It Takes Two to Tango (Or To Hold a Productive 26(f) Meet and Confer)
All civil litigators know Fed. R. Civ. Pro. 26(f), which requires a meet and confer between the parties to sort out issues of ESI production before taking any disputes to the court. But what constitutes a good faith meet and confer? This was one issue in the case Viteri-Butler v. University of California, Case No. CV 12-02651 PJH(KAW), (N.D.Cal. January 7, 2014).
The issue before the court in this employment law case was whether Defendant had complied with a prior order regarding electronic discovery. The basic facts were that Plaintiff and Defendant held a meet and confer on October 25, 2013 in accordance with a discovery order. In that meeting, the parties were unable to come to an agreement on search terms or the ESI custodians to be searched.
After the first meet and confer, Plaintiff and Defendant exchanged emails, attempting to schedule another meeting. While both parties offered dates for the next meetings on multiple occasions, no additional meet and confer conferences were held. In the meantime, Defendant searched the University Chancellor’s personal computers using the terms it had suggested, but which were not mutually agreed upon. Plaintiff sought relief from the court regarding custodians, search terms and ESI.
The court described the parties’ meet and confer efforts as follows: “the papers filed by the parties reveal that they have not cooperated during the discovery process and have done little to attempt to resolve their disputes without court intervention.”
Plaintiff sought the email accounts by the decision-makers, but Defendant objected, noting that such a request was not tied to any tangible discovery request. There were no interrogatories, no requests for admission, deposition requests or other discovery demands regarding the identification of email accounts made before discovery closed. Therefore, the court denied this request.
Plaintiff also sought from Defendant the computer systems used, but Defendant argued it had provided this information when it said all the email was on the college server. However, the court noted that Plaintiff’s request included electronic data and documents in addition to email, so disclosing the email server was an insufficient response. The court also ordered Defendant to disclose all ESI custodians, as well as the systems and devices used for business purposes.
The court found it unacceptable for Defendant to search ESI with terms not agreed-upon by Plaintiff. Therefore, Plaintiff was ordered to provide its combined search terms (no more than 20 individual strings of combined search terms.) Defendant was to use such terms to re-search and produce the ESI, and to provide an updated certification.
Finally, the court considered but denied without prejudice Plaintiff’s request for sanctions. While Plaintiff was free to raise the issue again if warranted, the court chastised both parties for their lack of cooperation in the meet and confer and their failure to hold another session.