Jessica Mullenix
February 8, 2010
Rule 26(f) Conference of the
Parties; Planning for Discovery
 (1) Conference Timing: parties must meet and
confer at least 21 days before the scheduling conference
to be held under Rule 16(b).
 (2) Conference Content; Parties’ Responsibilities:
parties must consider the nature and basis for their
claims and defenses and possibility of settlement;
make any disclosures required under Rule 26(a)(1);
discuss any issues about preserving discoverable
information; and develop a discovery plan. A written
report of the plan must be submitted to the court
within 14 days after the conference.
Rule 26(f) cont’d.
 (3) Discovery Plan: the plan must state the parties’ views and
proposals on
 (A) changes that should be made in timing, form or
requirement for disclosure, including a statement of initial
disclosures;
 (B) subjects on which discovery may be needed, when it
should be completed and any phases or limits to the
discovery.
 (C) any issues about disclosure or discovery of electronically
stored information, including the form in which it should be
produced
 (D) any issues about privilege or work product
 (E) changed to be made in limitations on discovery imposed
 (F) any other orders that the court should issue under Rule
26(c) or under Rule 16(b) and (c).
Rule 26(f) cont’d.
 (4) Expedited Schedule: If necessary to comply with
its expedited schedule for Rule 16(b) conferences, a
court may by local rule
 (A) require conference to occur less than 21 days before
the scheduling conference
 (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 report and permit them to report orally on the
discovery plan
The Positives of “Meet and Confer”
Requirement
 The parties are required to educate themselves as to
their ESI and to identify any possible problems that
could arise and to attempt to resolve them early in the
litigation
 The early identification and resolving of any problems
at the “meet and confer” conference helps prevent
expensive and time consuming disputes later in
litigation
The Sedona Principle 3
 “Parties should confer early in discovery regarding the
preservation and production of electronic data and
documents and seek when these matters are at issue in
the litigation, if possible, to reach agreement
concerning the scope of each party’s rights and
responsibilities.”
Sedona Principle 3 Commentary
 Parties Should Include Electronic Discovery Issues in
their Rule 26 Disclosures and Conferences
 The Rule 26(f) Conference can preempt disputes
regarding ESI
 Need to discuss computer systems that are subject to
preservation and discovery, the relevant time period and
individuals likely to have the relevant ESI in order to
identify and attempt to resolve any disputes
 By identifying issues that the parties cannot agree on,
the court can intervene when necessary to resolve the
dispute and minimize spoliation disputes later.
Questions
 Is the “meet and confer” requirement of Rule 26(f) an
effective way of expediting the litigation process as
well as keeping litigation costs in check?
 Should there be a penalty to a party if they do not fully
disclose relevant ESI at the “meet and confer”
conference?
 What if it was not intentional or not in bad faith?