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Comparing Rule 26(f) Discovery Plans Part 2

This is a continuation of last night's tip when I compared Rule 26(f) plans 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.

6. Deposition and Interrogatory Limitations. The discovery plan form from the District of New Jersey indicates that the parties should state limitations on the number of interrogatories that can be exchanged and the number of depositions that can be taken. The plan from the Eastern District of North Carolina limits the parties to not just 30 interrogatories, but also 30 requests for admissions, and 30 requests for production. It also gives specific time limits for the 8 depositions each party is allowed to take. The District of Minnesota plan includes a proposal of 15 interrogatories by one party but also a suggestion that the parties abide by the 25 interrogatories provided for by the FRCP. Requests for admissions are not limited, but document requests are confined to 15. The limit on the number of depositions excludes depositions taken of experts. The defendant counters the plaintiff's proposal for a limit of 10 non-expert depositions, which the suggestion that only 10 depositions be allowed in a certain phase, with no limit provided for other phases. The plan from the Western District of Texas states a total number of hours of depositions, rather a distinct number of witness depositions.

7. Deadlines. The New Jersey form has lines on which the parties are to give deadlines for adding parties, the end of fact discovery, filing expert reports, filing dispositive motions, a pretrial conference, and a trial. The North Carolina forms include all these deadlines, and state the number of days for the trial and arrange for the pretrial conference to be two weeks for the trial. The Minnesota plan has different schedules for all these dates submitted by each party. The schedules also include deadlines for class certification filings and a hearing on class certification. The Minnesota plan has a section in which the parties indicate the number of witness they will call at a possible trial. The Texas plan does not provide for deadlines, but does refer to a scheduling order creating deadlines for dispositive motions.

8. Form of ESI. New Jersey directs the parties to indicate whether or not they will have issues about the form of produced ESI, and indicate agreements on the "costs of discovery, production, related software, licensing agreements". North Carolina has a separate section for the "Form of production/preservation" and specifics that ESI be produced in the form in which it is maintained in the ordinary course of business. It also includes the interesting provision that emails have a field indicating who they were forwarded to or if they were replied to. Word and Excel files are to be produced in native format. The parties are not required to alter their regular records retention policies so long as they are in compliance with federal and state regulations. Minnesota simply states that, "The parties will meet and confer regarding the format of retrieving any electronically stored information.", without providing any further information about electronic discovery. Texas makes reference to a separate agreement on ESI issues, and notes one party objects to sharing data over "FTP site and/or Secure Share method".

9. Confidentiality. In New Jersey the parties are to state whether or not they will enter a confidentiality order. The North Carolina plan has a protective order attached which the parties stipulate to. It also addresses privilege issues, something not referenced in the draft New Jersey form. It states that there is no waiver for inadvertently producing privileged documents, and specifies a deadline (10 days) by which such documents must be destroyed after a request is made to do so. The party that makes a request for privileged information to be recalled or destroyed has to cover the costs of doing so. Minnesota calls for the parties to meet and confer and submit a protective order to the court, but does not address privilege issues. The Texas plan mentions a previous motion for a protective order which resulted in such an order being in effect at the time of the plan. It only discusses privilege in the context of the assertion of legislative privilege by certain witnesses.

10. Scheduling Conference. New Jersey calls for the parties to list issues to be addressed at a later scheduling conference held pursuant to Rule 16. North Carolina does not address this issue. The Minnesota plan provides for a scheduling conference after the resolution of the class certification motions. In Texas a scheduling order is already in effect and no reference is made to later conference.

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