Rule 26(f) Conference and Meet and Confer Requirements

A Rule 26(f) conference is the meet-and-confer that opposing parties in a federal civil lawsuit must hold before the judge sets the case schedule, and its purpose is to produce a joint written discovery plan covering disclosures, electronically stored information, privilege handling, and the scope and timing of discovery. Under the Federal Rules of Civil Procedure, the conference must take place at least 21 days before the court holds a Rule 16(b) scheduling conference or issues its scheduling order.¹ Skip it or phone it in, and Rule 37(f) exposes you to paying the other side’s attorney’s fees.

When the Conference Must Happen

The 21-day clock runs backward from the court’s scheduling deadline. Under Rule 16(b)(2), the judge must issue a scheduling order within 90 days after any defendant is served or 60 days after any defendant has appeared, whichever comes first.² So if the court sets a scheduling conference for July 1, the parties must confer no later than June 10. Most judges issue a case management order shortly after a defendant answers or otherwise appears, and that order usually specifies when the parties need to meet.

You do not have to wait for a court order to begin. Under Rule 26(d)(2), a party can deliver Rule 34 document requests more than 21 days after the complaint is served on a party, even before the Rule 26(f) conference takes place. Those requests are treated as served at the time of the conference itself, so the responding party’s production clock starts running from the conference date.³ This lets you signal what documents you need and arrive at the conference ready to talk about production logistics.

Who Must Attend and How the Conference Works

Responsibility falls on attorneys of record and any unrepresented parties who have appeared in the case. They are jointly responsible for arranging the conference, negotiating the discovery plan in good faith, and filing the written report afterward.¹ The rule does not require individual clients or corporate representatives to attend, though having someone with decision-making authority available by phone can help resolve sticking points on the spot.

The conference does not need to be in person. The 2000 Advisory Committee Notes explain that the rule was amended to require a “conference” rather than a “meeting” so that attorneys in distant cities would not have to travel for what can be a productive phone or video call. A judge can order in-person attendance in a specific case, but standing local rules requiring in-person conferences across the board are not permitted.¹

What the Parties Must Discuss

Rule 26(f)(2) lays out substantive ground the parties must cover: the nature and basis of each side’s claims and defenses, whether early settlement is realistic, how initial disclosures will be handled, any issues around preserving discoverable information, and the framework for the discovery plan.¹ The settlement discussion catches some parties off guard, but the rule explicitly requires it. Even if nobody expects to settle this early, a brief conversation about resolution possibilities can set the tone for productive negotiations later.

Initial Disclosures

Under Rule 26(a)(1)(A), each party must provide four categories of information without waiting for a formal discovery request:⁴

Witnesses likely to have relevant information, with their name, address, phone number if known, and the topics they know about.
A copy or description of all documents, electronically stored information, and physical items in the party’s possession that support its claims or defenses.
A breakdown of each category of claimed damages, including the underlying documents used to compute them.
Any insurance agreement that could cover part or all of a judgment.

These disclosures are due within 14 days after the Rule 26(f) conference unless the parties agree to a different schedule or the court orders one.⁴ At the conference, confirm when disclosures will be exchanged and flag any objections. If a party believes initial disclosures are inappropriate for the case, that objection has to be raised during the conference and included in the proposed discovery plan.

Electronically Stored Information

ESI discussions are where the conference earns its keep. The parties need to identify where relevant data lives: cloud servers, employee laptops, mobile devices, legacy systems, backup tapes. They should discuss which sources are reasonably accessible and which would be prohibitively expensive to search. The 2006 Advisory Committee Notes specifically flag metadata as a topic for the conference, since the parties need to decide whether file-creation dates, edit histories, and other background data should be preserved and produced.¹

Agreeing on production formats early prevents expensive fights later. If one side produces thousands of spreadsheets as flat PDFs, stripping out formulas and sort functions, the other side will file a motion to compel native-format production. Deciding upfront whether files should be produced as searchable PDFs, native files, or some hybrid is one of the most practically important outcomes of the conference. Discuss keyword search terms and search methodologies for identifying responsive documents as well.

Privilege Protocols and Clawback Agreements

When large volumes of documents are produced, privileged materials sometimes slip through. Rule 26(b)(5)(A) requires any party withholding documents on privilege grounds to describe those documents in enough detail for the other side to evaluate the claim without revealing the protected content.⁵ The conference is the time to agree on the format of privilege logs and a schedule for producing them. Rolling privilege log production, rather than dumping everything at the close of discovery, surfaces disputes earlier when they are easier to resolve.

The parties should also negotiate a clawback agreement under Federal Rule of Evidence 502(d). A court order under this rule provides that accidentally producing a privileged document does not waive the privilege, regardless of how careless the disclosure was.⁶ Getting this order in place at the start of the case reduces the cost of pre-production privilege review, because attorneys do not need to examine every page with the same intensity when an accidental disclosure will not be catastrophic. The discovery plan must specifically address whether the parties intend to ask the court for a Rule 502(d) order.¹

Proportionality

Every discovery discussion at the conference should be filtered through proportionality. Under Rule 26(b)(1), discovery is limited to matters that are relevant to a claim or defense and proportional to the needs of the case. The rule lists six factors for measuring proportionality:⁵

The importance of the issues at stake
The amount in controversy
Each party’s relative access to relevant information
The parties’ resources
How important the discovery is to resolving the dispute
Whether the burden or expense outweighs the likely benefit

These factors matter most when one side wants to search data sources that are expensive to access. The responding party generally bears its own production costs, and courts are reluctant to shift them to the requesting party. But Rule 26(c)(1)(B) allows the court to issue a protective order allocating expenses when circumstances justify it, and the conference is the right time to flag those concerns.⁷ If searching archived backup tapes will cost tens of thousands of dollars and yield marginal results, raise proportionality at the conference rather than litigating it later.

The Written Discovery Plan

Within 14 days after the conference, the parties must file a joint written report outlining their proposed discovery plan.¹ The plan must cover six categories:

Any proposed changes to the timing or content of initial disclosures, including when they were or will be made.
The subjects on which discovery is needed, when it should be completed, and whether it will proceed in phases or focus on specific issues.
Issues about preserving and producing electronically stored information, including production formats.
How privilege claims will be documented, the schedule for privilege logs, and whether a Rule 502(d) order will be requested.
Any proposed changes to standard discovery limits, such as the default cap of ten depositions per side under Rule 30.⁸
Any additional protective orders or case management orders the parties want the court to enter.

The plan should also address the timing of expert witness disclosures and a target date for trial readiness. If a party anticipates seeking a protective order to keep trade secrets or sensitive commercial information under seal, the plan is the place to flag it. Under Rule 26(c)(1)(G), the court can order that trade secrets or confidential research not be disclosed or be disclosed only in a limited way, but the party seeking protection must demonstrate good cause and certify that it attempted to resolve the issue with the opposing side first.⁷

When the Parties Disagree

The plan is a joint filing, but the parties do not need to agree on everything. When they cannot resolve a particular issue, the report should lay out each side’s competing proposals on that point alongside items where they do agree. The judge resolves the disputed issues at the Rule 16(b) scheduling conference or in the scheduling order. Clean competing proposals work far better than vague complaints. Judges want specificity: “Plaintiff proposes a discovery cutoff of September 30; Defendant proposes December 15 because of the volume of archived records requiring review” gives the court something to work with.

Filing and Later Modification

Most federal courts require the plan to be filed through the CM/ECF electronic filing system, with both sides reviewing and signing before submission. Many local courts provide standardized templates, though the format varies by district, so check the local rules for your court.⁹

Once the court enters its scheduling order, the deadlines are not easy to change. Rule 16(b)(4) allows modification only for good cause and with the judge’s consent.² Good cause typically means circumstances that could not have been anticipated when the schedule was set, not that a party underestimated how long discovery would take. Accuracy at the planning stage matters.

Sanctions for Failing to Participate

Rule 37(f) gives courts teeth. If a party or its attorney fails to participate in good faith in developing and submitting the discovery plan, the court can order that party or attorney to pay the reasonable expenses, including attorney’s fees, that the other side incurred because of the failure.¹⁰ The court must give the offending party a chance to be heard before imposing the sanction, but “good faith” cuts broadly. Showing up but refusing to engage on ESI issues, stonewalling on dates, or failing to prepare can all qualify as bad faith participation.

The sanction is aimed at compensating the other side for wasted effort rather than punishing the offending party. As a practical matter, the threat of paying opposing counsel’s fees for a motion to compel encourages cooperation more effectively than any judicial lecture on the spirit of the federal rules.

Cases Exempt From the Conference

Not every federal case requires a Rule 26(f) conference. Rule 26(a)(1)(E) lists categories of proceedings where mandatory disclosures and the conference requirement do not apply:⁴

Appeals from an administrative agency record
Habeas corpus petitions and other challenges to criminal convictions or sentences
Lawsuits filed without an attorney by someone in government custody
Actions to enforce or quash an administrative summons or subpoena
Government actions to recover benefit payments
Government actions to collect on a federally guaranteed student loan
Proceedings ancillary to cases in other courts
Actions to enforce an arbitration award

The common thread is that these cases involve a limited factual record that already exists or are procedurally straightforward enough that the full discovery apparatus would be overkill. In an appeal from an administrative record, the court reviews the existing record rather than allowing new evidence, so a discovery plan would serve no purpose. If your case falls into one of these categories, you can skip the conference and initial disclosures entirely, though the court retains discretion to order them in unusual circumstances.

The 2025 Amendments

Amendments to the Federal Rules that took effect on December 1, 2025, made targeted changes. Rule 26(f)(3)(D) was updated to give more structure to privilege discussions at the conference, requiring the parties to address the timing and method for documenting privilege claims and to specifically discuss whether to seek a Rule 502(d) order covering post-production privilege assertions.¹¹ Rule 16(b)(3)(B)(iv) received a parallel update, requiring the scheduling order to address privilege log timing and any agreements the parties reach for handling privilege claims after production.

The same package added Rule 16.1, which creates a dedicated framework for managing multidistrict litigation. In MDL proceedings, the transferee court must schedule an initial management conference and order the parties to meet and submit a report covering leadership counsel appointments, consolidated pleading schedules, discovery plans, and pretrial motion procedures.¹¹ For attorneys handling cases consolidated in an MDL, Rule 16.1 supplements rather than replaces the standard Rule 26(f) obligations.

1
Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Section: (f) Conference of the Parties; Planning for Discovery
2
Legal Information Institute. Federal Rules of Civil Procedure Rule 16 – Section: (b) Scheduling
3
Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Section: (d) Timing and Sequence of Discovery
4
Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Section: (a) Required Disclosures
5
Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Section: (b) Discovery Scope and Limits
6
Legal Information Institute. Federal Rules of Evidence Rule 502 – Section: Subdivision (d)
7
Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Section: (c) Protective Orders
8
Legal Information Institute. Federal Rules of Civil Procedure Rule 30 – Section: (a) When a Deposition May Be Taken
9
United States Courts. Forms
10
Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Section: (f) Failure to Participate in Framing a Discovery Plan
11
Supreme Court of the United States. Proposed Amendments to the Federal Rules of Civil Procedure