The new rules are designed to force both parties to limit the amount of documents and scope to the essential parts that each party want to address.
As these new rules are adopted by both Federal rules as well as state civil procedure rule changes, Clearwell has some of these covered already.
In any action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences
Sections of rule 26 mandates that the parties confur at least 21 days before a scheduling conference is set; in order to discuss the nature and basis of their claims and defenses.
These discussions include aspects of the discoverable information, including all ESI. Some aspects to be discussed include issues of preserving discoverable information, as well as the overview of the discovery plan. Both sides should agree on the scope of the discovery, including timing, form and requirements for the disclosures under Rule 26(a). Noting when the discovery should be completed, agreements on privilege as well as forms of production. Discussion also revolve around repositories which should be excluded or create a burden for discovery, including the topic of cost sharing.
Clearwell provides for rule 26(c)(1)(b) by providing the up-front pre-collection culling, as well as defined timelines for ingestion from the initial focused repositories. This allows for the early discussions of cost sharing, if required.
Rule 34 is also very important as organizations continue to utilize cloud offerings. In some cases, these repositories are not in the care and control of a party and they may have to compel a "nonparty" to produce documents. The built in data mapping and custodian identifications enable organizations to ensure that they not only issue the preservation hold notices, they also come prepared to the conferences and are able to identify repositories which may not be discovered in the timelines. FRCP Rule 26(d)(1), "Timing and Sequence of Discovery"
Remember the clock starts ticking when "litigation is reasonably anticipated”.
Other parts in the series will discuss rule 16 and 34.
