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ESI: The Future is Now (page3)

ESI Meet and Confer Duties

In the ESI world, a required meet and confer has almost no relationship to the "paper world" meet and confer.

In paper world discovery, a typical dispute involves reciprocal document demands. The client is generally sent the document demand by counsel. Counsel asks of the client or the client's designee to assemble the responsive documents. The results of that effort are sorted, categorized, and collated by the attorney. The end result is a submission of relevant responsive documents sent to opposing counsel along with a myriad of objections. Meet and confers over discovery disputes are usually accomplished by the exchange of a few letters or perhaps even a phone call. In the end, the disputed areas simply "go away" or become the subject of a motion to compel.

An ESI mandated meet and confer has little resemblance to the procedure set forth above. Counsel is required to meet early and often to do the following:
  1. Attempt to create a joint ESI retention and discovery plan.
  2. Decide whether or not to utilize the services of a joint vendor/technical consultant.
  3. Supervise and control every aspect of document production and preservation.

The meet and confer personnel should consist of:

  1. Counsel.
  2. All experts and key IT personnel.
  3. The parties.
  4. Any other person or entity required in the production or preservation process.

It is not unusual to have a meet and confer in which there are 10 or more participants.

The meet and confer is designed to result in a plan that:

  1. Preserves ESI.
  2. Effectively searches the ESI databases using appropriate key word searches and other searching programs and applications consisting of, but not limited to, TAR (Targeted Assistant Review) and Predicative Coding (an interaction between application software and a human being).
  3. Causes a production of relevant ESI, in at least in its native format, with all metadata attached.
  4. Reduces the costs of the production.

The Model Act demands the cooperation of counsel. Failure to cooperate can result in severe sanctions that are personal to counsel. The court is encouraged by the Act to resolve disputes involving the meet and confer or any other matter on an ex parte basis in order to facilitate the sharing of relevant ESI. Uniquely, under this system, the client has liability that is secondary to his or her attorney. Generally, the attorney is sanctioned for a failure in the implementation of the process, not the client.