare its production, reducing the likelihood that it will resort to data dumping based on time constraints.

Agree upon review requirements. Next, determine how the data will be reviewed after they are collected. While it may seem obvious, you want to make sure that you do not receive every document that was collected regardless of its relation to the case. The parties can agree that the responding party will make reasonable efforts to review the search results for responsiveness prior to producing materials that contain a search term. The parties can also agree that the responding party is not required to produce nonresponsive documents simply because they contain one of the agreed-upon search terms; similarly, the parties can agree that the presence of a search term alone does not make a document responsive. Doing so will help facilitate a more pointed review and save much time and effort reviewing nonresponsive data.

The parties should also discuss and agree upon how the review will be conducted. This will include deciding whether the review will be done by a person or by computer, how redactions or other special handling will be performed, and whether and to what extent the parties agree to permit claw-backs in the event that privileged documents are erroneously produced.

While there will always be unscrupulous counsel who use data dumps as leverage, taking the time to conduct a thorough Rule 26(f) conference and digging into the issues related to ESI, can help ameliorate data dumps caused by a lack of knowledge or failure to think through the issues. And, at the end of the day, the time it takes to conduct a comprehensive Rule 26(f) conference pales in comparison with the time it takes to wade through the massive amounts of data you might receive if you don’t.

Keywords: litigation, business torts, unfair competition, e-discovery, data dumps, Rule 26(f), ESI, electronically stored information

Kelly A. Frye is an associate in the Hartford, Connecticut, office of Robinson+Cole LLP.

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