The Discovery Planning Conference

The Discovery Planning Conference

Rule 26(f), titled “Conference of the Parties; Planning for Discovery,”¹ requires the parties in most federal cases to confer and plan for disclosures and discovery before the discovery process begins.² Two later events in this chapter depend on that meeting. Initial disclosures ordinarily fall due at or within 14 days after it, and a party generally may not seek discovery from any source until it has taken place.³

The conference is the parties’ own meeting, not the judge’s. Federal judges may order a pretrial conference at their discretion, and courts have generally rejected making a formal conference mandatory in every case, because a conference wastes time in simple cases and does not work unless the judge believes it useful.⁴ Rule 26(f) takes a different route. Unless the proceeding is exempt, it requires the parties themselves to meet early, outside any formal court setting, and to develop a written discovery plan for presentation to the trial court.⁵

The meeting is meant to do real work, and a perfunctory one misses the point. It lets the parties educate themselves and their adversaries, anticipate and resolve electronic discovery disputes before they escalate, speed the case along, and assess and manage litigation costs. It also lets them show the court, at the Rule 16 conference that follows, that they have made diligent, good-faith efforts to comply with the rules.⁶ And it forces the preservation question into the open at the start of the case, so the parties do not face sanctions motions later for failure to preserve or produce information.⁷ The subsections below take up when the parties must meet, what they must do when they meet, and what the discovery plan must contain.

Conference Timing

Rule 26(f)(1) fixes the date of the conference in a single sentence. Unless the proceeding is exempt from initial disclosure under Rule 26(a)(1)(B) or the court orders otherwise, the parties must confer as soon as practicable, and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).⁸

That sentence uses two measures of time that do different work. “As soon as practicable” sets a standard of promptness: the parties must meet when they realistically can. The 21-day figure sets a ceiling on lateness, counted backward from a date the court controls, so the parties may meet earlier, and the rule expects them to. Two clauses at the front then limit the requirement, one for exempt proceedings and one for a court order that says otherwise. Outside those exceptions, the conference is required in most federal cases.⁹

Because the ceiling is counted back from the court’s schedule and not forward from the complaint, the first task is to learn when the scheduling order is due. Rule 16(b) makes the order due within ninety days after any defendant has been served with the complaint or sixty days after any defendant has appeared, so the earlier of those dates sets the conference deadline.¹⁰ In sequence, the early events run as follows:

1. A defendant is served or appears, which starts the clock on the court’s scheduling order.¹¹
2. The parties confer, as soon as practicable and at least 21 days before the scheduling conference or the order’s due date.¹²
3. At or within 14 days after the conference, the parties make initial disclosures, and within 14 days after it they submit a written report outlining the proposed discovery plan.¹³
4. The court holds its Rule 16 conference with the parties and issues a scheduling order, generally based in part on their report.¹⁴

That sequence explains why the conference is tied to the scheduling order and not to some other date. The report is meant to inform the judge’s order, and a conference held after the order was due would have the judge fixing discovery deadlines before hearing from the lawyers who know what discovery the case needs. The 21-day lead also leaves room for the paperwork. If the parties wait until the last permitted day and then take the full 14 days to report, the court has about a week with the report before the order is due.¹⁵

The same sequence gives “as soon as practicable” its force. Initial disclosures are due at or within 14 days after the conference.¹⁶ Formal discovery cannot begin until the parties have conferred, unless the proceeding is exempt or the rules, a stipulation, or a court order authorize it.¹⁷ Every day of delay therefore postpones both the first exchange of information and the opening of formal discovery, and the outer limit is not a target.

Exam questions on timing usually list a filing date, a service date, and a due date for the scheduling order, and they test whether the student counts from the right anchor. The deadline runs backward from the court’s scheduling event. The filing and service dates matter only because they start that event’s clock. Reading “at least 21 days before” as a 21-day wait after service reverses the direction of the count.

The two limiting clauses remove whole categories of cases from the requirement and let a judge reshape it in an individual case.

The exemption tracks the exemption from initial disclosure. The conference exists in part to arrange those disclosures, so a proceeding that needs none has little to confer about. The court-order clause serves a different purpose, since a judge who knows the particulars of one case can set a conference date that fits it. Neither clause lets the parties excuse themselves by agreement, because the rule names the exempt proceeding and the court’s order, and a private understanding between the lawyers is neither.

Conference Content

Rule 26(f)(2) gives the conference a task list. In conferring, the parties must 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 initial disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan.¹⁹ The four duties differ in kind. Two call for discussion (the claims-and-settlement subject and preservation), one calls for action (the disclosures), and one calls for a product (the plan). The court’s scheduling order is generally based in part on what the parties report from the meeting.²⁰

The parties take up claims and defenses first because a plan for discovery is a plan for proof, and lawyers cannot plan sensibly until they know what is actually in dispute. Identifying what is really at issue lets discovery be aimed at it, whereas unfocused discovery means uncontrolled costs.²¹ Settlement belongs on the same agenda. The rule directs the parties to consider the possibilities for promptly settling or resolving the case, so the lawyers must at least raise them, even when they expect no agreement.²²

The rule tells the parties to make or arrange for the initial disclosures, so they may exchange them at the meeting or agree there on how and when they will be exchanged. Disclosures are due at or within 14 days after the conference unless a stipulation, a court order, or a recorded objection changes the date.²³ The meeting is also the place to settle how far disclosure and discovery reach. Suppose a driver injured in one car model sues the manufacturer, and several other models share the same platform or mechanical systems. Must the manufacturer produce or identify documents pertinent to its defense for those other models too? The rules require the parties to meet and confer and prepare a discovery plan partly to answer questions like that one.²⁴

The parties must also discuss any issues about preserving discoverable information. Putting preservation on the agenda forces the parties to focus on it at the very outset, instead of facing sanctions motions on the back end for failure to preserve or produce.²⁵ A useful discussion requires lawyers who know where and how their clients keep records, and attorneys are now expected to learn that before they meet. The duty to disclose applies to records in a party’s possession, custody, or control, and issues of cost and accessibility belong in the same discussion.²⁶ What the written plan must report about electronic information is a separate question, taken up in the next subsection.

The fourth duty, developing a proposed discovery plan, is where the other three lead. Rule 26(f)(3) lists the subjects on which the plan must state the parties’ views and proposals.²⁷

Having set the agenda, the rule assigns responsibility for carrying it out. The attorneys of record and all unrepresented parties that have appeared are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court, within 14 days after the conference, a written report outlining the plan.²⁸ Joint responsibility closes a gap that a rule naming only the plaintiff would leave open. If one side alone had to call the meeting, the other could wait, let the schedule slip, and then blame the first. Under the rule every lawyer of record shares the duty, and none can excuse a missed meeting by pointing at someone else’s failure to arrange it. An unrepresented party that has appeared is counted because no lawyer is there to carry the duty for that litigant, so the litigant carries it personally.

The good-faith duty measures effort, not result. The rule asks the lawyers to attempt to agree, and it does not require that they succeed. The parties are supposed to endeavor in good faith to agree on discovery issues and on limits on the subjects on which discovery may be needed, in the expectation that agreement will limit the open-ended scope that discovery otherwise has, since it reaches any matter relevant to any claim or defense, whether or not it would be used or admitted at trial.²⁹ In Mancia v. Mayflower Textile Servs. Co., the court cited Rule 26(f) as an example of a rule requiring parties and their counsel to confer, consider the nature and basis of their claims and defenses and the possibility of settlement, and develop and agree on a proposed discovery plan to submit to the court.³⁰ A dispute narrowed in conversation never becomes a motion, so the attempt to agree saves the cost of motion practice before anyone incurs it.

An essay question on this rule typically describes a lawyer who treats the plan as something to hand over instead of something to work out.

That scene fails on each of the rule’s responsibilities. Plaintiff’s counsel made no attempt in good faith to agree, since a plan delivered with a refusal to discuss it is a unilateral act. Defense counsel cannot shelter behind that conduct, because joint responsibility for arranging the conference runs to every attorney of record, and waiting silently for the other side to call the meeting is a failure to arrange it. A complete answer names both lawyers and applies the measure of effort, so the answer does not turn on whether the lawyers ended up agreeing.

Every agenda item was covered, the lawyers shared the work of arranging and agreeing, and the report reached the court inside the 14-day window, so each responsibility was met. The 14 days run from the conference itself, and not from the filing of the complaint or from the court’s scheduling order. Initial disclosures are measured from the same event under their own 14-day default, so a single conference date starts two clocks, one for the exchange among the parties and one for the report to the court.³¹

The rule closes with a tool for the judge: the court may order the parties or attorneys to attend the conference in person.³² The power lets a court that doubts the process is being taken seriously insist on a face-to-face meeting.

The Discovery Plan

Rule 26(f)(3) turns the conference into a written product: a discovery plan must state the parties’ views and proposals on a list of topics.³⁴ The plan is what the parties outline in the written report that Rule 26(f)(2) requires within 14 days after the conference, and the attorneys of record and any unrepresented parties who have appeared share responsibility for it.³⁵ Because the rule asks for each side’s views and proposals, a disagreement belongs in the report as a disagreement. The lawyers must attempt in good faith to agree, but that duty is one of effort, and the judge resolves whatever the lawyers could not.

The plan must be written down because the court uses it. After the conference the parties submit the report, the court holds its Rule 16 conference, and the scheduling order that follows is generally based in part on the report, with deadlines that govern the timing of discovery.³⁶ A report that sets out both sides’ proposals on scope, timing, and sequence lets the judge tailor the schedule to the case before any deadline is fixed. The topics the rule assigns to the plan each ask the parties to take a position:

1. Disclosures. A party who objects that initial disclosures are not appropriate in the action must state the objection in the proposed discovery plan, and the court then decides what disclosures, if any, are to be made and sets the time for them.³⁷
2. Scope and timing of discovery. The parties report the subjects on which discovery may be needed, when discovery should be completed, and whether it should be conducted in phases or be limited to or focused on particular issues.³⁸
3. Electronic information. The plan takes up electronically stored information, including its preservation and the cost and accessibility of discovering it.³⁹
4. Privilege orders. The parties report their views and proposals on whether to ask the court to include their agreement about privilege issues in an order under Federal Rule of Evidence 502.⁴⁰
5. Limits on discovery. The parties report what changes should be made in the limitations on discovery imposed by the rules or by local rule, and what other limitations should be imposed.⁴¹
6. Other orders. The parties report any other orders the court should issue under Rule 26(c) or under Rule 16(b) and (c).⁴²

The scope-and-timing topic is where the parties fix their views on relevance. Discovery may reach any matter relevant to any claim or defense, and the plan is the place to narrow the subjects on which it will be needed.⁴³ Electronic sources fall under the same analysis. In Zubulake I, the objection to producing backup tapes was in part that no one could know whether the tapes held relevant data and so met the threshold for discovery under Rule 26(b)(1).⁴⁴ The phasing question carries much of the plan’s cost control, because unfocused discovery means uncontrolled costs.⁴⁵ Discovery on every issue at once spends money on questions the case may never reach. If liability will be decided first, the cost of developing damages evidence is wasted should liability fail, and a phased schedule postpones that spending until it is known to be needed.

The electronic-information and privilege topics move expensive disputes to the front of the case. A Rule 502 order can provide that producing a privileged document in the pending case waives the privilege neither in that action nor in any other state or federal proceeding, which protects a party against inadvertent production.⁴⁶ A party that raises the point in the plan can have that protection in place before any production, instead of litigating waiver afterward.

The electronic-information topic also reaches records held by nonparties. In DeGeer v. Gillis, the court drew on the Sedona Commentary’s emphasis on addressing nonparty production of electronically stored information at the outset of the litigation. As the Commentary explains, parties should disclose, in the Rule 26(a) mandatory initial disclosure, information from nonparties that they believe they may need to support a claim or defense, along with the nonparties’ identities.⁴⁷ The lesson for a plan is practical. When a nonparty holds records central to the case, the parties should raise their acquisition at the conference and in the report. A plan silent on a source the parties know to be central leaves the problem to surface later as a discovery dispute.

The last two topics let the parties ask for adjustments to the usual framework. A party who thinks the limits imposed by the rules or by local rule are wrong for the case proposes a change in the plan, and a party who needs any other order asks for it there.⁴⁸ A party who expects to need a protective order raises that need in the plan as well. A list of items quoted in Flores v. Merck & Co. shows the kind of specific question a court may put to the parties: whether they anticipate the need for a protective order relating to the discovery of information relating to a trade secret or other confidential research, development, or commercial information.⁴⁹

The usual exam error is to describe the plan as a record of what the parties agreed. The report states views and proposals, including those on which the lawyers differ, and it feeds a scheduling order that the judge issues after considering both sides. A second error is to treat a conference discussion of electronic information as a substitute for reporting the parties’ views and proposals on it in the plan.