Details of FRCP 26(f)
Details of Sedona Principle 3 & Commentaries
E-Discovery
Conclusion
FRCP 26(f)
Sedona Principle 3 & Commentaries
Ryann M. Buckman
Electronic Discovery
September 21, 2009
Details of FRCP 26(f)
What does 26(f) cover in general?
Details of Sedona Principle 3 & Commentaries
What do the provisions mean?
E-Discovery
Conclusion
Rule 26: Duty to Disclose; General Provisions Governing Discovery
(f) Conference of the Parties; Planning for Discovery
(1) Conference Timing
(2) Conference Content; Parties’ Responsibilities
(3) Discovery Plan
(4) Expedited Schedule
Details of FRCP 26(f)
What does 26(f) cover in general?
Details of Sedona Principle 3 & Commentaries
What do the provisions mean?
E-Discovery
Conclusion
26(f)(1) Conference Timing
• As soon as practicable
• A minimum of 21 days before scheduling conference
26(f)(2) Conference Content; Parties’ Responsibilities
• Consider claims and defenses/ Possibility of settling
• Potential discovery problems
• Preservation
• Develop discovery plan
• Attorneys are responsible for: (1) arranging the conference, (2) good faith,
(3) submitting discovery plan within 14 days after conference.
Details of FRCP 26(f)
What does 26(f) cover in general?
Details of Sedona Principle 3 & Commentaries
What do the provisions mean?
E-Discovery
Conclusion
26(f)(3) Discovery Plan
•Amend aspects of required disclosures under 26(a)
• Subjects where discovery may be needed and timing of the discovery
process
• ESI: Potential Issues/Problems and form of production
• Privilege Procedure
• Changes of Discovery Limitations
• Other orders under 26(c), 16(b), and 16(c)
26(f)(4) Expedited Schedule
• “Meet and confer” may be required in fewer than 21 days.
• Discovery plan should be given in writing less than14 days after conference
or may be provided orally.
Sedona Principle 3
Details of FRCP 26(f)
Details of Sedona Principle 3 & Commentaries
E-Discovery
Commentary
Conclusion
Sedona Principle 3
“Parties should confer early in discovery regarding the preservation
and production of electronically stored information when these
matters are at issue in the litigation and seek to agree on the scope of
each party’s rights and responsibilities.”
Details of FRCP 26(f)
Details of Sedona Principle 3 & Commentaries
E-Discovery
Sedona Principle 3
Commentary
Conclusion
• The meet and confer depends upon the parties’ candor,
diligence and reasonableness.
• The requesting party should have sufficient knowledge
of the production options in order to be able to request a
form.
• Purpose: Prevent discovery disputes in order to foster
discovery.
Details of FRCP 26(f)
Other FRCP Implicated
Details of Sedona Principle 3 & Commentaries
E-Discovery
Conclusion
FRCP 16: Scheduling Conference
• 26(f)(1): The “meet and confer” must be held 21 days before the Rule 16
scheduling conference.
•16(f)(1)(B): Authorizes sanctions for not being prepared or not participating
in 26(f) conference in good faith.
FRCP 34(b)(1)(C): Allows the requesting party to specify the form
of production of ESI.
FRCP 34(b)(2)(D): The responding party can object to the form
requested.
FRCP 34(b)(2)(E)(ii): If the requesting party does not specify a form,
the responding party must produce in a form in which the
information is ordinarily maintained or in a reasonably usable form.
Details of FRCP 26(f)
Conclusion/ Outcome
Details of Sedona Principle 3 & Commentaries
Questions
E-Discovery
Conclusion
FRCP 26(f) and Sedona Principle 3 both require:
• The parties to work cooperatively
• In conferring about ESI/Discovery
• Prior to the Rule 16 Scheduling conference
Details of FRCP 26(f)
Conclusion/ Outcome
Details of Sedona Principle 3 & Commentaries
Questions
E-Discovery
Conclusion
Question 1: Does it harm the plaintiffs case to do away with the
adversarial system during the rule 26(f) “meet and confer?”
Question 2: Should rule 26(f) be amended to say explicitly what
aspects of e-discovery should be addressed at every “meet and
confer”?