The ESI Meet-and-Confer Checklist: What to Settle Before Discovery Starts

An ESI meet and confer goes well when you walk in knowing your own client’s data and walk out with every agreement in writing. Most problems that surface months later, such as a production in an unusable format, a custodian nobody preserved, or an unplanned privilege waiver, trace back to a topic that was skipped or left vague at this conference.

This checklist is built for teams without an eDiscovery department: what Rule 26(f) requires, the prep work to do before the call, a topic-by-topic agenda, specific terms for text and chat data, and how to lock everything in afterward. It describes the Federal Rules of Civil Procedure and Evidence. Many state courts, including many family courts, have no formal Rule 26(f) process, but the same topics decide whether discovery runs smoothly there too, so adapt the list to your court’s rules and standing orders.

What does Rule 26(f) require you to discuss about ESI?

Rule 26(f) requires the parties to confer, discuss preservation of discoverable information, and develop a proposed discovery plan. That plan must state the parties’ views on several topics, two of which are specific to electronic information.

• Rule 26(f)(3)(C): any issues about disclosure, discovery or preservation of ESI, including the form or forms in which it should be produced.
• Rule 26(f)(3)(D): any issues about claims of privilege or work-product protection, including whether to ask the court to include a post-production procedure in an order under Federal Rule of Evidence 502.
• Timing: the conference should happen as soon as practicable and at least 21 days before a scheduling conference is held or a scheduling order is due, with a written report within 14 days after it.
• Scheduling order: Rule 16(b)(3)(B) lets the court’s scheduling order address ESI disclosure, discovery and preservation, and include the parties’ privilege agreements.

What should you prepare before the conference?

Prepare a data map of your own client first. You cannot negotiate scope, format or cost sensibly if you don’t know what your side has, where it lives, and what it would take to produce.

• List likely custodians and, for each, the devices, email accounts, messaging apps, cloud storage and social accounts they use.
• Confirm what preservation steps have been taken and when, including any hold notice; see litigation hold letters.
• Identify sources that may not be reasonably accessible because of undue burden or cost under Rule 26(b)(2)(B), such as old phones, legacy backups or deactivated accounts.
• Know your production capability: what formats you can generate, whether you can apply Bates numbers, and how you handle attachments.
• Estimate volume and cost for the main sources so proportionality arguments rest on numbers, not adjectives.
• Decide your opening positions on date ranges, custodians and format, plus where you can give ground.

The ESI meet-and-confer checklist

Work through these topics in order. Record each as agreed, disputed, or deferred, with who owes what by when.

Preservation

• Custodians and sources each side has preserved, and the date preservation began.
• Auto-delete settings on phones and messaging apps, and whether they have been turned off.
• Devices that have been replaced, reset or lost since the dispute arose.
• Sources neither side will preserve because they are duplicative or inaccessible.

Scope

• Custodians, with a process for adding more later.
• Date ranges, overall and by issue if they differ.
• Data sources in scope: email, text and chat, social media, cloud files, financial accounts.
• Phasing: which sources go first, and what triggers the next phase.

Search and review

• Whether search terms will be used, how they will be tested, and whether hit counts will be shared.
• Whether any technology-assisted review or other filtering will be used, and how it will be described.
• Deduplication and email threading: whether they are allowed and how suppressed items are disclosed.

Form of production

• Format for each data type: searchable PDF, images with load files, or native. See production formats compared.
• Metadata fields to include, and the time zone for all date fields.
• Bates numbering format and prefixes, and how attachments and family relationships are kept together.
• Whether hash values will accompany productions so each side can verify files.

Privilege

• Privilege log format, timing, and whether categorical logging or exclusion of post-filing counsel communications is acceptable.
• Clawback procedure, aligned with Rule 26(b)(5)(B).
• A proposed order under Federal Rule of Evidence 502(d).

Cost and disputes

• Cost allocation for sources that are expensive to collect or process.
• A dispute process: written notice, a deadline to confer, then motion practice.

How do you handle text messages and chat apps at the meet and confer?

Treat message data as its own category with its own terms. Generic ESI language written for email does not answer the questions that cause message disputes.

Messages present problems email does not. Conversations span months, so producing “responsive messages” one at a time strips the context around them. Each phone displays times in its own local time zone. Reactions, edits, deleted-message notices and attachments export differently depending on the device and tool. The same conversation often exists on both parties’ phones, so deduplication rules matter; see deduplication and threading for message reviews.

Adjust the context window, a calendar day here, to fit the case. Some teams prefer a fixed number of surrounding messages; what matters is that both sides apply the same rule.

Which ESI issues do small-firm teams most often miss?

The gaps that cause trouble are usually not exotic. They are ordinary sources nobody named out loud, so nobody preserved or requested them.

• Cloud backups versus the device. A phone may have been replaced, but its messages may survive in a cloud backup or on a synced tablet or laptop. Ask about both.
• Disappearing-message settings. Some apps let users set messages to expire. Ask whether these settings are in use and whether they will be disabled going forward.
• Shared family accounts and devices. A family tablet or a shared cloud account can hold both parties’ data. Agree on who collects it and how the other side’s private material is handled.
• Self-collection. If clients will export their own messages or photos, agree on the method and on disclosing it, so the collection isn’t attacked later as incomplete.
• Photo and video metadata. Screenshots and images forwarded through messaging apps can lose original metadata. Agree to produce originals where date or location matters.
• Social media downloads. Most platforms offer an account data download. Decide whether it’s in scope and in what format.

What should you do after the conference?

Put it in writing the same week. Memories diverge fast, and the version recorded first tends to become the reference point.

1. Send a confirming letter. List each agreement, each disputed item with both positions, and each deferred item with its follow-up date.
2. Draft the joint report. Carry the ESI terms into the Rule 26(f) report so they can be adopted in the scheduling order.
3. Consider proposed ESI and 502(d) orders. Under Rule 502(e), a private agreement binds only the parties unless it is incorporated into a court order.
4. Calendar every commitment. Include preservation confirmations, search-term exchanges, sample productions and privilege log deadlines.
5. Brief your client. Explain what they must preserve and produce, in plain terms, consistent with your communication duties under Model Rule 1.4.

What happens if the other side won’t engage?

Document the effort and keep proposing specifics. A court evaluating a later dispute may look at who tried to resolve it.

Send the agenda in advance, propose concrete terms in writing, and offer more than one time to confer. If the other side doesn’t respond, a clear paper trail supports the good-faith conferral certification Rule 37(a)(1) requires before a motion to compel, and local rules often add their own conferral requirements. Keep the tone neutral; your letters may become exhibits.

Which terms to accept, and which disputes are worth taking to the court, remain strategic calls for the attorney on the matter. A disciplined checklist ensures those calls get made deliberately rather than by omission.