Practice Management

Discovery: ESI and Rule 26(f)'s meet-and-confer requirement.

By Dan Hull

Pittsburgh gets hip, smart and ready. If you view Western Pennsylvania as an obtuse, unoriginal and sleepy legal backwater--and a struggling ex-steel region where execs of a tiny insular medieval master class drool on their shirts each day for two hours before "hitting the links"--please think again. Do see "In re ESI: Local Rules Enhance Value of Rule 26(f) 'Meet & Confer' " by Joy Flowers Conti, a well-regarded U.S. district court judge, and Pittsburgh lawyer Richard Lettieri. The article appeared in the ABA's The Judges? Journal, Volume 49, Number 2, Spring 2010.

Ironically, most commercial trial lawyers who focus on federal courts know much less about electronically-stored information ("ESI"--routine e-mail, mainly) than they should. Whether you do litigation or transactional work, and especially if your client reps are in-house people or GCs, you'd better know lots. Judge Conti, and Lettieri, who spent nearly two decades with Big Blue, do know more. Many of the lessons of the Conti-Lettieri article, we might add, are preventative and preemptive for non-litigators.

Again, get your transactional people involved. All business lawyers need to get smarter on (1) ESI, (2) Rule 26, Fed. R. Civ. (a short but storied and common sense rule governing discovery generally) and (3) all federal local rules that tweak Rule 26. All three. It's an important area whether you defend cases against corporations or not. If you represent plaintiffs, of course, you will read it with interest to further your nefarious agendas against Corporate Personhood, Motherhood, Good Crops, and Stock Options. We are watching you guys.

Finally, you may want to take time out to learn about ESI and discovery. If you do, see along with the Conti-Lettieri piece: (1) Fed. R. Civ. P. 26--"Duty to Disclose; General Provisions Governing Discovery", (2) its 45 years of Advisory Committee Notes, and (3) the fine work and thinking reflected, and discussed in the article, in W.D. Pa. Local Rule 26.2, which you can pick up here and after the page jump.

Full post as published by What About Clients? on August 03, 2010 (boomark / email).