Black Hat Series: Discovery Do’s and Don’ts (Part 2)
This content was originally published as content for a CLE given for the Institute of Continuing Legal Education in Georgia, entitled Litigating the Plaintiff's Employment Law Case on September 23, 2016. This is an excerpt from that material.
In Part 1 of this series we explored three of the biggest issues we confront on a regular basis talking with clients and prospective clients. In Part 2 we begin to look at the importance of a proper meet and confer.
Do insist on a meet and confer.
If there is another more-frequently violated Rule of Civil Procedure than Rule 26(f), I am hard pressed to think of it (except possibly 26(g), but that’s another blog). The Rule is not optional, nor does it make suggestions about what should it happen. It states plainly that the parties must confer and discuss discovery related issues. So why does it happen in such a small percentage of cases?
Some of the blame lies with the plaintiff’s bar who, with little ESI of their own, may feel that the discovery planning issue is to their adversary's benefit only. But the plaintiff’s lawyer who knows how to get maximum value out of the case understands the importance of forcing this meeting, and knowing what they want in discovery (or at least what forms of data are important). The meet and confer, though not an adversarial event, is a great chance for a skilled advocate to learn more about the adversary and prepare for discovery effectively.
And your opponent? Well, considering how long it usually takes defense firms to draft a response to a complaint (Big Law Secret: it’s generally not because an in-depth investigation is occurring!), do you really think they have had an in-depth discussion with their Fortune 100 client? A client, by the way, who typically has a virtually endless list of litigation matters pending across the country? Simply put, they are not prepared for these types of conferences, and are praying that you want to avoid it as much as they do.
Don’t fall for it. Just don’t. Mutual disregard of 26(f) sets the stage for sloppy discovery which benefits your Big Law opponent far greater than you. Force the meet and confer, even be willing to take the matter to the Court. I have personally seen this tactic work wonders to get opposing counsel to put your case near the top of their to do list.
Bonus tip: Once you have scheduled a meet and confer, don’t waste it! Do thoroughly prepare for the meet and confer. After all, you’re the one who forced it, so let’s get the most from it. Being supremely prepared may mean that you should consider 3rd party expert participation (which we do for clients all the time), either to help navigate some of the technical aspects, or to simply alert you that your adversary’s assertion regarding some nuanced detail is not accurate. This conference sets the tone for the entire case and can be a gold mine for you. Invest in it wisely and reap great rewards in information, access, and timing. Use it to show the other side that you believe in your case and are prepared to go the distance.
The reality is that the meet and confer process is a mindset that will show your adversary you mean business. The more prepared in discovery you are, the more likely that your adversary will move your case to the top of his/her mind (and hopefully by extension, his/her client's mind). When that happens, settlement value increases. Moreover, in the event you cannot resolve the case, this focus in discovery will help you get the data you need, in the form you need it.
We work with our clients to get the data in a searchable format. Flat images or mere "searchable PDFs" just don't cut it any more. The meet and confer is your best protection against defense counsel with poor discovery hygiene. If you need help preparing for an upcoming meet and confer, get in touch with us!