April 20, 2012
New FJC report on Rules 26(f) and 16(b)
Posted to the Civ Pro prof listserv by Emery Lee of the Federal Judicial Center:
The report [from here on quoting Mr. Lee's email]:
Can be accessed at this link:
At the request of the Judicial Conference Advisory Committee on Civil
Federal Judicial Center designed and conducted a closed-case survey about
early stages of litigation, especially Federal Rules of Civil Procedure 26
16(b). The survey was sent to almost 10,000 attorneys of record in civil
terminated in July–September 2011 and yielded a 36% response rate.
Key findings of the survey include:
• 72% of all survey respondents reported that, in the sampled case, they
and conferred with the opposing side to plan for discovery, as required by
Rule 26(f). Among respondents also reporting a Rule 16(b) scheduling
with a judge in the sampled case, the comparable figure was 92%.
• The most common method of conducting the Rule 26(f) meeting was by
or videoconference, reported by 86% of respondents with a meeting.
• Most respondents with a Rule 26(f) meeting in person and/or by telephone
reported that the meeting lasted between 10 and 30 minutes.
• 71% of respondents with a Rule 26(f) meeting reported that the meeting
them in making arrangements to make initial disclosures in the sampled
case, 60% reported that it helped in developing a proportional discovery
plan, 50% reported that it helped them to better understand the opposing
side’s claims and/or defenses, 40% reported that they discussed discovery
electronically stored information, and 30% reported that the meeting
the likelihood of a prompt resolution of the sampled case.
• Of the 40% of respondents reporting a discussion of discovery of
stored information at the Rule 26(f) meeting, 60% reported discussing
• 50% of all respondents, and 60% of respondents with a Rule 26(f) meeting,
reported a Rule 16(b) scheduling conference, either in person or by
with a judge in the sampled case.
• Most respondents with a Rule 16(b) conference in person or by telephone
reported that the conference lasted between 10 and 30 minutes.
• 94% of respondents with a Rule 16(b) conference also reported a
order in the sampled case.
• Attorneys representing plaintiffs at least half of the time were asked
their pleading practices have changed since the Twombly and Iqbal
Half said yes, half said no. The most common change in pleading
practices reported was including more factual detail in complaints,
by 92% of those with changed practices. --PM