Federal Rule 26(f) Report and Discovery Plan

FEDERAL RULE 26(f) REPORT AND DISCOVERY PLAN

Submitted Pursuant to Fed. R. Civ. P. 26(f) and Applicable Local Rules

COURT CAPTION

UNITED STATES DISTRICT COURT
FOR THE [________________________________] DISTRICT OF [________________________________]

REPORT OF PARTIES' PLANNING MEETING AND PROPOSED DISCOVERY PLAN
(Fed. R. Civ. P. 26(f))

1. RULE 26(f) CONFERENCE DETAILS

Conference Information

Pursuant to Fed. R. Civ. P. 26(f)(1), the parties conferred as soon as practicable — and at least 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b). Under Rule 16(b)(2), the court must issue the scheduling order within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared, unless the judge finds good cause for delay. Under Rule 26(f)(2), the parties must submit this written report to the court within 14 days after the conference. The details of the conference are as follows:

Participants

Conference Agenda

The parties discussed the following topics as required by Rule 26(f)(2):

☐ Nature and basis of claims and defenses
☐ Possibilities for prompt settlement or resolution
☐ Arrangements for initial disclosures under Rule 26(a)(1)
☐ Preservation of discoverable information
☐ Development of a proposed discovery plan
☐ Whether the Court should enter a Rule 502(d) order regarding privilege
☐ Whether the parties should seek a protective order under Rule 26(c)
☐ Subjects for discussion at the scheduling conference under Rule 16(b)

Rule 26(f)(3) Required Topics — Crosswalk

This Report addresses each of the six topics required by Fed. R. Civ. P. 26(f)(3)(A)–(F) at the sections indicated below:

2. CASE OVERVIEW

Nature of the Action

[________________________________]
(Briefly describe the nature of the action, e.g., breach of contract, patent infringement, employment discrimination, products liability, securities fraud.)

Claims and Defenses

Plaintiff's Claims:

1. [________________________________]
2. [________________________________]
3. [________________________________]

Defendant's Defenses:

1. [________________________________]
2. [________________________________]
3. [________________________________]

Defendant's Counterclaims (if any):

1. [________________________________]
2. [________________________________]

Key Factual Issues

1. [________________________________]
2. [________________________________]
3. [________________________________]

Key Legal Issues

1. [________________________________]
2. [________________________________]
3. [________________________________]

Related Cases

☐ There are no related cases, arbitrations, or administrative proceedings.
☐ The following related matters are pending:

3. INITIAL DISCLOSURES — RULE 26(a)(1)

Required Disclosure Categories

Under Fed. R. Civ. P. 26(a)(1)(A), each party must provide to the other parties, without awaiting a discovery request:

(i) Individuals Likely to Have Discoverable Information:
The name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.

(ii) Documents and ESI:
A copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.

(iii) Damages Computation:
A computation of each category of damages claimed by the disclosing party, along with the documents or other evidentiary material on which each computation is based, including materials bearing on the nature and extent of injuries suffered.

(iv) Insurance Agreements:
Any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Disclosure Schedule

Exemptions from Initial Disclosure

☐ This action falls within an exempt category under Rule 26(a)(1)(B) (e.g., administrative review action, forfeiture action, habeas corpus petition, pro se prisoner litigation).
☐ No exemptions apply; full initial disclosures are required.

4. SCOPE OF DISCOVERY — PROPORTIONALITY — RULE 26(b)(1)

General Scope

Under Fed. R. Civ. P. 26(b)(1), parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering:

1. The importance of the issues at stake in the action;
2. The amount in controversy;
3. The parties' relative access to relevant information;
4. The parties' resources;
5. The importance of the discovery in resolving the issues; and
6. Whether the burden or expense of the proposed discovery outweighs its likely benefit.

Agreed Scope of Discovery

The parties have agreed that discovery in this action will encompass:

Subject Matter:
[________________________________]

Date Range:
From [__/__/____] through [__/__/____].

Phased Discovery:
☐ Discovery will not be phased.
☐ Discovery will proceed in the following phases:

• Phase 1: [________________________________] (deadline: [__/__/____])
• Phase 2: [________________________________] (deadline: [__/__/____])
• Phase 3: [________________________________] (deadline: [__/__/____])

5. WRITTEN DISCOVERY PLAN

Interrogatories (Rule 33)

Requests for Production (Rule 34)

Requests for Admission (Rule 36)

Third-Party Discovery

☐ Third-party discovery by subpoena under Rule 45 is anticipated.
☐ Third-party discovery is not anticipated at this time.

Anticipated third-party subpoenas:

6. DEPOSITION PLAN

Fact Depositions

Expert Depositions

7. ELECTRONICALLY STORED INFORMATION (ESI) PLAN

7.1 Sources of ESI

The parties have identified the following categories of ESI that are reasonably anticipated to contain discoverable information:

☐ Email (including attachments)
☐ Documents stored on network file servers / shared drives
☐ Cloud-based storage (e.g., OneDrive, Google Drive, SharePoint, Dropbox)
☐ Messaging and collaboration platforms (e.g., Slack, Microsoft Teams, WhatsApp)
☐ Text messages / SMS / iMessage
☐ Social media accounts and direct messages
☐ Databases and structured data
☐ Financial and accounting systems (e.g., SAP, QuickBooks, Oracle)
☐ Customer relationship management (CRM) systems (e.g., Salesforce)
☐ Mobile devices (phones, tablets)
☐ Voicemail recordings
☐ Backup tapes and disaster recovery systems
☐ Other: [________________________________]

7.2 Custodians

The parties have agreed to collect and search ESI from the following custodians:

Plaintiff's Custodians:

Defendant's Custodians:

7.3 Search Methodology

☐ Keyword searching. The parties will negotiate and agree upon a list of search terms to be applied to ESI. Proposed terms to be exchanged by [__/__/____].

☐ Technology-Assisted Review (TAR) / Continuous Active Learning (CAL). The parties agree to use predictive coding or machine-learning tools for document review consistent with Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012) (approving use of predictive coding), and Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125 (S.D.N.Y. 2015). The parties will confer regarding seed sets, training rounds, validation protocols, and statistical sampling methodology.

☐ Combination approach. The parties will use keyword filters to reduce the initial population, followed by TAR/CAL for relevance review.

☐ Date range filters. ESI will be limited to documents dated from [__/__/____] to [__/__/____].

☐ Other methodology: [________________________________]

7.4 Production Format

7.5 Inaccessible ESI — Rule 26(b)(2)(B)

Under Rule 26(b)(2)(B), a party need not provide discovery of ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost.

☐ No party has identified inaccessible ESI sources at this time.
☐ The following ESI sources have been identified as not reasonably accessible:

☐ The parties agree to address cost-sharing for inaccessible ESI as follows: [________________________________].

7.6 Preservation

The parties confirm that litigation hold notices were issued and that discoverable information is being preserved:

Preservation Obligations:

• The parties acknowledge their obligations under Fed. R. Civ. P. 37(e) to preserve ESI that is relevant to the claims and defenses and that should be preserved in the anticipation or conduct of litigation.
• Failure to take reasonable steps to preserve ESI may result in sanctions, including adverse inference instructions or case-dispositive sanctions under Rule 37(e)(2), upon a finding that the party acted with intent to deprive.
• The parties will notify each other promptly of any preservation issues, including the loss or destruction of potentially relevant ESI.

8. PRIVILEGE AND WORK PRODUCT PROTECTION

8.1 Privilege Log Requirements — Rule 26(b)(5)(A)

When a party withholds information otherwise discoverable by claiming privilege or work product protection, the party must:

1. Expressly make the claim; and
2. Describe the nature of the documents, communications, or tangible things not produced in a manner that, without revealing the information itself privileged or protected, will enable other parties to assess the claim.

Privilege Log Format and Timing

8.2 Clawback Procedure and Proposed Fed. R. Evid. 502(d) Order

Under Fed. R. Evid. 502(d), a federal court may order that the attorney-client privilege or work-product protection is not waived by disclosure connected with the litigation pending before the court, and the disclosure is also not a waiver in any other federal or state proceeding. A 502(d) order operates regardless of the care taken by the producing party in pre-production review (i.e., a "no-fault" clawback), and is therefore broader than the inadvertent-disclosure protections of Rule 502(b) and Fed. R. Civ. P. 26(b)(5)(B).

Proposed Rule 502(d) Order — Substantive Terms. The parties propose, and respectfully request that the Court enter, a Rule 502(d) Order containing substantially the following provisions:

1. No waiver. The production of any document, communication, or information protected by the attorney-client privilege or work-product doctrine — whether inadvertent or otherwise — shall not constitute a waiver of any applicable privilege or protection in this litigation or in any other federal or state proceeding.
2. Independent of Rule 502(b). The protections of this Order apply regardless of whether the producing party took reasonable steps to prevent disclosure or to rectify the error; nothing in this Order requires any party to engage in pre-production privilege review of any specified scope.

3. Clawback procedure. Upon receipt of written notice from the producing party identifying inadvertently produced privileged or protected material by Bates number (or other reasonable identification), the receiving party shall, within 5 business days:
   a. Return, sequester, or destroy the specified material and all copies (including derivative work product, summaries, and notes incorporating the material);
   b. Take reasonable steps to retrieve the material from any third party to whom it was disclosed;
   c. Refrain from using or disclosing the material for any purpose pending resolution of the privilege claim.

4. Privilege log supplementation. The producing party shall include the clawed-back material on a supplemental privilege log within [____] days of the clawback notice.

5. Challenge procedure. The receiving party may challenge the privilege designation by motion. The material shall be submitted to the Court for in camera review pending resolution. The receiving party shall not argue waiver based solely on the production.

Election:

☐ The parties request entry of a Rule 502(d) Order as described above. A proposed Order is attached as Exhibit [____].

☐ The parties decline to seek a Rule 502(d) Order and will rely on Rule 502(b) and the clawback procedure of Fed. R. Civ. P. 26(b)(5)(B).

9. PROTECTIVE ORDER — RULE 26(c)

☐ The parties do not anticipate the need for a protective order.

☐ The parties have agreed to a stipulated protective order and will submit it to the Court by [__/__/____].

☐ A proposed protective order is attached hereto as Exhibit [____].

Confidentiality Designations

If a protective order is entered, the parties propose the following designation tiers:

Privacy and Data Protection

☐ The parties anticipate production of documents containing HIPAA-protected health information, PII, or other regulated personal data.
☐ The parties agree to the following redaction protocol: [________________________________].
☐ The protective order will include provisions for handling of PII, PHI, or other sensitive data.

10. EXPERT DISCOVERY — RULE 26(a)(2)

Expert Disclosure Schedule

Expert Report Requirements — Rule 26(a)(2)(B)

Expert reports must contain:

1. A complete statement of all opinions the witness will express and the basis and reasons for them;
2. The facts or data considered by the witness in forming them;
3. Any exhibits that will be used to summarize or support them;
4. The witness's qualifications, including publications from the prior 10 years;
5. A list of all other cases in which the witness testified at trial or by deposition within the prior 4 years; and
6. A statement of the compensation to be paid for the study and testimony.

11. PROPOSED SCHEDULING ORDER — RULE 16(b)

The parties propose the following schedule:

Scheduling Note

Under Rule 16(b)(4), a scheduling order may be modified only for good cause and with the judge's consent. The parties should propose realistic deadlines that account for the complexity and scope of the case.

12. ALTERNATIVE DISPUTE RESOLUTION (ADR)

ADR Selection

☐ Mediation. The parties agree to participate in mediation.

• Mediator: [________________________________] or to be selected by [__/__/____]
• Mediation to be completed by: [__/__/____]
• Cost allocation: [________________________________]

☐ Early Neutral Evaluation (ENE). The parties request referral to an ENE program.

☐ Settlement Conference. The parties request a settlement conference before the Magistrate Judge.

• Proposed date: [__/__/____]

☐ Arbitration. The parties agree to binding or non-binding arbitration.

☐ No ADR at this time. The parties do not believe ADR would be productive at this stage but will reconsider after [________________________________].

Settlement Discussions

☐ The parties have not engaged in settlement discussions.
☐ The parties have engaged in preliminary settlement discussions. Summary: [________________________________].

13. OTHER MATTERS

Local Rule Variations

☐ The applicable local rules require the following deviations from or additions to the default discovery procedures: [________________________________].

☐ The assigned judge's standing order requires the following: [________________________________].

Proposed Deviations from Default Discovery Limits

☐ No deviations from the default limits under Rules 30, 33, and 36 are proposed.
☐ The following deviations are proposed:

Related Proceedings

☐ No related criminal, bankruptcy, or administrative matters affect the schedule.
☐ The following related proceedings may affect the schedule: [________________________________].

Consent to Magistrate Judge

☐ All parties consent to the exercise of jurisdiction by the Magistrate Judge for all proceedings, including trial and entry of final judgment, pursuant to 28 U.S.C. § 636(c).
☐ The parties do not consent.

14. SIGNATURES

The undersigned counsel certify that they have met and conferred in good faith as required by Fed. R. Civ. P. 26(f) and that this Report and Proposed Discovery Plan reflects the agreements reached and any unresolved disputes.

Date: [__/__/____]

For Plaintiff(s):

[________________________________]
Signature

[________________________________]
Printed Name, Bar No.

[________________________________]
Firm Name

[________________________________]
Address

[________________________________]
Telephone / Email

For Defendant(s):

[________________________________]
Signature

[________________________________]
Printed Name, Bar No.

[________________________________]
Firm Name

[________________________________]
Address

[________________________________]
Telephone / Email

For [Additional Party]:

[________________________________]
Signature

[________________________________]
Printed Name, Bar No.

[________________________________]
Firm Name

[________________________________]
Address

[________________________________]
Telephone / Email

15. ATTACHMENTS

☐ Proposed Scheduling Order
☐ Proposed Protective Order (Stipulated)
☐ Proposed Rule 502(d) Order
☐ Proposed ESI Protocol
☐ Certificate of Service
☐ Other: [________________________________]

PRACTICE TIPS FOR RULE 26(f) CONFERENCES

Pre-Conference Preparation

1. Prepare a data map. Before the Rule 26(f) conference, prepare an internal data map identifying all sources of potentially relevant information, including email systems, file servers, cloud storage, messaging platforms, and databases. This facilitates productive discussion about custodians, search methodology, and production format.

2. Issue litigation holds early. Litigation holds should be issued as soon as litigation is reasonably anticipated — not at the time of the Rule 26(f) conference. Under Rule 37(e), failure to take reasonable steps to preserve ESI can result in severe sanctions, including adverse inference instructions and case-dispositive measures.

3. Know the local rules. Every federal district has local rules that supplement Rule 26(f). Many districts have specific forms, ESI protocols, or guidelines that must be followed. Check the court's website and any judge-specific standing orders.

4. Bring proposed custodian and search term lists. Arrive at the conference with a draft list of proposed custodians and search terms (or TAR protocols). This demonstrates good faith and moves the discussion forward.

Key Conference Topics

5. Proportionality is the governing principle. The 2015 amendments to Rule 26(b)(1) embedded proportionality into the scope of discovery. Every discovery request must be both relevant and proportional to the needs of the case. Use the six proportionality factors as a framework for all discovery disputes.

6. ESI format matters. The production format (TIFF + load file vs. native vs. PDF) affects cost, usability, and review efficiency. Native format is preferable for spreadsheets and databases. TIFF + load file is standard for email and documents in complex litigation using review platforms like Relativity.

7. Negotiate a Rule 502(d) order early. A Rule 502(d) order provides that inadvertent production of privileged documents does not waive the privilege in this or any other proceeding. This reduces the cost and risk of privilege review and should be sought in virtually every case.

8. Address social media and messaging platforms. Modern discovery increasingly involves Slack, Microsoft Teams, WhatsApp, Signal, and social media. Address preservation and collection of these sources at the Rule 26(f) conference.

Post-Conference Obligations

9. 14-day report deadline. Under Rule 26(f)(2), the parties must submit the written report to the court within 14 days after the conference. The report should be detailed enough to inform the Rule 16(b) scheduling order.

10. Initial disclosures — 14 days after conference. Under Rule 26(a)(1)(C), initial disclosures are due at or within 14 days after the parties' Rule 26(f) conference, unless a different time is set by stipulation or court order.

11. Supplementation is ongoing. Under Rule 26(e), a party must supplement its disclosures and discovery responses in a timely manner if it learns that a prior disclosure or response is incomplete or incorrect. Failure to supplement may result in exclusion of evidence under Rule 37(c)(1).

12. Document everything. Keep a detailed record of all agreements reached at the Rule 26(f) conference. If disputes arise later, the court will look to the discovery plan and the parties' conduct during the conference process.

SOURCES AND REFERENCES

• Federal Rules of Civil Procedure: https://www.law.cornell.edu/rules/frcp
• Rule 26 (Full Text): https://www.law.cornell.edu/rules/frcp/rule_26
• Rule 16 (Pretrial Conferences; Scheduling; Management): https://www.law.cornell.edu/rules/frcp/rule_16
• Rule 37(e) (Failure to Preserve ESI): https://www.law.cornell.edu/rules/frcp/rule_37
• Federal Rules of Evidence 502: https://www.law.cornell.edu/rules/fre/rule_502
• The Sedona Conference Principles and Commentary on ESI Discovery
• Advisory Committee Notes to 2015 Amendments (Proportionality)

This template is designed for use by attorneys in federal civil litigation for submission under Fed. R. Civ. P. 26(f). Each federal district court has local rules and judge-specific standing orders that may modify these requirements. Always consult the applicable local rules, the assigned judge's individual practices, and any district-specific ESI protocols before filing.