The recent changes to the Federal Rules of Civil Procedure require litigants to have early discussions to address issues relating to the disclosure and production of electronically stored information. In the last several articles I have used preparing for the “meet-and-confer” as a model for understanding and addressing your case’s e-discovery issues. Issues not settled through the meet-and-confer will go to the court at the pretrial conference or after.
Parties at the meet-and-confer must address four issues: 1) mandatory disclosure of all ESI; 2) what will not be produced, or produced only if the requesting party bears some or all of the cost of production, because the ESI is not “reasonably accessible because of undue burden or cost”; 3) the form of production; and, 4) “claw back” agreements to provide for the return of privileged documents inadvertently disclosed.
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