The Rule 26(f) conference gets treated like a formality by a lot of practitioners, especially in cases where the parties haven’t fully engaged with the facts yet. That’s a mistake. What gets agreed to (or fought over) in that conference shapes the scheduling order, and the scheduling order under Rule 16 is what you’ll be living with for the next year or two. Missing a deadline set at the CMO stage means filing a motion to amend under the “good cause” standard, which is harder than it sounds, and judges who feel like you’re wasting their time have long memories.
Here’s how to do this right.
Know What the Conference Actually Requires
In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person.
That’s Rule 26(f)(2), and the operative word is “confer.” A quick email exchange proposing dates and swapping proposed schedules doesn’t satisfy it. You need a real conversation about the substance of the case. Courts have sanctioned parties for phone calls that lasted ten minutes with no actual discussion of the items the rule requires.
The conference must happen at least 21 days before the scheduling conference or before the scheduling order is due under Rule 16(b). Build that deadline into your calendaring system the moment you file or appear.
Before the Call: Do Your Homework
You can’t negotiate discovery scope intelligently if you haven’t thought through your case theory. Before the 26(f) conference, you should know:
- What the key factual disputes are and where the documentary evidence likely lives
- Whether your client has a litigation hold in place and what’s been preserved
- Your rough estimate of ESI volume and where it sits (email systems, cloud storage, archived systems)
- Whether you’ll need expert witnesses, and in what areas
- Whether phased discovery makes sense (liability before damages, for instance)
- Whether you’re likely to have disputes about privilege, trade secrets, or confidential business information that will require a protective order
Coming in blind and agreeing to whatever the other side proposes is how you end up with deadlines that don’t work for your case.
The Part Courts Actually Care About: Discovery Scope and ESI
The discovery plan must address “any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced.” That’s Rule 26(f)(3)(C). In complex commercial cases, this is where the conference gets genuinely important.
Agree on production format now. Native with metadata? TIFF with load files? Searchable PDF? If you don’t nail this down, you’ll be fighting about it mid-discovery when your e-discovery vendor tells you the other side’s production is unusable. Also address custodians: which individuals’ data are you going to collect from? Get that list on the table early, because disputes over custodians become expensive if they drag into later motion practice.
The scheduling order may expressly provide for “disclosure, discovery, or preservation of electronically stored information” under Rule 16(b)(3)(B)(iii). Push to get ESI protocols incorporated directly into the CMO so they have the force of a court order.
Negotiate Hard on These Specific Items
Discovery limits. The default interrogatory limit is 25. The default deposition limit is 10. In a complex commercial case, 10 depositions is almost never enough. Ask for more now. Courts will grant reasonable expansions in the CMO without a fight. Trying to expand limits after you’ve used up your allotment requires a motion and a showing of good cause that you’ll struggle to make if the judge thinks you should have anticipated the need.
Expert disclosure deadlines. The default under Rule 26(a)(2)(D) is 90 days before trial. In most actively-managed cases, the CMO will set specific dates. Make sure you’re building in enough time between your opening expert reports and rebuttal reports. Thirty days is the default gap for rebuttal; in complicated cases, push for 45 or 60. You’ll thank yourself when you get the other side’s expert report and realize you need your expert to work through a complicated damages model.
The FRE 502(d) order. Rule 26(f)(3)(D) specifically contemplates asking the court to incorporate clawback agreements into an order under Federal Rule of Evidence 502. Do this. A 502(d) order gives you protection that a mere party agreement doesn’t: it’s enforceable even against third parties and in other proceedings. If the other side resists, explain the mutual benefit and propose language together. Most courts will sign a stipulated 502(d) order without any fuss.
Phased discovery. If liability is genuinely uncertain and damages discovery will be expensive, propose phasing. You won’t always get it, but in the right case it saves your client real money and focuses the litigation on what matters.
The Common Mistake That Haunts You at Trial
The single most damaging error practitioners make at the 26(f) stage is treating the pretrial disclosure deadlines under Rule 26(a)(3) as an afterthought. Those disclosures (witness lists, deposition designations, exhibit lists) are due at least 30 days before trial by default, and objections to exhibits or depositions not raised within 14 days of those disclosures are waived under Rule 26(a)(3)(B), except for objections under FRE 402 and 403.
That waiver provision is serious. Courts enforce it. If you want the CMO to build in a longer objection window, negotiate that now. And when you’re planning your trial prep timeline, work backward from the 30-day pretrial disclosure deadline, not from the trial date.
After the Call: The Written Report
You have 14 days after the conference to file the written discovery plan. Don’t just file whatever joint form your jurisdiction provides with everyone’s proposals listed in parallel columns of disagreement. Where you agree, say so clearly. Where you disagree, explain your position concisely and tell the judge what you want. Judges who hold scheduling conferences appreciate knowing the real disputes in advance.
Also: under Rule 16(b), the scheduling order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions. The pretrial order issued after any conference under Rule 16 is not advisory. Rule 16(d) makes clear it controls the course of the action unless the court modifies it, and modification requires the “manifest injustice” standard for final pretrial orders. Getting the CMO right at the front end is almost always easier than trying to undo a bad one later, and the sanctions available under Rule 16(f) for failing to comply with scheduling orders, including attorney’s fees, give courts real teeth to hold the line.
Treat the 26(f) conference like the strategic conversation it is, and the rest of discovery becomes a lot more manageable.