Rule 16. Pretrial Conferences; Scheduling; Management
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(b) Scheduling and Planning.
Except in categories of actions exempted by district court rule as inappropriate, the district judge, or a magistrate judge when authorized by district court rule, shall, after receiving the report from the parties under Rule 26(f) or after consulting with the attorneys for the parties and any unrepresented parties by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that limits the time
(1) to join other parties and to amend the pleadings;
(2) to file motions; and
(3) to complete discovery.
The scheduling order also may include
(4) modifications of the times for disclosures under Rules 26(a) and 26(e)(1) and of the extent of discovery to be permitted;
(5) provisions for disclosure or discovery of electronically stored information;
(6) any agreements the parties reach for asserting claims of privilege or of protection as trialpreparation material after production;
(7) the date or dates for conferences before trial, a final pretrial conference, and trial; and
(8) any other matters appropriate in the circumstances of the case.
The order shall issue as soon as practicable but in any event within 90 days after the appearance of a defendant and within 120 days after the complaint has been served on a defendant. A schedule shall not be modified except upon a showing of good cause and by leave of the district judge or, when authorized by local rule, by a magistrate judge.
Rule 26. General Provisions Governing Discovery; Duty of Disclosure
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(f) Conference of Parties; Planning for Discovery.
Except in categories of proceedings exempted from initial disclosure under Rule 26(a)(1)(E) or when otherwise ordered, the parties must, as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b), confer to consider the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case, to make or arrange for the disclosures required by Rule 26(a)(1), to discuss any issues relating to preserving discoverable information, and to develop a proposed discovery plan that indicates the parties’ views and proposals concerning:
(1) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement as to when disclosures under Rule 26(a)(1) were made or will be made;
(2) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused upon particular issues;
(3) any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;
(4) any issues relating to claims of privilege or of protection as trial-preparation material, including — if the parties agree on a procedure to assert such claims after production — whether to ask the court to include their agreement in an order;
(5) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and
(6) any other orders that should be entered by the court under Rule 26(c) or under Rule 16(b) and (c).
Rule 26. General Provisions Governing Discovery;Duty of Disclosure
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(b) Discovery Scope and Limits.
Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
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(2) Limitations.
(A) By order, the court may alter the limits in these rules on the number of depositions and interrogatories or the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36.
(B) A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
(C) The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion under Rule 26(c).
Rule 26. General Provisions Governing Discovery;Duty of Disclosure
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(b) Discovery Scope and Limits.
Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
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(5) Claims of Privilege or Protection of Trial-Preparation Materials.
(A) Information Withheld. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
(B) Information Produced. If information is produced in discovery that is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.
Rule 34. Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for Inspection and Other Purposes
(a) Scope.
Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor’s behalf, to inspect, copy, test, or sample any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained — translated, if necessary, by the respondent into reasonably usable form, or to inspect, copy, test, or sample any designated tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).
(b) Procedure.
The request shall set forth, either by individual item or by category, the items to be inspected, and describe each with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced. Without leave of court or written stipulation, a request may not be served before the time specified in Rule 26(d).
The party upon whom the request is served shall serve a written response within 30 days after the service of the request. A shorter or longer time may be directed by the court or, in the absence of such an order, agreed to in writing by the parties, subject to Rule 29. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, including an objection to the requested form or forms for producing electronically stored information, stating the reasons for the objection. If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts. If objection is made to the requested form or forms for producing electronically stored information — or if no form was specified in the request — the responding party must state the form or forms it intends to use. The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.
Unless the parties otherwise agree, or the court otherwise orders:
(i) a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request;
(ii) if a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and
(iii) a party need not produce the same electronically stored information in more than one form.
Rule 37. Failure to Make Disclosures or Cooperate in Discovery; Sanctions
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(f) Electronically Stored Information.
Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.
Rules 16(B) and 26(F) Summary
These two rules alert counsel and the court that they should consider E-Discovery issues as early and comprehensively as possible. The opposing parties must meet and confer at least 21 days before the scheduling conference with the court in order to work out agreements on the preservation of electronically stored information (ESI), the forms of ESI production, the methods that will be employed to filter out irrelevant information, and protection for privileged information. Once the parties have met and the scheduling conference has occured, the court will issue a scheduling order that will govern the pace of the litigation.
Rules 16(B) and 26(F) Checklist
Rules 16(B) and 26(F) Resources
Rule 26(B)(2) Summary
Parties do not have to produce electronically stored information (ESI) that is not reasonably accessible because of undue burden or cost. If the requesting party shows good cause, the court may still order the production of inacessible documents, subject to certain conditions.
Rule 26(B)(2) Checklist
Rule 26(B)(2) Resources
Rule 26(B)(5) Summary
Any claims of privilege must be documented such that other parties can ascertain whether the privilege applies. Recipients of privileged or protected ESI must return, sequester, or destroy the information upon notification, and take reasonable steps to retrieve any information they may have disclosed prior to notification.
Rule 26(B)(5) Checklist
Rule 26(B)(5) Resources
Rule 34 Summary
Electronically stored information (ESI) must be produced in forms that are reasonably usable. Requests for production may specify desired data formats for production. If no specification is made, parties must produce the ESI in the format in which it is ordinarily maintained, or in a reasonably usable form (ie, if ordinarily kept in a proprietary format.) Parties do not have to produce ESI in more than one format.
Rule 34 Checklist
Rule 34 Resources
Rule 37 Summary
This rule provides a safe harbor against discovery sanctions for failure to produce electronically stored information (ESI) that was destroyed as part of the good-faith operation of a data management system.
Rule 37 Checklist
Rule 37 Resources