Federal Rule 26(f) Report and Discovery Plan

JOINT RULE 26(f) REPORT AND PROPOSED DISCOVERY PLAN

(Pursuant to Fed. R. Civ. P. 26(f), Fed. R. Civ. P. 16(b), and Applicable Local Rules)

Drafting Notes (remove before filing):
- Timing: The parties must meet and 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." FRCP 26(f)(1). The written report is due 14 days after the conference. FRCP 26(f)(2).
- Proportionality (2015 Amendments): FRCP 26(b)(1) now expressly requires discovery to be "proportional to the needs of the case," considering: importance of issues, amount in controversy, relative access to information, parties' resources, importance of discovery in resolving issues, and burden vs. benefit.
- ESI: Parties must address ESI preservation, identification of custodians, search protocols (keyword search or TAR/CAL), production format (native / TIFF+load file / PDF), and metadata fields. Address inaccessible sources under FRCP 26(b)(2)(B).
- FRE 502(d) Order: A court order under FRE 502(d) prevents inadvertent disclosure from waiving privilege even as to third parties and in other proceedings. Strongly recommended in large document cases.
- Local Rules: Check local rules for the specific district — many districts (SDNY, NDCA, NDIL, EDPA, etc.) have standing orders or specific forms for 26(f) reports that may supplement or modify these requirements.
- Initial Disclosures: Under FRCP 26(a)(1), disclosures must be made within 14 days after the Rule 26(f) conference unless the parties stipulate to a different date or a court order provides otherwise.

CAPTION

UNITED STATES DISTRICT COURT
FOR THE [____] DISTRICT OF [STATE]

[PLAINTIFF NAME],
    Plaintiff,

v.                                 Case No. [____________________]

[DEFENDANT NAME],
    Defendant.

JOINT REPORT OF RULE 26(f) CONFERENCE AND PROPOSED DISCOVERY PLAN

SECTION 1: CONFERENCE DETAILS

1.1 Date and Time: The Rule 26(f) conference was held on [__/__/____] at [____] [a.m./p.m.] [time zone].

1.2 Format: The conference was conducted [in person / by telephone / by videoconference].

1.3 Participants:

1.4 Agenda Covered: The parties addressed all topics required by FRCP 26(f)(3), including: claims and defenses; initial disclosures; subjects of discovery; ESI; preservation; privilege and clawback; proposed schedule; and ADR.

SECTION 2: CASE OVERVIEW

2.1 Nature of the Claims: [Brief statement of Plaintiff's claims, e.g., "Plaintiff asserts claims for breach of contract and breach of fiduciary duty arising from Defendant's alleged [________________________________]."]

2.2 Nature of the Defenses: [Brief statement of Defendant's defenses, e.g., "Defendant denies liability and asserts, among other defenses, [________________________________]."]

2.3 Key Factual Issues:
(a) [________________________________]
(b) [________________________________]
(c) [________________________________]

2.4 Key Legal Issues:
(a) [________________________________]
(b) [________________________________]
(c) [________________________________]

2.5 Amount in Controversy: Plaintiff estimates damages in excess of $[____________________]. Defendant disputes liability and the quantum of alleged damages.

2.6 Related Proceedings: ☐ None. ☐ The following related cases, arbitrations, or administrative proceedings are pending: [________________________________]. The parties [agree / disagree] that coordination or consolidation is appropriate.

SECTION 3: INITIAL DISCLOSURES (FRCP 26(a)(1))

3.1 Exchange of Initial Disclosures:
☐ The parties have already exchanged initial disclosures, as follows:
- Plaintiff served disclosures on: [__/__/____]
- Defendant served disclosures on: [__/__/____]
☐ The parties stipulate that initial disclosures will be exchanged by [__/__/____] (no more than 14 days after the Rule 26(f) conference absent court order).

3.2 Scope of Initial Disclosures: The parties agree that initial disclosures will include:
(a) The name, address, and telephone number of each individual likely to have discoverable information, along with the subjects of that information (FRCP 26(a)(1)(A)(i));
(b) A copy or description of all documents, electronically stored information, and tangible things in the disclosing party's possession that may be used to support its claims or defenses (FRCP 26(a)(1)(A)(ii));
(c) A computation of each category of damages claimed, with supporting documentation (FRCP 26(a)(1)(A)(iii));
(d) Insurance agreement information (FRCP 26(a)(1)(A)(iv)).

3.3 Supplementation: The parties will supplement their initial disclosures as required by FRCP 26(e) [monthly / quarterly / within 30 days of learning of new information / ________________________________].

SECTION 4: PRESERVATION AND LITIGATION HOLD

4.1 Litigation Hold Implementation:
- Plaintiff issued a litigation hold on or about [__/__/____].
- Defendant issued a litigation hold on or about [__/__/____].

4.2 Sources Preserved: The following sources of potentially relevant information have been identified and preservation steps have been taken:
☐ Email (corporate email servers / individual accounts)
☐ Cloud storage (Google Drive / SharePoint / Dropbox / OneDrive / other: [____])
☐ Mobile devices (SMS/MMS / messaging apps: Signal, Slack, Teams, WhatsApp, other: [____])
☐ Databases and enterprise systems (CRM / ERP / accounting: [____])
☐ Backup systems and archival storage
☐ Hard copy files and physical documents
☐ Social media (if relevant)
☐ Surveillance video / recordings
☐ Other: [________________________________]

4.3 Disputes Regarding Preservation: [None / The parties have the following disagreements regarding the scope or adequacy of preservation: ________________________________.]

4.4 Spoliation Risk: [None known / Plaintiff is aware of the following potential preservation issues: ________________________________.]

SECTION 5: ELECTRONICALLY STORED INFORMATION (ESI) PROTOCOL

5.1 Custodians and Non-Custodial Sources:

Plaintiff's ESI Custodians (individuals with potentially relevant ESI):
| Name | Title/Role | ESI Types Held |
|------|-----------|---------------|
| [________________________________] | [________________________________] | [________________________________] |
| [________________________________] | [________________________________] | [________________________________] |

Defendant's ESI Custodians:
| Name | Title/Role | ESI Types Held |
|------|-----------|---------------|
| [________________________________] | [________________________________] | [________________________________] |
| [________________________________] | [________________________________] | [________________________________] |

Non-Custodial Sources: [Databases / servers / shared drives / repositories: ________________________________]

5.2 Date Ranges: The parties agree that ESI collection will be limited to the date range of [__/__/____] through [__/__/____], unless a party makes a specific showing of need for ESI outside this range.

5.3 Search Methodology:
☐ Keyword Search: The parties will propose and negotiate a list of search terms. The initial proposed search terms are attached as Exhibit 1 or will be exchanged by [__/__/____].
☐ Technology-Assisted Review (TAR/CAL/Predictive Coding): The parties agree to use [specify platform/vendor]. The parties will confer regarding the TAR protocol, including seed set, validation methodology, and recall/precision targets.
☐ Hybrid Approach: [Describe: ________________________________]

5.4 Production Format:
- Default Format: Single-page TIFF images with document-level extracted text, load file (in [Concordance DAT / Opticon OPT / other] format), and industry-standard metadata fields.
- Exceptions:
- Spreadsheets and Excel files: produced in native format;
- Audio, video, or other media files: produced in native format;
- If producing party cannot produce TIFF, alternative format (native with extracted text or OCR): [________________________________].
- Bates Numbering: Documents shall be Bates-numbered with the prefix [____-] for Plaintiff and [____-] for Defendant, with [8]-digit numbering.

5.5 Metadata Fields to Be Produced:
- Custodian, Date Created, Date Last Modified, Date Sent/Received (for email), Author, To/From/CC/BCC, Subject, Attachment Count, File Extension, MD5 Hash, Bates Number, Confidentiality Designation.

5.6 Deduplication: The parties agree to global deduplication across all custodians based on MD5 hash value [for email threads: near-deduplication using [methodology: ________________________________]].

5.7 Inaccessible Sources (FRCP 26(b)(2)(B)): The following sources have been identified as not reasonably accessible due to undue burden or cost:
[List sources, e.g., backup tapes from [date], deleted email prior to [date], legacy systems: ________________________________]
The requesting party may seek production of these sources upon a showing of good cause, subject to cost-shifting.

5.8 ESI Disputes: [None anticipated / The following ESI issues remain unresolved: ________________________________.]

SECTION 6: PRIVILEGE AND PROTECTION

6.1 Privilege Log:
- The parties will prepare and exchange privilege logs [as documents are withheld during rolling production / by __/__/____].
- Privilege log format: [standard categorical / document-by-document / clawback-only log / ________________________________].
- The log will include: document date, author, recipients, description of subject matter (sufficient to evaluate the claim), and privilege asserted, without disclosing privileged content.

6.2 Federal Rule of Evidence 502(d) Order:
- The parties [agree / have stipulated] to seek entry of a court order under FRE 502(d) to protect against waiver of attorney-client privilege or work product protection arising from inadvertent disclosure.
- ☐ A proposed FRE 502(d) order is attached as Exhibit 2.

6.3 Clawback Procedure: In the event of inadvertent disclosure of privileged or protected material:
(a) The producing party shall notify the receiving party in writing within [10 / 30] days of discovery of the inadvertent disclosure;
(b) The receiving party shall promptly return or certify destruction of the disclosed material and any copies;
(c) The receiving party shall not use the material for any purpose pending resolution of any dispute regarding the privilege claim.

6.4 Proposed Protective Order:
- ☐ The parties agree to seek a Stipulated Protective Order governing the treatment of confidential, highly confidential, and attorneys'-eyes-only materials.
- ☐ A proposed Protective Order is attached as Exhibit 3.
- Anticipated confidentiality designations: [CONFIDENTIAL / HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY / HIGHLY CONFIDENTIAL — SOURCE CODE / ________________________________].

SECTION 7: PROPOSED DISCOVERY PLAN

7.1 Scope and Phasing:
- Discovery will cover the following subjects: [________________________________].
- ☐ Discovery will proceed in two phases: Phase 1 (liability) through [__/__/____]; Phase 2 (damages) thereafter, with Phase 2 to begin [upon conclusion of Phase 1 / upon filing of dispositive motions / ________________________________].
- ☐ No phasing; all discovery to proceed simultaneously.

7.2 Written Discovery:

7.3 Depositions:
- Maximum fact depositions per side: [____] (FRCP 30(a)(2)(A)(i) default limit: 10)
- Each deposition shall not exceed [7 / ____] hours on the record (FRCP 30(d)(1))
- 30(b)(6) corporate representative topics to be served no later than [__/__/____]
- Remote depositions: [Permitted by agreement / Permitted upon order of the Court / ________________________________]
- Expert depositions: [____] hours per expert deponent

7.4 Expert Discovery:
- Opening expert reports: by [__/__/____]
- Rebuttal expert reports: by [__/__/____] ([____] days after opening reports)
- Expert depositions to be completed by: [__/__/____]
- (Note: Expert reports must comply with FRCP 26(a)(2)(B) for retained experts and FRCP 26(a)(2)(C) for non-retained experts.)

7.5 Discovery Completion: All fact discovery to be completed by [__/__/____] (the "Fact Discovery Cutoff"). After this date, no new discovery requests may be propounded, except upon stipulation or Court order.

SECTION 8: PROPOSED CASE SCHEDULE

The parties jointly propose the following schedule, subject to Court approval:

Note: District-specific local rules may impose different or additional scheduling requirements. SDNY: Individual judge standing orders; NDCA: Patent Local Rules apply if patent case; NDIL: Standing Order on ESI; EDPA: Local Rule 26.1. Confirm applicable local rules before submitting.

SECTION 9: PROPORTIONALITY ANALYSIS (FRCP 26(b)(1))

9.1 Pursuant to the 2015 amendments to FRCP 26(b)(1), the parties have considered the following factors in formulating this discovery plan:

(a) Importance of issues at stake: [________________________________]
(b) Amount in controversy: Estimated at $[____________________]
(c) Parties' relative access to relevant information: [________________________________]
(d) Parties' resources: [________________________________]
(e) Importance of the discovery in resolving the issues: [________________________________]
(f) Burden or expense vs. likely benefit: [________________________________]

9.2 The parties have agreed to the discovery limits set forth in Section 7 above as proportional to the needs of the case.

SECTION 10: ALTERNATIVE DISPUTE RESOLUTION (ADR)

10.1 ADR Discussion: The parties have discussed the possibility of resolving this matter through ADR.

10.2 Selected ADR Mechanism:
☐ Early neutral evaluation
☐ Mediation before a private mediator or through the Court's mediation program
☐ Settlement conference before a Magistrate Judge
☐ Arbitration (binding / non-binding)
☐ The parties have not agreed to ADR at this time; however, the parties will revisit ADR after the close of fact discovery.
☐ Other: [________________________________]

10.3 ADR Timeline: If ADR is selected, the parties propose to complete ADR no later than [__/__/____], or within [____] days [after the close of fact discovery / after initial dispositive motions are resolved / ________________________________].

10.4 Settlement Status: [Brief description of any settlement discussions or offers to date, or state "None to date."]

SECTION 11: OTHER MATTERS

11.1 Modification of Default Discovery Rules: The parties request the following modifications from FRCP defaults:
- [Increase/decrease in number of interrogatories / depositions / other: ________________________________]
- [________________________________]

11.2 Local Rule Deviations: The following local rule requirements necessitate deviations from this plan: [None / ________________________________].

11.3 Related Criminal, Bankruptcy, or Regulatory Matters: [None / The following related proceedings may affect the schedule or discovery: ________________________________.]

11.4 Anticipated Discovery Disputes: [None anticipated / The parties anticipate the following potential disputes: ________________________________.] The parties agree to meet and confer in good faith before bringing any discovery dispute to the Court.

11.5 Trial Preferences: ☐ Jury Trial ☐ Bench Trial. Estimated trial length: [____] days. Plaintiff: [requests / does not request] trial by jury. Defendant: [requests / does not request] trial by jury.

11.6 Consent to Magistrate Judge Jurisdiction: ☐ All parties consent to proceed before a United States Magistrate Judge for all purposes, including trial and entry of final judgment, pursuant to 28 U.S.C. § 636(c). ☐ The parties do not consent to Magistrate Judge jurisdiction.

SECTION 12: SIGNATURES

Submitted jointly by counsel for all parties:

Dated: [__/__/____]

Counsel for Plaintiff [________________________________]:

[________________________________]
[ATTORNEY NAME], [Bar No. ____]
[LAW FIRM NAME]
[ADDRESS]
[CITY, STATE ZIP]
Telephone: ([____]) [____-________]
Email: [________________________________]

Counsel for Defendant [________________________________]:

[________________________________]
[ATTORNEY NAME], [Bar No. ____]
[LAW FIRM NAME]
[ADDRESS]
[CITY, STATE ZIP]
Telephone: ([____]) [____-________]
Email: [________________________________]

Counsel for [Additional Party ________________________________]:

[________________________________]
[ATTORNEY NAME], [Bar No. ____]
[LAW FIRM NAME]
[ADDRESS]
[CITY, STATE ZIP]
Telephone: ([____]) [____-________]
Email: [________________________________]

Attachments (as applicable):
- Exhibit 1: Proposed ESI Search Terms
- Exhibit 2: Proposed FRE 502(d) Order
- Exhibit 3: Proposed Stipulated Protective Order
- Exhibit 4: Proposed Scheduling Order (if required separately from this Report)

Sources and References:
- Fed. R. Civ. P. 26(f): https://www.law.cornell.edu/rules/frcp/rule_26
- Fed. R. Civ. P. 16(b) (scheduling order)
- Fed. R. Evid. 502(d) (inadvertent waiver and clawback orders)
- 2015 FRCP Amendments (proportionality): https://www.americanbar.org/groups/business_law/resources/business-law-today/2016-february/new-amendments-to-the-federal-rules-of-civil-procedure/
- Proportionality and the Scope of Discovery, Zapproved: https://zapproved.com/blog/what-is-proportionality/
- NDCA ESI Standing Order: http://cand.uscourts.gov/eDiscovery
- SDNY Individual Practices: https://nysd.uscourts.gov/judges
- NDIL Standing Order on ESI: https://www.ilnd.uscourts.gov