The Meet & Confer Condition Precedent

In the absence of any actual discovery dispute, I cannot see any benefit from my creating an Electronic Discovery Order for the parties from whole cloth, when they know better than I what information they have and what information they need.

United States District Court Judge Catherine Perry

Process Controls Int’l, Inc. v. Emerson Process Mgmt., 2011 U.S. Dist. LEXIS 49876 at *29 (E.D. Mo. May 10, 2011)

In a business dispute involving false advertising, defamation, and tortious interference claims, the Plaintiff brought a motion to enter an Electronic Discovery Order. The Court denied the order, because the parties had not yet held a Rule 26(f) meet and confer on electronically stored information. Process Controls Int’l, Inc. v. Emerson Process Mgmt., 2011 U.S. Dist. LEXIS 49876, 27-29 (E.D. Mo. May 10, 2011).

The Plaintiffs argued that the electronically stored information in the case would be “voluminous,” thus an order was “necessary to organize and accommodate that discovery.” Process Controls Int’l, Inc. at *28.

The Defendants countered no order was necessarily, because the Defendants claimed that there were no discovery disputes and they were willing produce all of their electronically stored information. Moreover, they argued the proposed order was “unduly burdensome.” Process Controls Int’l, Inc. at *28.

The Court denied the order with the ominous phrase “at this time.” Process Controls Int’l, Inc. at *28.

The Court reasoned from the different moving papers the parties had not met and conferred in good faith, pursuant to Federal Rule of Civil Procedure Rule 26(f). In the words of the Court, Rule 26(f) “anticipates and encourages parties’ good faith attempts to come to their own agreements for the discovery of electronic data.” Id.

Instead of issuing an electronic discovery order, the Court ordered the parties to meet and confer in person and “make all reasonable attempts to resolve this issue on their own.” Process Controls Int’l, Inc. at *29.

The Court agreed that the discovery would be great, however, that was not a reason to enter a discovery order before the parties held a Rule 26(f) meet and confer. Process Controls Int’l, Inc. at *29.

Bow Tie Thoughts

The concept of parties being “frenemies” is alien to most litigators. Attorneys are used to an adversarial process and the idea of cooperating over discovery is difficult for many long time litigators.

With that said, a Rule 26(f) conference is not a beach bond fire with singing songs about metadata production. Attorneys must vindicate their client’s case, set rational collection procedures, propose form of production protocols that expedite the efficient review of discovery, address issues of privilege, and many other litigation concerns.

More importantly, courts want to see parties attempt to resolve their disputes without opinions being issued at every turn. As United States District Court Judge Catherine Perry highlighted in this case, there is little benefit (and probably risk) to a court blindly issuing a discovery order without a dispute.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.