What the Rule 26(f) Conference Is For
The Rule 26(f) conference is one of the most misunderstood features of the Federal Rules of Civil Procedure. Most lawyers treat it as a scheduling call. It is where the parties decide, often without realizing it, whether the truth of the dispute can be recovered and uncovered.
The rule requires the parties to confer early, at least 21 days before the court holds its scheduling conference or issues its scheduling order under Rule 16(b). They must consider the nature of the claims and defenses and the possibilities for promptly settling the case. They must also discuss preservation, the disclosure and discovery of electronically stored information, the form of production, privilege, and a proposed discovery plan. Within 14 days, they submit a written report to the court, and the judge builds the case’s scheduling order on that report. Once entered, that order is hard to change without good cause.
I told my students this semester that when I started practicing, the conference was a drive-by. I would call opposing counsel, and in ten minutes we would settle the overview questions: months to trial, the discovery cutoff, summary judgment deadlines, expert disclosures, and the other routine scaffolding of a lawsuit. The call was short, perfunctory, and low-anxiety. We hung up and went back to the real work.
The ESI era ended that. Volume exploded. Data lived everywhere, in dozens of formats, carrying metadata that changed if anyone moved a file. Suddenly the 26(f) conference became the critical platform for the whole case, and ESI planning became its central, important, and dangerous negotiation. Early mistakes now had fateful downstream consequences. A custodian nobody identified in month two surfaces a month before trial. A chat platform nobody mentioned has been auto-deleting messages since the complaint was filed. A production format agreed to in passing turns out to strip the metadata that would have shown who edited the key memo, and when.
The ESI era did something more important. It opened a window onto what the conference was supposed to accomplish all along. It was never meant for bartering and jockeying for position. Litigation is not price haggling. What is at stake is the fragility of the human world, one case at a time, with cumulative effect. Every case is a small public effort to find out what happened among people, and every case that fails at that effort leaves the shared world a little less trustworthy.
With ESI, the 26(f) conference appeared in its original dress. The attorneys and pro se parties must use their judgment to help the court structure a reasonable process that gives the dispute meaning and context.
Take expert depositions. The haggler asks how few deposition hours he can concede to gain an edge. The better question is how much time it takes to bring out the facts and the expert’s opinions about them: to understand the world the expert sees and will present to a jury, to reveal what is missing, and to find where the expert failed to grasp the meaning of things.
E-discovery sharpens every one of these questions.
Custodians. Suppose thirty people in a sales department touched the transaction at issue, and three ran it. The haggler asks how few custodians he can get away with. The better question is whose documents tell the story. Starting with the three, with a clear path to the other twenty-seven if the record shows gaps, is not a concession. It is a hypothesis about where the truth lives, stated openly so the other side can test it.
Search. In my experience, a technology-assisted search that finds 80 percent of the relevant documents is treated as good work. Think about what that means: one relevant document in five is never seen. The haggler fights over the number. The better questions are what the missing fifth is likely to contain, whether finding more of it would change anyone’s understanding of what happened or would only cost more, and how, perhaps with sampling, we can glimpse what might be missing.
Collection. Opposing counsel says, “We’ll just have our employees gather whatever they think is relevant.” The wrong response is “Don’t do that, you’ll be sanctioned.” The right response is “That won’t work for you, and it won’t work for me. It won’t produce a record we can trust or the information that will let us piece together what happened to our clients. There is a simpler, less expensive way. Let me walk you through it.”
Production format. In the early days, some producing parties printed electronic files to paper, or converted them to static images, so the other side could not search them. I once received an adversary’s attorney time records only on paper in a fee dispute. I had them scanned and searched for the word “conference.” The results told the special master a story about duplicated effort that no one could have seen in the boxes. Format is not a technicality. It decides whether the record can be understood at all.
Privilege. Every large production will eventually include a privileged document by mistake. The question is not if but when. Parties who agree in advance on a clawback procedure, backed by an order under Federal Rule of Evidence 502(d), are not giving ground. They acknowledge that people working in good faith will err and build that forgiveness into the case from the start.
The most important words of the conference
The words lawyers bring to the table shape what happens there. A haggler’s vocabulary is about price: floors, red lines, chips to trade, wins, and losses. A lawyer negotiating to understand speaks differently, and three words carry most of the difference.
The first is care. Every request and every objection at a 26(f) conference expresses something a party cares about, and the work starts with naming it. The haggler says, “We’ll give you the three executives’ email early if you drop the TEAMS chats.” That is a trade, and it hides the reasons on both sides. The lawyer who attends to care says, “We understand you care about having the executives’ email before their depositions in March, and we can deliver it by day 30. What we care about is getting the privilege review right on the larger collection, because that is where
mistakes happen. Can we take until day 60 for the rest?” The deal may come out the same. Only the second version tells the other side why, so they can test it and answer it.
The second is importance. A request is not simply big or small. It matters more or less to the case, and it costs more or less to produce. The haggler calls a request for two million Teams messages “overbroad” and stops there. The better answer weighs the request: “Our sample of 500 messages found almost nothing about the contract. But the six weeks of the negotiation are a different matter. Let’s produce that period in full and look at the rest only if it shows gaps.” The volume of the messages is not the question. Their importance is.
The third is understanding. This is the question behind every proposal: what data would let a judge or jury, who were not there, reconstruct the events? The haggler says, “We’ll produce PDFs. That’s standard.” The lawyer focused on understanding says, “The pricing memo went through four drafts between March and April. To understand how the price changed, and who changed it, we need the native files with their metadata. PDFs would erase exactly the history this case is about.” Understanding seeks what is needed to imagine what the clients and witnesses understood, thought, and felt. Lawsuits turn on states of mind: what someone knew, what they feared, what they believed they were agreeing to. Formal email records decisions. Text messages and chats often record what people were thinking when they made them. The haggler says, “We’ve produced the email. Texts are burdensome and duplicative.” The better answer is, “The emails show what the managers decided. Their texts may show what they knew and worried about when they decided it, and that is the question a jury will ask. Can we agree on the four people whose phones matter and a date range that covers the decision?”
None of these three words requires giving anything away. They require knowing why you want what you want and saying it so the other side can respond to the reason, not the demand. What they reflect is judgment.
What judgment feels like at the table
How do I know when I am judging rather than calculating how to get from here to there? Hannah Arendt described judgment as the capacity to deal with particulars that no rule settles in advance, exercised in the company of others. It is more than a checklist and more than a strategic sense of winning the game. Checklists cover the right topics, but they tell you what to discuss, not what to conclude or what is important. Judgment has a recognizable texture. Six markers show it is happening.
Attention to the particulars. The case events come before any rule. You feel it as an alarm before you can name the problem: opposing counsel mentions self-collection, and something in you says “no” before you have assembled the reasons. Judgment does not proceed as a deduction from a rule. I once had a case almost go sideways because the other side had heard, “Never accept a TIFF production!” The particulars of that case made TIFF production adequate and inexpensive. Even my own preference for native production bends to the particulars. Start from the ground.
Immersion. You cannot negotiate a case you do not know. You must have interviewed the witnesses and walked through the key data and felt like you’ve deposed the data itself. Then you step back far enough to see what it means. The feeling is often “I don’t understand yet,” or “I can’t commit to this right now,” which is why a real 26(f) conference often runs over several sessions. A lawyer who arrives unprepared and simply adopts the other side’s protocol has skipped this step entirely. A prepared lawyer who insists on every element of a proposal is equally absent from the case. The other side is seeing something that matters to them.
Guided by examples. A past case lights up the present without deciding it. “This reminds me of the earplug litigation, where the defendant wanted to try the government contractor defense first.” Or, “We’ve done it this way before. Let me show you.” Choosing which example to bring is itself a judgment, and you should be able to say why you chose that one.
Enlarged mentality. You must visit the other side’s standpoint. It can be uncomfortable. You see why the requesting party fears that “the critical three custodians first” will quietly become “no additional custodians ever,” and you build the answer to that fear into your proposal.
Fidelity to the facts. We can’t have every scrap of data, and we don’t need it. We owe the case the effort to see what happened, even when what we see isn’t what our client hoped. You don’t reach for 90 percent recall to look tough or settle for 70 percent to keep the client happy or to avoid a motion. Judgment feels like resistance: the case pushing back against the answer you wanted. That resistance is the evidence you are judging rather than performing.
Answerability. At the conference you say, in effect, “This is how the matter should be understood,” invite agreement, and stand behind it. Rule 26(g) requires a lawyer’s signature certifying a reasonable inquiry, and the 26(f) report goes to a judge who builds a binding scheduling order on it. The first test is simple: “Can I sign this?” The deeper test is whether you would say the same thing, and show your work, before a full audience of people important to you. Negotiation at the 26(f) conference, like litigation itself, means standing before the world with what you say and do.
The world, re-emerging
The 26(f) conference and the Rule 16 conference that follows let the world behind the dispute re-emerge. They structure the case so that the lived experience of the people involved, what they did, wrote, decided, and feared, can be understood by a judge or jury who was not there. The lawyers at that first table build the process, but they do not control what it reveals. A careless protocol narrows what the case lets through. A thoughtful one widens it. Everything downstream depends on whether those lawyers were negotiating to understand rather than negotiating merely to win.
The Judgment Call
You represent the founder of a family-owned distributor whose thirty-year relationship with a manufacturer ended with a sixty-day termination notice. She is suing for $3 million. At the second session of the 26(f) conference, defense counsel raises settlement and floats $900,000.
Here is what you know. Early sampling of the manufacturer’s email is thin. The regional manager who made the call replaced his phone two months after the termination, and his texts may be gone. But one surviving Teams message from his supervisor reads, “We need to be out of this relationship before Q3.” Full discovery through trial will cost your client about $600,000. Her business is solvent but strained, and the lawsuit is costing her sleep. She also believes the manufacturer lied to her for a year, and she wants that said out loud.
She calls you that evening. “I don’t want a list of pros and cons. I’ve read your memo. What would you do?”
What do you tell her? And what would you need to have done, read, and understood before you could give that answer and stand behind it?
