AuthorWilliam M. Audet/Kimberly A. Fanady
Task 19 Determine Applicability of Disclosure
Task 20 Set Up Initial Meeting
Task 21 Prepare for Initial Meeting
Task 22 Prepare FRCP 26 Discovery Plan
Task 23 Make Initial Disclosures
Task 24 Limit Initial Disclosures
Task 25 Attend FRCP 16 Scheduling Conference
Task 26 Make Pre-Trial Disclosures
Task 27 Object to Pre-Trial Disclosures
Task 28 Supplement Disclosures
Task 29 Determine Whether to Compel Disclosures
Form 6 FRCP 26(f) Discovery Plan (Based on Official
Form 35)
Form 7 Initial Disclosure
Determine Applicability of
Disclosure Requirements
A.The FRCP that relate to disclosures are:
1. 26(a)(1): Initial disclosure of witnesses and
documents at outset of case (see Task 23).
2. 26(a)(2): Expert information (see Task 73).
3. 26(a)(3): Pre-trial disclosure of witnesses and
documents to be used at trial (see Task 26).
4. 26(a)(4): Form and filing of disclosures.
5. 26(d): Stay of discovery until FRCP 26(f)
initial meeting (see Tasks 20-22).
6. 26(f): Initial meeting to prepare joint
discovery plan and discuss initial disclosures
(see Tasks 20-22).
B. Certain provisions of FRCP 26 may be changed or
rejected by local rule, court order or, in some cases,
party stipulation. However, the 2000 amendments to
the FRCP substantially limited the District Courts’
ability to opt out of Rule 26 requirements entirely.
1. The following rules may be changed by
stipulation of the parties or case-specific court
order, but the District Court may not opt out:
a. FRCP 26(a)(1) as to timing of disclosures.
b. FRCP 26(d).
2. The following rules may be changed by case-
specific court order, but not by stipulation of the
parties, and the District Court may not opt out:
a. FRCP 26(a)(1) as to disclosure requirements.
b. FRCP 26(f).
3. A local rule, court order or stipulation which
changes a provision of FRCP 26 governs.
See FRCP 26(a)(1). However, if a local rule,
court order or stipulation rejects a provision
of FRCP 26, the FRCP in effect prior to the
1993 amendments governs. Review FRCP 29
regarding stipulations modifying discovery
procedures generally.
C. The following categories of proceedings are
exempt from the initial disclosure requirements:
1. Actions for review on an administrative record.
2. Petitions for habeas corpus or other
proceedings to challenge a criminal conviction.
3. Pro per actions brought by prisoners.
4. Actions to enforce or quash an administrative
5. Actions by the United States to recover benefit
6. Actions by the United States to collect a
student loan.
7. Proceedings ancillary to that in another court.
8. An action to enforce an arbitration award.
A. Review the FRCP, local rules, general orders
and standing orders before you consider filing
or defending a federal action. As soon as you
learn you may be involved in federal litigation,
determine whether the FRCP 26 disclosure
requirements apply to your case.
B. Review the disclosure requirements periodically
throughout the case to familiarize yourself with
them and to consider whether to seek to “stipulate
around” them.
C. Review Form 1 for a timeline of the disclosure
requirements under FRCP 26.
A. Review FRCP 26.
B. Review your district’s local rules and general
orders to determine whether your district opted out
of any provision of FRCP 26.
C. Consult the assigned judge’s standing orders to
determine whether the judge’s cases are exempt
from any provision of FRCP 26.
1. Obtain standing orders from the judge’s
courtroom deputy or court clerk. Call or write
a letter requesting copies.
2. Some judges give these orders to plaintiffs
upon filing the complaint and require plaintiffs
to serve them on defendants with the summons
and complaint.
D. Determine whether you should try to change the
provisions of FRCP 26(a)(1) (initial disclosures),
26(a)(2) (expert disclosures) or 26(d) (initial stay
of discovery). Consider:
1. How will discovery differ under the respective
rules? Will you have to disclose more evidence
under the mandatory disclosure rules than
under discovery requests your adversary will
likely serve?
2. Will you benefit from the mandatory
disclosure rules by obtaining discovery without
serving requests? You may save your client
money by not having to propound certain
3. Is it in your best interest to exchange basic
discovery early in the case? Generally, if
discoverable documents and other evidence
are in your possession or control, avoid initial
disclosures. Conversely, if most evidence
is under your adversary’s control, keep the
disclosure requirements in force.
4. Will an initial discovery stay (except
disclosures required by FRCP 26(a)(1)) be to
your advantage?
E. To change these provisions, ask opposing counsel
to stipulate. If counsel agrees:
1. Draft a stipulation setting forth the rules and
the agreed changes. Be as detailed as possible
to avoid any later misunderstandings.
2. Obtain signatures from all counsel and file the
stipulation with the court.
F. If counsel will not stipulate or if you wish to
change or reject rules that only the court may
change, consider moving for a FRCP 26(c)
protective order. See Task 84. In your motion,
explain why the rules should not apply to your
case, such as:
1. The case is in expedited proceedings for
injunctive or other preliminary relief and an
initial discovery stay will be counterproductive.
2. The parties will pursue mediation or arbitration
and, therefore, do not want to spend the time
or money to make initial disclosures or draft a
joint discovery plan.
3. The case is near settlement and the parties do
not need to spend the time or money making
expert disclosures.
A. Many districts have opted out of the 1993
amendments to the FRCP but have local rules and
EDR Plans with similar requirements. The 2000
amendments to the FRCP substantially limited the
District Courts’ ability to opt out of the Rule 26
disclosure requirements entirely. Stipulations and
orders altering or opting out of the requirements in a
specific case may still be entered in some instances.
B. Even if your district has opted out of FRCP 26,
consider asking the assigned judge to order any
disclosures that will be to your advantage.
Set Up Initial Meeting
A. Under FRCP 26(f), counsel for all parties that
have appeared in the case (by filing a pleading
or motion) or the parties themselves, if not

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