Category: E-Discovery and Legal Holds

Meet and Confer

Also known as: Meet-and-Confer, Meet and Confer Conference

Simply put

Meet and confer is a requirement in many legal systems for opposing lawyers to communicate directly and try to resolve or narrow their disputes before bringing them to a court. The aim is to save the parties time and money and to reduce the burden on courts by encouraging the parties to settle disagreements themselves where possible. In matters involving electronic information, these discussions often address how such information will be handled during a case.

Formal definition

Meet and confer refers to a procedural obligation, typically imposed by court rules in many jurisdictions, under which attorneys must communicate the basis for their disagreement on an issue and make a good-faith effort to resolve or narrow it before seeking court intervention. The stated purpose is to conserve party resources and promote judicial economy by encouraging pre-motion or pre-hearing resolution of disputes. In the discovery context, meet and confer sessions frequently involve establishing protocols for the handling of electronically stored information (ESI), which is a concern for records and information governance professionals supporting litigation. The specific requirements, including what constitutes a sufficient good-faith effort and whether communication must occur in person, depend on the applicable jurisdiction and rules; some sources note that these requirements are not uniform even within a single jurisdiction, which can affect their practical effectiveness.

Why it matters

Meet and confer requirements matter to records and information governance professionals because the discussions frequently determine how electronically stored information (ESI) will be handled during a case. Decisions reached in these sessions can shape the scope of what must be identified, preserved, and produced, which in turn affects the organizational resources devoted to a matter. Where governance professionals support litigation, the protocols established here can influence how records held under existing retention and classification schemes are located and made available.

The stated purpose of these requirements is to save the parties time and money and to increase judicial economy by encouraging parties to resolve disputes themselves before seeking court intervention. For organizations, this means that a well-prepared meet and confer can narrow disagreements early, potentially reducing the burden of contested discovery motions. Conversely, entering such discussions without a clear understanding of one's own information holdings can leave a party at a disadvantage when negotiating ESI scope and protocols.

It is worth noting that the practical effectiveness of meet and confer obligations is not guaranteed. Some sources observe that these requirements are not uniform even within a single jurisdiction, and that non-uniformity can hinder the goal of streamlining litigation. Records professionals should therefore treat the specifics of any given requirement as jurisdiction- and rule-dependent rather than assuming a single, consistent standard applies.

Who it's relevant to

Litigation Support and eDiscovery Teams

Those supporting litigation may be directly involved in or asked to inform ESI protocol discussions during meet and confer sessions. Their understanding of where relevant electronically stored information resides and how it is managed can help shape realistic and defensible protocols for handling that information during a case.

Records and Information Governance Professionals

Governance professionals are relevant because meet and confer discussions in the discovery context frequently address how records and other electronically stored information will be handled. Their knowledge of retention, classification, and the organization's information holdings can support attorneys in making good-faith, well-informed representations about what exists and how it can be produced.

In-House and Outside Counsel

Attorneys bear the direct procedural obligation to communicate the basis for their disagreement and make a good-faith effort to resolve or narrow disputes before seeking court intervention. Because the specific requirements depend on jurisdiction and applicable rules, counsel must confirm what those rules demand, including whether in-person communication is expected for a given dispute.

Compliance and Legal Operations Leads

Those responsible for managing litigation readiness and resources have an interest in meet and confer because the process is intended to conserve party resources and promote judicial economy. Effective participation can help narrow disputes early, though the non-uniformity of requirements across and within jurisdictions means the practical benefit is not guaranteed and warrants careful preparation.

Inside Meet and Confer

Pre-discovery conference

A meet and confer is typically a conference between opposing parties, often required or encouraged early in litigation, at which the parties discuss the scope, format, and logistics of discovery, including the handling of electronically stored information and records. The specific requirements and timing depend on the jurisdiction and the governing rules of procedure.

Scope of electronically stored information (ESI)

Discussions commonly address what categories of records and data are potentially relevant, where they reside, and how they will be identified. In many jurisdictions the parties are expected to reach a shared understanding of the sources of potentially responsive records, though the exact obligations vary by court and case.

Preservation and legal hold

Parties often discuss steps taken to preserve potentially relevant records, including the scope of any legal hold. A legal hold is the suspension of ordinary disposition to retain records that may be relevant to anticipated or pending litigation; note that disposition may include transfer or destruction, and a hold typically overrides scheduled destruction. Preservation obligations depend on jurisdiction and the circumstances of the matter.

Format and production protocols

The conference may cover the form or format in which records will be produced, such as native files, images, or other agreed formats, along with associated metadata. Agreements on production format are intended to promote usability and can help preserve the integrity of records exchanged.

Cost and proportionality considerations

Parties frequently raise issues of the burden, cost, and proportionality of retrieving and reviewing records, particularly where sources are voluminous or difficult to access. How proportionality is weighed depends on the applicable rules and the court's discretion.

Dispute narrowing and process agreements

A purpose of the conference is often to narrow disputes and reach agreements on discovery procedures, search methods, and timelines, potentially reducing the need for later court intervention. The enforceability and documentation of such agreements depend on the governing procedural framework.

Common questions

Answers to the questions practitioners most commonly ask about Meet and Confer.

Is the meet and confer process the same thing as settlement negotiation?

No. Although both involve discussion between opposing parties, the meet and confer process typically concerns how discovery will be conducted rather than whether or how to resolve the underlying dispute. In many jurisdictions it focuses on procedural matters such as the scope of discoverable material, the format of production, preservation obligations, and the handling of electronically stored information. Settlement negotiation addresses the merits of the case. The two can occur in parallel, but conflating them risks treating a procedural obligation as optional or as a bargaining exercise over substantive claims.

Does meet and confer only involve lawyers, with no role for records or information governance staff?

That is a common misconception. While counsel typically leads and represents the party's position, the discussions often turn on matters that records and information governance professionals are best placed to inform, such as where relevant records reside, retention and disposition status, system capabilities, and the feasibility and cost of preserving or producing particular material. Depending on organizational structure and the demands of the matter, records managers, IT staff, and information governance leads may need to support counsel so that representations made during the process are accurate and defensible.

What information should an organization gather before entering a meet and confer discussion?

Preparation typically benefits from an understanding of where potentially relevant records are held, across which systems and custodians, and in what formats. It is often useful to know the retention and disposition status of those records, whether any legal hold has been applied, and the practical and cost implications of preserving, collecting, or producing the material. The specific scope depends on the matter and the applicable jurisdiction, so organizations generally tailor this groundwork to the issues expected to arise.

How can records and information governance teams support counsel during this process?

Support often takes the form of providing accurate information about recordkeeping systems, custodians, formats, and the status of retention, disposition, and any applicable legal hold. Teams may help assess the burden associated with particular preservation or production requests and identify practical constraints. Because representations made during the process may be relied upon, accuracy and the ability to substantiate statements are generally important. The precise role depends on organizational policy and the requirements of the jurisdiction and forum.

How should decisions and agreements reached during meet and confer be documented?

Organizations often maintain a clear internal record of what was discussed, what was agreed, and the basis for representations made, since these may later need to be demonstrated. Depending on the forum and jurisdiction, outcomes may be reduced to a written stipulation or order. As a matter of good recordkeeping, the documentation itself typically warrants treatment as a record, with appropriate attention to its authenticity, integrity, and usability. Specific documentation requirements vary by jurisdiction and organizational policy.

What are common points of friction to anticipate in these discussions?

Friction frequently arises over the scope of preservation and production, the format in which material should be produced, the treatment of electronically stored information, and the burden and cost associated with particular requests. Disagreements may also concern the status and accessibility of records, including whether material was subject to routine disposition before any obligation to preserve arose. Anticipating these areas, and being able to describe recordkeeping practices accurately, can help parties address them constructively. The issues that predominate depend on the matter, jurisdiction, and the systems involved.

Common misconceptions

A meet and confer is a purely legal exercise with no relevance to records management.

While the meet and confer occurs within a litigation context, its subject matter frequently depends on records management practices, such as the ability to identify record sources, apply and document legal holds, and describe retention and disposition schedules. Records and information governance professionals are often called upon to inform or support these discussions.

Meet and confer requirements are the same everywhere.

The existence, timing, and scope of meet and confer obligations depend on the jurisdiction, court, and sometimes the sector. Some procedural regimes mandate such conferences while others encourage or omit them, so requirements should not be assumed to be universal.

Placing records under a legal hold discussed at a meet and confer is the same as archiving them.

A legal hold suspends the ordinary disposition of potentially relevant records to preserve them for litigation, whereas archiving generally refers to retaining records of continuing value under a records management program. A hold is typically temporary and matter-specific, and its purpose differs from long-term retention or preservation decisions.

Best practices

Involve records management and information governance staff early so that discussions about record sources, retention schedules, and disposition practices are informed by accurate knowledge of the organization's holdings.

Confirm that legal holds have been issued and documented for potentially relevant records before the conference, recognizing that a hold typically overrides scheduled disposition and destruction.

Maintain an up-to-date understanding of where records and electronically stored information reside so that the scope of potentially responsive material can be described reliably.

Clarify and agree on production formats and associated metadata in a way that supports the usability and integrity of the records exchanged.

Raise burden, cost, and proportionality considerations candidly, supported by realistic assessments of the effort required to retrieve and review records from various sources.

Verify the specific meet and confer requirements applicable to the relevant jurisdiction and court rather than assuming a single universal standard, and document any agreements reached.