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Comparing Rule 26(f) Discovery Plans

Rule 26(f) discovery plans can take many forms. Let's compare these examples freely available on the web from the Eastern District of North Carolina; the District of Minnesota; the Western District of Texas; and a form on the site for the District of New Jersey.

1. Name and addresses of the participating attorneys. The D.N.J. form specifies that the addresses, phone numbers, fax numbers (?), (but not emails) of the attorneys at the meeting be listed. However none of the other examples list precise contact information for the named attorneys.

2. Case description. The template from New Jersey requires that a description of the case be given along with the causes of action and defenses. This is omitted from the North Carolina and Texas plans, but included in Minnesota which also lists the jurisdictional basis of the case and 1 to 3 page factual summaries of the claims and defenses.

3. Settlement. The D.N.J. form specifies that monetary and non-monetary offers and demands be listed. Texas indicates that settlement discussions took place, but does not mention amounts or other offers. North Carolina simply refers to the fact that a settlement may be facilitated by a mediator. Minnesota does not refer to a settlement but does include a spot for listing the damages amounts.

4. Rule 26(a) required disclosures. The New Jersey form asks the parties to indicate if required disclosures under FRCP 26(a) and if any problems were encountered. The other districts list dates by which the FRCP 26(a) disclosures must take place and when expert reports required by FRCP 26(a)(2) must be exchanged.

5. Discovery subjects and phases. In the D.N.J. form litigants are asked to describe the discovery subjects and state whether or not discovery will take place in phases. In the filing from Minnesota the two parties each state their own positions about whether or not discovery should be conducted in phases or limited to certain issues, using citations to case law and the Manual for Complex Litigation to bolster their positions. The defendant both proposes a discovery schedule and indicates the number of document requests, interrogatories, and depositions that will be permitted. The North Carolina plan just gives a laundry list of discovery subjects: claims under the ADA; alleged damages; affirmative defenses; other issues; expert disclosures; and the catch-all, "all other matters that will reasonably lead to the discovery of admissible evidence." - but does not discuss phases. Texas does not specifically list subjects or refer to phases.

Goodness it's late! I'll continue this review tomorrow night.

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