- Prepare a thorough discovery plan.
- Prepare your client.
- Be willing to work with your opposition.
- Follow up.
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:
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.