Federal Rules of Civil Procedure 26(f) and In re Bristol-Myers Squibb Securities Litigation

1. Federal Rules of Civil Procedure 26(f)and In re Bristol-Myers Squibb Securities Litigation Lina Carreras

2. Core Concept of Rule 26(f)Meeting of PartiesPlanning for Discovery • The parties must confer and develop a proposed discovery plan in writing. • The discovery plan must be submitted to the court. • This plan will address the discovery schedule and any modifications as to the limits or scope of discovery.

3. Application of Rule 26(f) • Time for Conference • Parties are to confer “as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due under rule 16(b).” • This can be modified by local rule or court order.

4. Application of Rule 26(f) Cont. • Attendance • In person attendance is not required and parties may participate by telephone. • The court can order the parties to participate in person.

5. Application of Rule 26(f) Cont. • Agenda for Discovery Conference • Parties must discuss: • Nature and basis of their claims • Defenses • Possibilities of settlement or resolution of case • Parties must make or arrange for initial automatic disclosures required by Rule 26(a)(1). • Parties must discuss: • Orders that the court should enter • Issues relating to preservation of discoverable information • Develop a proposed discovery plan

6. Rule 26(f) Content of Discovery Plan • The discovery plan should indicate the parties’ positions or proposals concerning: • Automatic Disclosures • Discovery Scope and Schedule • Electronic Information • Privilege Issues • Discovery Limits • Other Orders

7. Rule 26(f) Content of Discovery Plan Specifically Electronic Information • Electronic Information • Issues relating to the disclosure or production of electronically stored information, including the sources of such data, • The form in which it should be produced (paper or electronic form) • If electronic form then how it will be made available • Cost of such production

8. Rule 26(f) Submission of Plan • The parties should submit to the court in writing the plan within 14 days of the discovery meeting. • The court may order the discovery plan be submitted at a different time or that the plan be submitted orally at the Rule 16 conference (Pretrial Conferences; Scheduling; Management) with the court.

9. Good Faith Participation • Rule 26(f) places a joint obligation on the attorneys (and on unrepresented parties) to schedule the discovery conference and to attempt in good faith to agree on a proposed discovery plan and a report outlining the plan.

10. Excluded Proceedings • A discovery conference and discovery plan are not required in proceedings listed in Rule 26(a)(1)(E) as exempted from initial disclosures. • Examples of 26(a)(1)(E) • An action for review of administrative record • An action by the United States to recover benefit payments • An action to enforce an arbitration award. • Parties may be excused from the discovery conference and plan requirements by court order.

11. In re Bristol-Myers Squibb Securities Litigation Case Summary • In re Bristol-Myers Squibb Securities Litigation, 205 F.R.D. 437 (D.N.J. 2002) • This action arises from a securities fraud suit against Bristol-Myers Squibb, a pharmaceutical company. • Defendants' filed a motion to require the Plaintiffs to pay for costs resulting from production of documents in response to discovery requests. • The Defendants’ requested that Plaintiffs pay full costs of paper document copying pursuant to discovery agreement ($308,599.40) and for Plaintiffs to pay one-half the cost of scanning the documents onto electronic form ($216,109.58).

12. In re Bristol-Myers Squibb Securities Litigation Case Summary Cont. • Plaintiffs opposed Defendants’ motion alleging that Defendants caused excessive reproduction costs by “dumping” documents. • Plaintiffs alleged they originally agreed to pay 10¢ per page for copying costs based upon Defendants' early estimate of 500,000 pages. • Plaintiffs further claim that the Defendants have currently “dumped” 3,085,994 pages of documents totaling $308,599.40 in copying charges. • Plaintiffs initially argued that because the Defendants already possessed the information in electronic form that is the form in which the discovery should have been produced. • Plaintiffs then shifted this argument stating that they were “fraudulently induced” to pay for photocopying because some of the requested information was already in electronic form.

13. In re Bristol-Myers Squibb Securities Litigation Holding • The District Court of New Jersey found that: • Defendants did not “dump” documents or provide unresponsive documents. • Plaintiffs could not avoid payment of photocopying charges on grounds that they were fraudulently induced into agreeing to pay by assurances of maximum size of production. • Photocopy charges were reduced to reflect the availability of lower cost copying option than one used. • Defendants’ failure to inform Plaintiffs that some information was available in electronic form precluded recovery of photocopying costs for that information. • Defendant was required to make electronically scanned version of information available to Plaintiffs, in return for payment only of nominal costs of loading information on to compact discs.

14. In re Bristol-Myers Squibb Securities Litigation and Rule 26(f) Holding • The District Court of New Jersey responded in this case by stating that the Parties should have adhered to Rule 26(f) requiring the parties to “meet and confer” to develop a proposed discovery plan. • The Parties should have used the meeting to discuss issues associated with electronic discovery. • The Parties discovery conference should have included: • discussion on whether each side possessed information in electronic form, • what documents were available in electronic format, • the format that was to be used for disclosures and production of such documents • how to allocate the reproduction costs.

15. In re Bristol-Myers Squibb Securities Litigation and Rule 26(f) Holding Cont. • Further, the District Court of New Jersey has instructions on the Joint Discovery Plan which include: • Description of all discovery problems encountered • Efforts undertaken by the parties to remedy the problems • Suggestions for resolution of the problems • Description of the parties’ further discovery needs

16. In re Bristol-Myers Squibb Securities Litigation and Rule 26(f) Holding Cont. • The Court closed by stating that: • “[I]t is the Court’s hope and expectation that the full and meaningful utilization of tools permitted by the Federal Rules of Civil … Procedure, particularly Rule 26(f) …, will obviate future problems of fair and economical discovery cost allocation in the production and use of electronic information.”

17. Discussion of In re Bristol-Myers Squibb Securities Litigation and Rule 26(f) • As a consequence both Parties were required to carry the burden of production costs. Do you think the finding was fair? • In general, do you believe that a meet and confer of the parties will prevent similar disputes?