Litigation Resources: FRCP 26 Litigation Plans

Rule 26(f) discovery conferences are the foundation of discovery practice in federal litigation. Rule 26(f) requires parties in litigation to meet and “confer as soon as practicable . . . [to] . . . consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures . . .; discuss any issues about preserving discoverable information; and develop a proposed discovery plan.” Fed. R. Civ. P 26(f)(1) and (2).

Many attorneys view Rule 26(f) conferences as a perfunctory obligation; however, the consequences of a poorly conducted Rule 26(f) conference can lead to costly discovery headaches, even costlier remedies, and possible sanctions. These risks can be mitigated, if not avoided, by a well-implemented and well-planned Rule 26(f) strategy. The following are a few practical tips for planning and preparing for Rule 26(f) conferences.

1. Prepare a Thorough Discovery Plan. Attorneys must be well-informed of their case prior to the conference. The more informed attorneys are, the more capable they will be to address relevant issues and streamline the discovery process, which can undoubtedly be done by preparing a thoughtful discovery plan.

Rule 26(f)(3) requires discovery plans to contain the following:

1. any changes to the timing, form, or requirement for disclosures under Rule 26(a), 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, discovery, or preservation 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 under Federal Rule of Evidence 502;
5. any changes in the limitations on discovery imposed under the federal or local rules, and what other limitations should be imposed; and
6. any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and -(c).

When preparing the discovery plan, parties should think about the timing of written discovery, fact and expert discovery deadlines, and document production. Parties should also be cognizant of unrealistic production deadlines, and because some production delays are inevitable, establish a procedure for requesting deadline extensions or scheduling modifications.

2. Prepare Your Client. At the outset, discuss relevant evidence with your client prior to the conference and go over any anticipated potential claims or defenses that may be raised by opposing counsel. Discuss the underlying facts and the type of evidence, such as emails, electronic documents, or data entries, that can be presented to further your client’s case. Additionally, talk with your client about whether the costs of preserving and producing certain evidence is proportional to the evidence’s importance in proving an issue or supporting a defense in a case.

3. Be Willing to Work with Your Opposition. While lawsuits are contentious in nature, parties should make a good-faith effort to address issues in Rule 26(f) conferences. These are a great opportunity to understand what the key matters of the case are for opposing counsel and determine areas of common ground. Parties should aim to conduct a meaningful and productive conference to try to resolve all differences without court intervention.

4. Follow Up. After the conference, follow up with a letter memorializing points of agreement, points of disagreement, and action items. Internally, evaluate which issues can likely be worked out between the parties versus those that will have to be submitted to the court to decide. Finally, where further discussion seems profitable, set a time for the next meet-and-confer to keep the momentum going.

Developing a good grasp on the substantive and practical issues prior to a Rule 26(f) conference is an effective way to ensure productive results from the conference. However, a successful conference boils down to effective and productive preparation and follow-up.

Excerpted from Ebony S. Morris, Four TIps for Productive RUle 26(f) Conferences, ABA Practice Points (2019), https://www.americanbar.org/groups/litigation/committees/pretrial-practice-discovery/practice/2019/four-tips-for-productive-rule-26f-conferences/.