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 rulesincluding in the Southern District of New York1 and in New York State2all designed to require lawyers to speak early and in great detail about all aspects of e-discovery and preservation.
Nearly six years later, the question must be asked: How effective has Rule 26(f) been? Are parties meeting and conferring as envisioned in the amended rules or are most meet-and-confers generally ineffective with respect to e-discovery? Is early discussion of e-discovery-related issues helping to avoid issues or leading to more of them? Have well-intentioned efforts to foster “cooperation” and discussion between parties actually been helpful?
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