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FRCP Rule 26(f) & Sedona Principle 3. Jessica Mullenix February 8, 2010. Rule 26(f) Conference of the Parties; Planning for Discovery. (1) Conference Timing: parties must meet and confer at least 21 days before the scheduling conference to be held under Rule 16(b).
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FRCP Rule 26(f) & Sedona Principle 3 Jessica Mullenix February 8, 2010
Rule 26(f) Conference of the Parties; Planning for Discovery • (1) Conference Timing: parties must meet and confer at least 21 days before the scheduling conference to be held under Rule 16(b). • (2) Conference Content; Parties’ Responsibilities: parties must consider the nature and basis for their claims and defenses and possibility of settlement; make any disclosures required under Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a discovery plan. A written report of the plan must be submitted to the court within 14 days after the conference.
Rule 26(f) cont’d. • (3) Discovery Plan: the plan must state the parties’ views and proposals on • (A) changes that should be made in timing, form or requirement for disclosure, including a statement of initial disclosures; • (B) subjects on which discovery may be needed, when it should be completed and any phases or limits to the discovery. • (C) any issues about disclosure or discovery of electronically stored information, including the form in which it should be produced • (D) any issues about privilege or work product • (E) changed to be made in limitations on discovery imposed • (F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c).
Rule 26(f) cont’d. • (4) Expedited Schedule: If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule • (A) require conference to occur less than 21 days before the scheduling conference • (B) require the written report outlining the discovery plan to be filed less than 14 days after the parties conference or excuse the parties from submitting a written report and permit them to report orally on the discovery plan
The Positives of “Meet and Confer” Requirement • The parties are required to educate themselves as to their ESI and to identify any possible problems that could arise and to attempt to resolve them early in the litigation • The early identification and resolving of any problems at the “meet and confer” conference helps prevent expensive and time consuming disputes later in litigation
The Sedona Principle 3 • “Parties should confer early in discovery regarding the preservation and production of electronic data and documents and seek when these matters are at issue in the litigation, if possible, to reach agreement concerning the scope of each party’s rights and responsibilities.”
Sedona Principle 3 Commentary • Parties Should Include Electronic Discovery Issues in their Rule 26 Disclosures and Conferences • The Rule 26(f) Conference can preempt disputes regarding ESI • Need to discuss computer systems that are subject to preservation and discovery, the relevant time period and individuals likely to have the relevant ESI in order to identify and attempt to resolve any disputes • By identifying issues that the parties cannot agree on, the court can intervene when necessary to resolve the dispute and minimize spoliation disputes later.
Questions • Is the “meet and confer” requirement of Rule 26(f) an effective way of expediting the litigation process as well as keeping litigation costs in check? • Should there be a penalty to a party if they do not fully disclose relevant ESI at the “meet and confer” conference? • What if it was not intentional or not in bad faith?
