What You Need to Know About FRCP Rule 26

Posted by Alison ONeill | Tue, Oct 29, 2019

Discovery is a critical phase of any trial or lawsuit, and can make the difference between a successful case and one that goes horribly awry. Lawyers and attorneys on both sides of a lawsuit have a number of obligations to meet during the discovery process, which are extensively detailed in Rule 26 of the Federal Rules of Civil Procedure.

For something so vital to legal proceedings, discovery missteps and mistakes are more common than you might think, even with the guidelines laid out by Rule 26.

Part of that comes down to the sheer complexity and scope of litigation: On any given case, attorneys have to wade through an enormous number of documents. Rule 26 itself contains numerous parts dictating how the discovery process should unfold, what information needs to be disclosed, timelines that must be adhered to, and the responsibilities of each party, among other requirements. A single omission or misstep could be disastrous for the case, the law firm and the attorneys involved.

Digital WarRoom can streamline discovery proceedings and give lawyers a roadmap to success. Follow these steps to meet your Rule 26 requirements and develop a winning discovery plan:


What is Rule 26?

Rules for civil procedure have been codified by the federal government, establishing strict guidelines for how attorneys should proceed with discovery. Rule 26 is especially important for attorneys to review, as it lays out all the provisions that they must follow during this phase of a case.

Some of the information attorneys are expected to disclose include:

  • The names and contact information of any parties who may have knowledge of or access to discovery information that could support or contradict the fundamental claims of a case.
  • A catalog of all electronic documents and data that will be used by either party to make its case.
  • A complete breakdown of all damages sought by disclosing parties, including how those figures were determined.

There may be exceptions to these rules, but in many cases, lawyers will need to closely adhere to the steps and provisions established by electronically stored information (ESI) protocols like Rule 26 and other guidelines.


What is a Rule 26(f) conference?

Discovery plans must be available in time for both sides to review in preparation for pre-trial negotiations and conferences. Attorneys representing both parties in a lawsuit come together to share those documents and agree on the precise details of the discovery process, including the scope of discovery, at the Rule 26(f) conference.

According to the Federal Rules of Civil Procedure, meet and confer conferences must be held as soon as possible, or at least 21 days before the scheduling order is due. It’s a good idea to create a Rule 26(f) checklist so you are fully prepared to meet with opposing counsel and hammer out the terms of discovery.

Attorneys have until 60 days before the trial start date to complete discovery proceedings. There may be circumstances where the discovery duration is extended, but delays in receiving responses from all relevant parties could result in key evidence being discarded or ruled inadmissible. Opposing lawyers are likely to raise objections to any requests to extend the discovery phase beyond its accepted limits.


Never commit to discovery terms without doing your research

Discovery negotiations are a critical juncture in the lifecycle of a lawsuit, setting binding expectations for what information each side will produce. The age of electronic discovery has complicated this process somewhat for attorneys who don’t feel as comfortable managing digital documents compared with physical papers. As such, they may not fully appreciate the scope of some requests the opposing party may make of them during negotiations.

It’s extremely important that attorneys do not agree to discovery terms they don’t completely understand. Once negotiations are complete and those expectations are established, there’s no going back on them. Lawyers will be on the hook to meet those terms, regardless of how extensive they may be.

For instance, attorneys may be asked to preserve all metadata related to the case in question, which is a time-consuming and laborious task. In other circumstances, they may agree to a request for production including data that doesn’t even exist.

The law protects attorneys against overreaching discovery tactics and unrealistic requests from opposing counsel. Discovery plan proceedings are governed by some manner of negotiating agreement. Requests from the party seeking discovery need to be made in good faith and demonstrate clear purpose. For instance, the defendant cannot insistent that the plaintiff produce vast quantities of documents without them first being deemed relevant to their defense and proportional to the case.

The degree to which these agreements are formalized depends on the court itself and the local rule it follows. Even so, discovery requests need to follow rules of specificity, such as asking for email communications that pertain to the specific complaint. Any request for production must cover information and matter that is relevant for that particular case.

At the same time, attorneys shouldn’t narrow their focus too much when sitting down at the negotiation table and establishing discovery terms. Agreeing to narrow discovery parameters could prevent lawyers from using key leverage during their case because it was excluded from consideration at the outset of discovery. ESI discovery negotiations can be tricky in this regard if lawyers are unfamiliar with the logistics of data preservation and production and what constitutes a reasonable request.

It’s up to each attorney to recognize that Rule 26 measures are in place to protect their interests at the negotiating table, and require the parties to act in good faith. They don’t necessarily have to agree to unreasonable terms. The discovery dispute and negotiation process is, after all, a critical part of pretrial strategy, with both sides trying to get a competitive edge over the other.

Doing your research and due diligence to fully understand the scope of a case will insulate lawyers against fishing expeditions and help counter frivolous or vague complaints lodged by the opposing counsel.


What to include in your Rule 26 checklist

Attorneys need to be very strategic when compiling a discovery plan while following Rule 26 guidelines. The vast majority of lawsuits - by some accounts, as many as 95% - are settled before going to trial. Discovery plays a major role in the legal maneuvering that occurs throughout pretrial phases and can ultimately determine how a lawsuit is settled and which side comes out on top. Having a robust discovery plan in place can help lawyers win a summary judgement based on the irrefutable strength of their evidence.

When mapping out your discovery plan, be sure to account for the following:

  • Discovery time frame as discussed between all parties or as mandated by the court.
  • Process for conducting legal holds and preservation so that all potentially relevant information adheres to discovery rules and regulations and is admissible when litigation begins.
  • Process and issues regarding data collection.
  • Clearly defined scope of investigation.
  • Which eDiscovery vendor and solution you will be using to conduct these processes.
  • Issues relating to producing documents for the opposing party - for instance, what formats do documents need to be presented in and what metadata fields need to be produced?
  • Discovery issues relating to privilege, such as documents or information protected by attorney-client privilege.

There’s quite a lot of ground to cover, and while large firms likely have teams dedicated to producing discovery plans and documents, small or midsized firms won’t be so lucky. Discovery tasks, such as document review, production, and preservation, may be carried out by an attorney and a legal clerk, who have other caseloads to worry about in addition to their discovery obligations.

With more limited resources, attorneys at these firms need to balance their individual case objectives with maintaining manageable workloads. No one wins when lawyers spread themselves too thin.

Attorneys must keep the proportionality of each case in mind when conducting discovery proceedings. Spending dozens of billable hours painstakingly preserving metadata on a simple commercial real estate dispute, for instance, will produce diminishing returns.


Importance of discovery preparation

Establishing reasonable expectations goes a long way toward minimizing the headaches lawyers must endure adhering to ESI protocols, Rule 26 and other discovery regulations. It’s important to keep in mind that there is a pretty thin threshold to meet in order to avoid failure-to-preserve sanctions. Simply demonstrating an honest effort was made to comply with preservation demands is often enough evidence to satisfy governing bodies.

Doing your due diligence will also help address any discovery dispute that may come up, such as the opposing party filing a motion to compel if they believe produced documentation is insufficient.

When approaching your discovery plan, think of your case like a painting or other work of art. It’s more than just the some of its parts, whether you’re talking about paint and plaster in artwork or data and documentation in a lawsuit. Visualize what a successful argument looks like and what specific evidence you will need to convince a judge or jury. From there, you can start to map out what documents you will need to produce and which witnesses will need to give depositions. If you start with a clear end result in mind, you can pare down the amount of data and documentation needed to support your case.

How to streamline your discovery plan and address Rule 26

The easiest way to adhere to discovery obligations without spending an enormous amount of energy and time (ie, billable hours) hunting down documents, preserving them, and producing copies for civil procedure is to take advantage of eDiscovery tools.

Using eDiscovery software to automate and accelerate various aspects of pretrial processes can help attorneys meet their legal obligations, quickly find and produce compelling evidence, and minimize operational costs.

Platforms like Digital WarRoom’s cloud-based eDiscovery solution enable attorneys to quickly and easily load data using simple drag-and-drop interfaces, making data entry incredibly straightforward and simple. Metadata extraction can then be automated, reducing the need for monotonous and time-consuming manual processes that tie up law firm resources. This procedure also indexes all keywords contained in cataloged documents, making them readily searchable to comply with discovery production demands and requirements.

With Digital WarRoom eDiscovery software, attorneys can accelerate their discovery procedures, abiding by their legal obligations while quickly constructing the most persuasive case possible.

To find out more about meeting every requirement laid out in Rule 26, as well as developing a successful discovery plan, review Digital WarRoom’s comprehensive eDiscovery Checklist Manifesto. If you want to experience time- and cost-savings of eDiscovery software for yourself, contact Digital WarRoom today.


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Topics: Attorney Requirements

Written by Alison ONeill

Alison is a Senior Legal Consultant with Digital WarRoom. Alison has over 30 years experience in the legal field including working as a law clerk for a Pennsylvania judge, a law firm associate attorney, and Senior Legal Research Attorney. Outside of work, Alison enjoys spending time with her children, reading, crochet, and advocating for the rights of the developmentally disabled.

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