In July, recent changes to Minnesota’s Rules of Civil Procedure take effect. These rules made significant changes to Rule 1 and Rule 26, pushing for proportionality, enhanced disclosure and greater collaboration. Brendan Kenny at Law Technology News has a useful update.

The addition to Rule 1 is particularly important:

It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues. The factors to be considered by the court in making a proportionality assessment include, without limitation: needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation.

In far too many cases, litigants are sucked into a discovery process that is inappropriate for the needs of the case. The additions to the rule, in 26.06 (which closely mirrors the FRCP), also push the parties to have a discovery conference and set forward an actual discovery plan. Failing to promptly meet and confer can lead to all sorts of discovery headaches, missed opportunities and needless expense.

The 26.06(c) discovery plan requirements serve as a good framework for considering and resolving the important issues:

  1. what changes should be made in the timing, form, or requirement for disclosures under Rule 26.01, including a statement of when initial disclosures were made or will be made;
  2. the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;
  3. any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;
  4. any issues about claims of privilege or of protection as trial-preparation materials, including-if the parties agree on a procedure to assert these claims after production-whether to ask the court to include their agreement in an order;
  5. what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and
  6. any other orders that the court should issue under Rule 26.03 or under Rule 16.02 and .03.

Before this meeting, it is wise to work with your eDiscovery team to identify any items of concern that should be addressed. If your team is in-house, they may have a standard set of items to consider. If you will be working with a vendor, but have not yet selected them, making that choice before the meeting will place counsel in the best position to reach meaningful and effective agreements.

Conference Room image courtesy of Ann Fisher.