An efficient and cooperative discovery stage can have a huge impact on the smooth progression of a legal case. As the examination of increasingly vast quantities of electronic documents becomes commonplace, an effective and dependable approach to this important element of modern litigation is essential.
FRCP Rule 26(f) offers the opportunity to get a legal case off to the strongest of collaborative starts—if it is approached with the correct understanding and necessary preparation.
In this article, we’ll explore the intricacies of the FRCP Rule 26(f) Meet and Confer process (sometimes referred to as the FRCP Rule 26(f) conference.)
Rule 26(f) Quick Summary: FRCP Rule 26(f) requires parties in most federal civil cases to meet early in the litigation process to discuss initial disclosures, preserve electronically stored information (ESI), and create a discovery plan. A well-prepared Meet and Confer helps reduce disputes and streamline eDiscovery.
What Is FRCP Rule 26(f)?
FRCP Rule 26(f) requires parties in most federal civil cases to meet early in the litigation process to discuss discovery. During this meet and confer, they address initial disclosures, the preservation of electronically stored information (ESI), the scope of eDiscovery, and a proposed discovery plan.
The goal is to reduce disputes and keep the case moving efficiently.
In terms of responsibility for arrangement, both parties are jointly responsible—and this remains true as the case progresses. Communication regarding any issues relating to discovery, as more details and data come to light, should be ongoing.
While often referred to as a “meet and confer'', the conference does not necessarily need to be held in person. Unless the court orders otherwise or the case is exempt from initial disclosures under Rule 26(a)(1)(B), the parties must meet and confer as soon as practicable.
In most cases, this means holding the conference at least 21 days before the Rule 16(b) scheduling conference or scheduling order.
According to the language of Rule 26(f)—when meeting to confer, both parties must:
- Consider the nature and basis of their claims and defenses
- Consider possibilities for promptly settling or resolving the case
- Make or arrange for the disclosures required by Rule 26(a)(1)
- Discuss any issues about preserving discoverable information
- Develop a proposed discovery plan
Rule 26(f) Timeline and Requirements
Before the Meet and Confer
- Schedule the conference early.
- Meet at least 21 days before the Rule 16(b) scheduling conference.
- Review your claims, defenses, and key evidence.
During the Meet and Confer
- Discuss initial disclosures.
- Address legal hold and ESI preservation.
- Identify relevant data sources.
- Define the scope of eDiscovery.
- Create a proposed discovery plan.
After the Meet and Confer
- Finalize the discovery plan.
- Submit the plan to the court.
Meet & Confer: What’s at Stake?
A Rule 26(f) conference is intended to lay a strong foundation for a productive discovery plan. Rather than being seen as a hoop to jump through in order for other procedures to commence, it can be viewed as an opportunity to create a plan that both parties can benefit from.
Discovery can be a long and complex process for everyone involved. By approaching a meet and confer conference with a collaborative—as opposed to combative attitude—there’s much to be gained.
Above all else, a meet and confer conference offers the opportunity to set out clear expectations around discovery needs and associated capabilities.
Communication around limitations of scope and likely timeframes, coupled with the resolution of any issues relating to preservation methods or similar (ahead of this being officially ordered by the court) can save everyone involved time and money.
At the end of the conference, both parties should have considered the nature and basis of their claims and defenses, made or arranged for the disclosures required by Rule 26(a)(1), brought to light any issues regarding preserving discoverable information and, crucially, developed a discovery plan.
Tips for a Successful Meet & Confer Conference
When planning for a productive Meet and Confer conference, keep the following in mind:
1. Go In With a Gameplan
Ahead of your meet and confer, establish clear objectives and desired outcomes. Recognize the potential it holds to streamline the ongoing discovery process and set the expectation for future collaboration.
2. Know Exactly What You Need
The revised Federal Rules of Civil Procedure state that you should prepare discovery requests with "reasonable particularity."
Translation: know exactly what you need from the opposing party.
3. Look for Common Ground
FRCP Rule 26(f) has the potential to benefit everyone involved, so be ready to discuss capacities and limitations openly. By being clear about exactly what’s needed at this early stage, ideally in the presence of IT representatives, you can find mutuality.
4. Flag Issues Early On
Your FRCP Rule 26(f) meet and confer conference is not a time to be stalling for stalling’s sake. The idea is to come out with a well developed proposed discovery plan that will work for everyone involved.
If genuine discovery disputes arise, these can be presented to the judge, but the meet and confer should serve to root out and resolve lesser matters.
5. Get Clear on Your Objections
If you intend to push back on specific discovery requests, be sure that you have a well-prepared objection that can be clearly communicated.
Ensuring Proper Preservation
Many of the outcomes of a FRCP Rule 26(f) meet and confer depend on the data preservation and recordkeeping on both sides of the case.
Going into your conference, it’s important to have this front and centre, as establishing clear parameters here will be vital to understanding the limitations that might be placed upon a discovery plan.
For many, legal hold will be the most pressing matter. In addition to ensuring that a legal hold has been established, you’ll also need to know its current status, the way in which it was communicated and who it has been distributed to.
It’s also important to ascertain exactly which data sources have been specified with regard to the legal hold.
Document retention policies should be reviewed early in the process. Parties should confirm that relevant ESI, like emails, cloud data, and team collaboration platforms, is being preserved.
Ideally, both parties should leave the FRCP Rule 26(f) meet and confer confident that an adequate preservation strategy has been put in place by the opposing party.
Establishing the Scope of eDiscovery
In addition to establishing the state of data preservation on both sides of the case in question, a FRCP Rule 26(f) meet and confer will help to establish the scope of the ongoing eDiscovery process.
By asking questions about the range of employees with relevant data, the sources that this data may be contained within and the general time frame of relevancy for data associated with the case, a clear picture of the magnitude of the discovery process should be revealed.
This is a good time to talk about priorities, especially with regard to the sources of data that both parties will require access to.
If any issues might arise as a result of this (for example, if certain data is inaccessible or from non-traditional sources such as text message) then these can be flagged.
The parties should identify where relevant data is stored. This may include:
- Cloud storage
- Collaboration platforms like Microsoft Teams and Slack
- Mobile devices
- Third-party applications.
Identifying these data sources early can help avoid delays and discovery disputes.
It’s also a stage at which lines in the sand can be drawn with regard to burden and expense. Both parties can express what they consider reasonable, and where requests cross the line to become disproportionate.
Reducing the eDiscovery Burden: Exploring Early Case Assessment
Finally—and perhaps most importantly—the FRCP Rule 26(f) Meet and Confer represents a mutually beneficial opportunity to expedite and reduce the cost of the discovery process.
Exploring early case assessment can be very beneficial if tools and techniques are accessible. Some factors that might help direct reducing the burden of discovery include:
- Agreement from both parties to phase discovery activities
- Steps that can be taken to assure the quality of data produced
- The specific requirements of the data produced (i.e. which metafields, what form of presentation file)
- Flagging any concerns regarding the cost of production, and objections which might arise as a result of this
Technology-assisted review (TAR) is used to prioritize relevant documents and reduce the amount of data that requires manual review.
Discussing TAR during the Rule 26(f) Meet and Confer can help both parties agree on a more efficient and cost-effective discovery process.
Common Rule 26(f) Mistakes to Avoid
A productive Rule 26(f) Meet and Confer requires preparation and open communication. Avoid these common mistakes to keep discovery on track:
- Waiting too long to prepare: Review your claims, defenses, and relevant data sources before the conference.
- Overlooking preservation obligations: Make sure legal holds are in place and relevant ESI is being preserved.
- Failing to identify key data sources: Consider email, cloud storage, collaboration platforms, mobile devices, and other systems that may contain relevant information.
- Setting an unclear discovery scope: Agreeing on reasonable timelines and the scope of eDiscovery early can help reduce disputes.
- Treating the conference as a formality: The Meet and Confer is an opportunity to resolve issues early, not simply satisfy a procedural requirement.
Set Up for Success With FRCP Rule 26(f)
Meet and confer conferences can be productive, beneficial and mutually advantageous – but preparation, assisted by the right tools and technology is key. Pagefreezer enables legal professionals to efficiently investigate the relevance of a wide range of data sources in relation to a case.
Advanced search and filtering capacities help to quickly close in on pertinent data, from any number of websites, collaboration tools, and social media accounts.
Data can be exported for use in eDiscovery in a wider range of formats (PDF, CSV, and WARC) and all records include associated metadata, a time-stamp and a SHA-256 digital signature – ensuring no issues with validity or authenticity.
Frequently Asked Questions About FRCP Rule 26(f)
When must a Rule 26(f) Meet and Confer take place?
Unless the court orders otherwise, the parties must meet as soon as practicable and at least 21 days before the Rule 16(b) scheduling conference or scheduling order.
Who must participate in a Rule 26(f) conference?
The parties to the lawsuit (or their attorneys) must participate in the meet and confer. They should have enough knowledge of the case and discovery process to make informed decisions.
What should be discussed during a Rule 26(f) Meet and Confer?
The parties discuss claims and defenses, initial disclosures, preservation of electronically stored information (ESI), scope of eDiscovery, and a proposed discovery plan.
Is a Rule 26(f) Meet and Confer required in every case?
No. Some proceedings are exempt from the initial disclosure requirements under Rule 26(a)(1)(B), and courts may modify or waive the requirement in certain situations.
Learn more about another key stage of the discovery process – understanding a request for production of documents.
