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eDiscovery Federal Rules 16(b) and 26(f): Meet and Confer

Rule 16. Pretrial Conferences; Scheduling; Management

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(b) Scheduling.

(1) Scheduling Order. Except in categories of actions exempted by local rule, the district judge -- or a magistrate judge when authorized by local rule -- must issue a scheduling order:

(A) after receiving the parties' report under rule 26(f); or

(B) after consulting with the parties' attorneys and any unrepresented parties at a scheduling conference.

(2) Time to Issue.The judge must issue the scheduling order as soon as practicable, but unless the judge finds good cause for delay, the judge must issue it within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared.

(3) Contents of the Order.

(A) Required Contents. The scheduling order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions.

(B) Permitted Contents. The scheduling order may:

(i) modify the timing of disclosures under rules 26(a) and 26(e)(1);

(ii) modify the extent of discovery;

(iii) provide for disclosure, discovery, or preservation of electronically stored information;

(iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced, including agreements reached under Federal Rule of Evidence 502;

(v) direct that before moving for an order relating to discovery, the movant must request a conference with the court;

(vi) set dates for pretrial conferences and for trial; and

(vii) include other appropriate matters.

(4) Modifying a Schedule. A schedule may be modified only for good cause and with the judge's consent.

Rule 26. Duty to Disclose; General Provisions Governing Discovery

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(f) Conference of Parties; Planning for Discovery.

(1) Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when 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).

(2) Conference Content; Parties' Responsibilities. 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 disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case 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. The court may order the parties or attorneys to attend the conference in person.

(3) Discovery Plan. A discovery plan must state the parties' views and proposals on:

(A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made;

(B) 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;

(C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;

(D) 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;

(E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and

(F) any other orders the court should issue under Rule 26(c) or under Rule 16(b) and (c).

(4) Expedited Schedule. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule:

(A) require the parties' conference to occur less than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b); and

(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 reprot and permit them to report orally on their discovery plan at the Rule 16(b) conference.

Sources: April 29, 2015 Supreme Court Order re FRCP Amendment effective December 1, 2015; United States Courts: Current Rules of Practice and Procedure

Rules 16(b) and 26(f) Summary

These two rules alert counsel and the court that they should consider eDiscovery issues as early and comprehensively as possible. The opposing parties must meet and confer at least 21 days before the scheduling conference with the court in order to work out agreements on the preservation of electronically stored information (ESI), the forms of ESI production, the methods that will be employed to filter out irrelevant information, and protection for privileged information. Once the parties have met and the scheduling conference has occurred, the court will issue a scheduling order that will govern the pace of the litigation.

Rules 16(b) and 26(f) Checklist

Prior to the start of litigation, get to know your client's IT structure and data retention policies.

Draft and serve a preservation request defining the minimum scope of relevant information.

Negotiate terms for a clawback agreement in the event that privileged material is inadvertently produced.

Set up a 30(b)(6) deposition for the opposing party's IT manager in order to learn about their IT structure and data retention policies.

Determine whether files are to be produced in native format.

Agree on the extent to which metadata will be used.

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