FRCP 26(f) Rule: Meet and Confer Conference Checklist

Key Takeaways

• FRCP 26(f) requires parties to meet at least 21 days before a scheduling conference to plan discovery, and initial disclosures follow 14 days after.
• IT, compliance and legal teams should coordinate before the conference to map data sources, confirm retention policies, and prepare a proposed discovery plan.
• The conference must address ESI formats, preservation obligations, privilege handling, proportionality, and cost allocation.
• Failing to prepare adequately can lead to court-imposed discovery terms, sanctions under Rule 37(e), or adverse inference instructions.
• A written discovery plan must be submitted to the court after the conference, typically within 14 days.

Introduction

The Federal Rules of Civil Procedure (FRCP) require parties to meet at least 21 days before a scheduling conference to align their IT, legal and compliance teams on a discovery plan. Miss that window or show up unprepared, and you risk court-imposed terms, runaway ediscovery costs, or sanctions under Rule 37(e).

Among these rules, FRCP 26(f), commonly known as the “meet and confer” rule, stands out as a critical early step in the litigation process.

If you’re responsible for data governance, IT infrastructure, or compliance in a regulated organization, the meet and confer conference is where your preparation either pays off or falls apart.

The meet and confer conference not only sets the stage for discovery, but also offers a unique opportunity to influence the scope and direction of information exchange in the case.

In this guide, you’ll learn:

• What Rule 26(f) requires and the deadlines it triggers;
• How to prepare your IT, legal and compliance teams for the conference;
• What topics to cover during the meet and confer, including ESI protocols and preservation;
• A step-by-step checklist you can use before, during and after the conference; and
• Common mistakes that lead to sanctions or discovery disputes.

Understanding Rule 26(f): The Basics

Rule 26(f) of the Federal Rules of Civil Procedure mandates that parties involved in litigation meet as soon as practicable — at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).

The conference must also result in a written discovery plan submitted to the court under Rule 26(f)(2). In most cases, the parties must submit that plan within 14 days after the conference, and initial disclosures under Rule 26(a)(1) are also due 14 days after the Rule 26(f) conference unless the court orders otherwise.

Rule 26(f) exists to force both sides to talk about discovery before it starts. The goal: fewer disputes, lower costs, and a discovery plan the court can actually enforce. For organizations with large volumes of ESI, this is where you set the boundaries on what gets searched, how it gets produced, and who pays for it.

Local court rules and a judge’s standing orders may impose additional requirements or shorter timelines, so parties should review them before the conference. The 2015 amendments to Rule 26(b)(1) also made proportionality central to discovery, which means the meet and confer is the right time to define reasonable limits on scope, timing, and burden.

Whether dealing with cases in healthcare, financial services, education, or government, the meet and confer conference is an opportunity to set clear boundaries and expectations for the discovery process, ensuring compliance and efficiency are maintained throughout.

Here are a few examples illustrating the context of the meet and confer process:

• Start of an employment lawsuit — Parties often need to identify HR records, email, chat messages, and personnel files early so preservation starts before routine deletion occurs.
• Environmental class action — Discovery may involve large volumes of technical reports, testing data, and communications across multiple custodians and systems.
• Healthcare compliance cases — Preservation and production decisions must account for patient privacy, regulated retention requirements, and protected health information.
• Complex commercial litigation — The meet and confer helps narrow broad requests and define phased discovery when contracts, finance records, and executive communications are involved.
• Federal antitrust case — Parties may need to address extensive ESI, collaboration data, and search methodologies to manage scale and cost.
• Intellectual property disputes — Source files, metadata, design records, and shared workspace content often need specific production and preservation terms.

How Rule 26(f) Connects to Other Federal Rules

• Rule 16(b) — Rule 26(f) is tied directly to the scheduling conference or scheduling order deadline, so discovery planning starts before the court sets the case timetable.
• Rule 26(a)(1) — Initial disclosures are generally due 14 days after the Rule 26(f) conference, making early data identification and custodian interviews more important.
• Rule 34 — Document requests and ESI production issues often turn on decisions made during the meet and confer about format, scope, and burden.
• Rule 37(e) — If relevant ESI is lost because preservation was not handled properly, the court may impose sanctions for spoliation.
• Rule 30(b)(6) — Organizations may later need to testify about data systems, retention practices, and preservation efforts, so the positions taken during the conference should be accurate and defensible.

Preparing for the Meet and Confer Conference

For professionals in IT, legal, and compliance roles, this preparation involves a series of strategic steps:

1. Review the case in detail — Before entering the conference, familiarize yourself with the legal claims and defenses, key facts, and any relevant documents or data.
2. Identify key issues and concerns — Make a list of potential issues or concerns that might arise during discovery. This could include the volume of data, types of electronic information, potential challenges with data retrieval, privacy concerns, and compliance requirements specific to your industry.
3. Consider ediscovery requirements — Assess your ediscovery needs, including types of electronic data, preferred formats for data exchange, and any tools or technologies that might be necessary for data processing and review.
4. Formulate a proposed discovery plan — This plan should include proposed timelines, the scope of discovery, any phased approaches to discovery, and considerations for handling ESI. Be prepared to negotiate and modify this plan based on the discussion during the conference.
5. Prepare technological and legal resources — Ensure that you have access to the necessary technological and legal resources. This might include consulting with IT experts, ediscovery specialists, or legal advisors who can provide insights related to the case.

This preparation not only sets the stage for a productive meeting, but also demonstrates professionalism and commitment to a cooperative legal process. Setting up an AI meeting note taker ahead of the conference is another small step that can pay off later, since it provides an accurate transcript to help draft the discovery plan instead of relying on memory or scattered notes.

Who Does What: Responsibilities by Role

Key Topics to Address During the Conference

During the meet and confer conference, several critical topics should be addressed to ensure a comprehensive and efficient discovery process. For professionals in regulated industries, it’s crucial to emphasize the role of data archiving in this discussion.

Here are the key areas to focus on:

1. Discussion of discovery scope and limits — Begin with determining the scope of discovery. This involves what types of information are relevant and reasonable to request. Address any limitations that should be applied to avoid overly broad or burdensome discovery requests.
2. Timing and phases of discovery — Agree on a timeline for discovery, including any phases. Phased discovery can be especially useful in complex cases, allowing parties to focus on the most critical issues first.
3. Ediscovery considerations — Ediscovery will likely be a substantial part of the discussion. Topics should include types of electronic data (emails, documents, databases, Microsoft Teams, Slack, WhatsApp, and other collaboration data), production format (native files, TIFF images with load files, or PDF), metadata fields, keyword search terms, the use of specific ediscovery tools, and whether technology-assisted review (TAR) or manual review will be used. Parties should also discuss cost-sharing for ediscovery processing and hosting, as well as whether chat messages, channel history, shared files, and ephemeral messaging fall within scope.
4. Data preservation obligations — This includes determining what data needs to be preserved, for how long, and the methods to be used. A litigation hold, or legal hold, requires suspending routine data deletion policies for all potentially relevant information and covering all custodians and data sources, including email, cloud storage, local drives, and messaging platforms. Emphasize the importance of data archiving. Ensure that the methods agreed upon comply with relevant industry regulations (like HIPAA in healthcare or FINRA in financial services). Failure to preserve ESI can lead to sanctions under Rule 37(e), including adverse inference instructions, so it helps to review your legal hold process before the conference.
5. Handling of sensitive or confidential information — Address the handling of confidential or sensitive information. This may involve discussing protective orders, redaction processes, or agreed-upon methods for securely exchanging sensitive data.
6. Potential for settlement or Alternative Dispute Resolution (ADR) — Explore the potential for settlement or ADR mechanisms. An early discussion about settlement can save time and resources for all parties involved.

Technology-assisted review and search methodology

• FRE 502(d) orders and clawback agreements — Discuss whether the parties will seek a FRE 502(d) order or use clawback procedures to reduce the risk of privilege waiver if protected material is produced inadvertently.
• Technology-assisted review (TAR) and predictive coding — Raise whether TAR or predictive coding will be used to reduce review volume and support a more defensible review workflow.
• Metadata handling — Identify which metadata fields matter to the case, such as date sent, author, recipients, and file path, and negotiate them up front.
• De-duplication and email threading — Consider de-duplication and email threading as cost-reduction strategies that can limit redundant review and production work.

The emphasis on data archiving and compliance is particularly crucial for regulated industries, ensuring that the discovery process aligns with regulatory requirements and best practices for data management.

Post-Conference Steps

Once the meet and confer conference under FRCP 26(f) concludes, take steps to ensure the effective implementation of the agreed-upon discovery plan.

Here are five critical steps to follow:

1. Finalize and submit the discovery plan — This plan should clearly outline the scope, timelines, data management strategies, and any special considerations for ediscovery and sensitive information. Once finalized, submit the plan to the court for approval to formalize the agreements. Unless the court orders otherwise, this written discovery plan is typically due within 14 days after the conference.
2. Initiate the discovery process — Begin implementing the discovery plan as soon as it’s approved. This includes starting data preservation, collecting and reviewing documents, and setting up ediscovery tools. Use data archiving solutions effectively to streamline the retrieval and management of electronic data, ensuring compliance with legal requirements.
3. Monitor compliance — Regularly monitor the implementation of the discovery plan to ensure that all parties adhere to the agreed-upon terms. Be prepared to adjust the plan in response to new developments or challenges in the case.
4. Resolve disputes and ensure collaboration — Maintain open and collaborative communication with all parties involved. Should disputes or compliance issues arise, address them promptly through negotiation or, if necessary, seek the court’s guidance. If the opposing party does not follow the plan, a motion to compel under Rule 37(a) may be necessary.
5. Document the process and meet deadlines — Keep thorough records of the discovery process, including all communications and steps taken. Document compliance issues and related communications in writing, preferably by email, to create an audit trail. This documentation is vital for tracking progress, and resolving disputes. Ensure that all actions, including document productions and reviews, are completed on time.

By following these post-conference steps, parties can effectively execute the discovery plan, ensuring a smooth, compliant, and efficient discovery process.

What Happens When the Meet and Confer Goes Wrong

When parties treat the Rule 26(f) conference as a formality, the downstream impact can be expensive and difficult to reverse.

1. Failure to preserve ESI after the conference can trigger Rule 37(e) sanctions. If relevant electronically stored information is lost because reasonable preservation steps were not taken, the court may impose measures that include adverse inference instructions.
2. Failure to participate in good faith can result in court-imposed discovery terms. If one side refuses to engage meaningfully on scope, format, or preservation, the court may step in and set the terms itself.
3. Failure to identify data sources early can lead to costly re-collection, motion practice, and credibility problems. When teams miss custodians, collaboration tools, or retention settings, they often have to redo work under tighter deadlines and greater scrutiny.

Meet and Confer Checklist

Use this Rule 26(f) conference checklist to work through preparation, key topics and follow-up in order.

Step 1: Know your case

• Understanding factual background, legal issues, and potential data sources.
• Determine who has access to discoverable information.
• Review any data retention policy that might be in place.

Step 2: Know your data

• Assess the types of electronically stored information (ESI) relevant to the case.
• Discover where digital evidence is located (emails, hard drives, cloud storage, financial software, social media, websites, mobile devices, Microsoft Teams, Slack, WhatsApp, and other collaboration platforms).
• Identify whether chat messages, channel history, shared files, and ephemeral messaging may create preservation challenges or fall within scope.
• Understand the IT infrastructure of each party.

Step 3: Preservation

• Develop strategies for preserving relevant ESI, including implementing legal holds.
• Draft a preservation request.

Step 4: Ediscovery liaisons

• Assign ediscovery liaisons who will handle ediscovery issues and communications.

Step 5: Proportionality

• Assess the relevance and timeframe of the requested data.
• Determine the cost and discuss how it will be shared between the parties.
• Apply the Rule 26(b)(1) proportionality factors:
• The importance of the issues at stake.
• The amount in controversy.
• The parties’ relative access to relevant information.
• The parties’ resources.
• The importance of the discovery in resolving the issues.
• Whether the burden or expense outweighs the likely benefit.

Step 6: ESI protocol

• Develop a protocol for handling ESI.
• Determine formats for production (spreadsheets, files, images…).
• Negotiate metadata fields that will be produced, such as date sent, author, recipients, and file path.
• Compile a list of keyword search terms.
• Determine whether technology-assisted review (TAR) or predictive coding will be used.
• Discuss de-duplication and email threading to reduce review volume and cost.
• Define methods of collection.
• Decide whether to seek a FRE 502(d) order or use clawback procedures for privileged material.

Step 7: Privilege

• Identify privileged material such as specific communication, documents, trade secrets.
• Create a privilege log agreeing on the format and level of detail.

Step 8: Phasing

• Determine priority areas that should be addressed first in the discovery process.
• Propose a discovery schedule in stages.

Step 9: Alternative dispute resolution (ADR)/settlement

• Evaluate settlement potential.
• Determine (ADR) methods like mediation, arbitration, or early neutral evaluation.

Step 10: Follow Up

• Plan for follow-up meetings or communications to address any ongoing or unresolved issues.

Step 11: Meet and confer letter

• Draft a meet and confer letter to summarize the agreements and understandings reached during the conference.

What to include in your meet and confer letter

• Date and attendees of the conference.
• Agreed-upon scope of discovery.
• ESI formats and production protocols.
• Preservation obligations confirmed.
• Privilege handling procedures.
• Proposed timeline and phasing.
• Any unresolved disputes.
• Next steps with deadlines.

Summary

The meet and confer process under FRCP 26(f) offers an opportunity for parties to set a cooperative and strategic tone for the discovery phase.

IT Directors, Technology Managers, CIOs, CTOs, Compliance Officers, and Managers can leverage the meet and confer process to streamline discovery, minimize disputes, and ensure a more efficient and cost-effective litigation process.

FAQ

What is the main purpose of the meet and confer conference under FRCP 26(f)?

The primary purpose of the meet and confer conference, required under Federal Rule of Civil Procedure 26(f), is to encourage parties to discuss the discovery process early in litigation, focusing on setting a cooperative tone, determining the scope and timing of discovery, addressing issues related to ediscovery, and developing a discovery plan that aligns with both parties’ needs and legal requirements.

How crucial is ediscovery in the meet and confer process?

Discussing ediscovery allows parties to agree on formats for electronic data exchange, use of specific ediscovery tools and strategies for managing large volumes of electronic data, which is particularly important in regulated industries.

Can the discovery plan agreed upon during the meet and confer be modified later?

Yes, the discovery plan can be modified later if both parties agree or if new developments in the case require changes. Flexibility is key, and parties should be prepared to adjust the plan to accommodate unforeseen challenges or changes in the case’s direction.

What happens if parties cannot agree during the meet and confer?

If parties cannot reach an agreement during the meet and confer, they may seek the court’s intervention. The court may provide guidance, suggest alternatives, or, in some cases, make binding decisions regarding the discovery process.

How does data archiving support the meet and confer conference?

A well-maintained archive lets IT and compliance teams answer questions about data volume, custodians, and retention practices with confidence before the conference even starts, rather than scrambling to locate records once the meeting is scheduled. It also makes it easier to implement legal holds quickly, produce accurate estimates on the types and formats of ESI involved, and demonstrate a defensible, consistent retention history if preservation is later challenged under Rule 37(e).

What should you do if the other party refuses to cooperate during the Rule 26(f) conference?

If the opposing party won’t engage in good faith, document the refusal in writing and raise it with the court at the Rule 16 scheduling conference. Courts can impose discovery terms, shift costs, or sanction parties that fail to participate meaningfully in the meet and confer process.

About the Author

Stefan Jovanovic

Stefan Jovanovic is a PR and SEO Manager at Jatheon who specializes in B2B SaaS marketing and outreach strategies that drive engagement, generate leads, and support business growth. Outside of work, he enjoys photography, social media, and writing.