“When the parties do anticipate disclosure or discovery of electronically stored information [ESI], discussion at the outset may avoid later difficulties or ease their resolution.”
So said the notes of the Advisory Committee that accompanied the e-discovery-related amendments to the Federal Rules of Civil Procedure on Dec. 1, 2006, specifically in reference to Rule 26(f), better known as the “meet-and-confer” rule. And that has been the received wisdom of e-discovery experts and commentators for some time. That central tenet has fueled a series of pilot projects and local rules — including in the Southern District of New York[FOOTNOTE 1] and in New York State[FOOTNOTE 2] — all designed to require lawyers to speak early and in great detail about all aspects of e-discovery and preservation.
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