Rule 26(f) Report: Contents, Deadlines, and Disagreements

A Rule 26(f) report is the written discovery plan that the parties in a federal civil lawsuit jointly prepare and file with the court within 14 days after their Rule 26(f) conference. It tells the judge how the parties propose to handle initial disclosures, the scope and timing of discovery, changes to default discovery limits, privilege issues, electronically stored information, and expert witness deadlines. The court uses it as the basis for the scheduling order that will govern the case.

When the Report Is Due and Who Files It

The report is due within 14 days after the Rule 26(f) conference. The conference itself must happen as soon as practicable and no later than 21 days before the court’s scheduling conference or the date a scheduling order is due under Rule 16(b).¹

Attorneys of record and any unrepresented parties who have appeared share joint responsibility for arranging the conference and submitting the report. In practice one lawyer usually drafts it, circulates it for review, and files it through the court’s electronic filing system after everyone signs off.¹

One detail worth keeping in mind before the conference happens: no party may seek discovery from any source until the Rule 26(f) conference has taken place, unless a rule authorizes early discovery, the parties stipulate otherwise, or the court orders it. Serving interrogatories or noticing depositions ahead of the conference is a procedural misstep.¹

What the Report Must Contain

The rule lists specific topics the parties must address. Each one turns the conference discussion into a concrete proposal for the court.

Initial Disclosure Status

The report states whether the initial disclosures under Rule 26(a)(1) have already been exchanged or when they will be. The default deadline is 14 days after the Rule 26(f) conference, though the parties can agree on a different timeline or the court can set one. If either side wants to modify what has to be disclosed, that proposal goes in the report.¹

Discovery Subjects, Timing, and Phasing

The plan must identify the subjects on which discovery will be needed, when discovery should be completed, and whether it should be conducted in phases or focused on particular issues first. Phased discovery is common when an early legal issue, like a statute of limitations defense, could narrow the case. If phasing is proposed, spell out what each phase covers and what triggers the next.¹

Changes to Default Discovery Limits

The Federal Rules set baseline limits that the parties can modify by agreement or court order. The report must identify any changes the parties want. The defaults are:

Complex cases often need higher limits; smaller disputes may benefit from tighter ones. If the parties agree, the court will typically adopt the modified numbers. If they disagree, the report should lay out each position and let the judge decide.¹

Privilege and Work Product

The report addresses how the parties will handle claims of privilege or work product protection, including the timing and method for privilege logs and what happens when privileged material is produced by accident. Parties commonly negotiate clawback agreements that let the producing party recall inadvertently disclosed material without waiving privilege. When incorporated into a court order under Federal Rule of Evidence 502, these agreements bind even third parties who later obtain the material.⁴ Locking this in before production starts avoids exhaustive pre-production review.¹

Electronically Stored Information

ESI gets its own set of issues in the report. In most modern cases the volume of electronic data far outweighs paper, and unresolved ESI questions turn into expensive fights later.¹

The parties should cover:

What ESI needs to be preserved and which sources will be searched. That means identifying custodians, data types (email, messaging platforms, shared drives, cloud storage, databases), and the relevant time frame. Preservation duties usually attach when litigation is reasonably anticipated, often well before the conference, but the report confirms what has been done and flags any gaps.
The form of production. Native format (the original file type, such as.docx or.xlsx) preserves embedded data like spreadsheet formulas and is often cheaper to produce. Image format (typically TIFF or PDF with a separate text file) is easier to stamp with confidentiality designations and Bates numbers.¹
Search methodology. Rule 26(f) does not prescribe a protocol, but experienced practitioners use the conference to agree on keyword terms, date filters, custodian lists, and whether technology-assisted review will be used. Agreeing upfront heads off later challenges to the adequacy of a party’s search.
Metadata. Fields like sender, recipient, date sent, file path, and last-modified date give context the document text alone does not. The report should identify which metadata fields will accompany productions and whether a load file will be included.

Expert Witness Scheduling

Expert deadlines shape the back half of discovery, so they belong in the report. By default, expert disclosures are due at least 90 days before trial or the trial-ready date, and rebuttal expert disclosures (limited to contradicting or rebutting the other side’s expert) are due within 30 days after the opposing disclosure.¹

An expert cannot be deposed until after their written report is provided, which creates a sequencing dependency.¹ In cases with competing experts, initial disclosures through rebuttal disclosures through depositions can run several months. Propose realistic dates the first time and you avoid extension motions later.

When the Parties Don’t Agree

Full agreement is not required to file the report. The parties are expected to try in good faith, but where they cannot reach consensus, the report should identify the areas of agreement and set out each side’s competing proposal on the disputed points so the court can resolve them.¹

Local Rules and Judge-Specific Requirements

Many district courts have local rules that add to the federal requirements. Some judges require a specific template, and others add topics beyond those listed in Rule 26(f), such as consent to trial before a magistrate judge or the parties’ views on alternative dispute resolution. Check the local rules and the assigned judge’s individual practices before drafting. Missing a local requirement causes the same problems as missing a federal one.

How the Court Uses the Report

Once filed, the report is the foundation for the scheduling order the judge issues under Rule 16(b). The scheduling order sets firm deadlines for joining additional parties, amending pleadings, completing discovery, and filing dispositive motions. Courts must issue it as soon as practicable, and generally within the earlier of 90 days after any defendant has been served or 60 days after any defendant has appeared.⁵

Because the scheduling order draws so directly from the report, a well-drafted report gives the parties significant influence over the case timeline. Propose a 10-month discovery period that the court has no reason to question and 10 months is likely what you get. A vague report forces the court to fill the gaps on its own.⁵

Cases That Don’t Require a Report

Several categories of federal case are exempt from initial disclosures under Rule 26(a)(1)(B), and because the Rule 26(f) conference obligation is tied to those disclosures, exempt cases do not require a conference or report. The exempt categories include administrative record reviews, federal in rem forfeitures, habeas and other challenges to criminal convictions or sentences, pro se prisoner actions, actions to enforce or quash administrative summonses or subpoenas, government suits to recover benefit payments or federally guaranteed student loans, proceedings ancillary to a case in another court, and actions to enforce arbitration awards. A court can also order that the conference be skipped in an individual case.¹

Sanctions for Not Participating

Skipping the conference or refusing to engage in good faith carries real consequences. Under Rule 37(f), if a party or attorney fails to participate in good faith in developing and submitting the proposed discovery plan, the court can order that party or attorney to pay the other side’s reasonable expenses, including attorney’s fees, caused by the failure. The court must give the offending party an opportunity to be heard first.⁶

1
Cornell Law School. Federal Rules of Civil Procedure Rule 26 – Duty to Disclose; General Provisions Governing Discovery
2
Cornell Law School. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination
3
Cornell Law School. Federal Rules of Civil Procedure Rule 33 – Interrogatories to Parties
4
Cornell Law School. Federal Rules of Evidence Rule 502 – Attorney-Client Privilege and Work Product; Limitations on Waiver
5
Federal Rules of Civil Procedure. Rule 16 – Pretrial Conferences; Scheduling; Management
6
Cornell Law School. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions