RULE 26. GENERAL PROVISIONS GOVERNING DISCOVERY

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Rule 26.06: Discovery Conference.

(1) At any time after commencement of an action the court may direct the attorneys for the parties to appear before it for a conference on the subject of discovery. The court shall do so upon motion by the attorney for any party if the motion includes:

(A) A statement of the issues as they then appear;

(B) A proposed plan and schedule of discovery;

(C) Any limitations proposed to be placed on discovery;

(D) Any other proposed orders with respect to discovery; and

(E) A statement showing that the attorney making the motion has made a reasonable effort to reach agreement with opposing attorneys on the matters set forth in the motion. Each party and the party's attorney are under a duty to participate in good faith in the framing of a discovery plan if a plan is proposed by the attorney for any party. Notice of the motion shall be served on all parties. Objections or additions to matters set forth in the motion shall be served not later than 10 days after service of the motion.

(2) In any case in which an issue regarding the discovery of electronically stored information is raised or is likely to be raised, a judge should encourage counsel to meet and confer in order to voluntarily come to an agreement on the discovery of electronically stored information and on a schedule that will enable discovery to be completed within the time period specified in the Rules of Civil Procedure or by a scheduling order.

(3) In any case in which an issue regarding the discovery of electronically stored information is raised or is likely to be raised, and in which counsel have not reached agreement, a judge upon its own initiative or upon a motion by the attorney for any party may order the attorneys for the parties to appear before it for a conference and, after reasonable notice to and an opportunity to be heard from the parties, may issue an order governing the discovery of electronically stored information.

(4) The judge upon its initiative, or upon a motion by the attorney, may direct the attorneys for the parties to appear before it for a further conference to ascertain whether counsel have reached any agreements and to address any disputes regarding electronic discovery issues, e.g., (a) the electronically stored information to be exchanged including information that is not readily accessible; (b) the form of production; (c) the steps the parties will take to segregate and preserve relevant electronically stored information; (d) the procedures to be used if privileged electronically stored information is inadvertently disclosed; and (e) the allocation of costs.

(5) Following the discovery conference, the court shall enter an order tentatively identifying the issues for discovery purposes; establishing a plan and schedule for discovery; setting limitations on discovery, if any; and, determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the action. An order may be altered or amended whenever justice so requires.

(6) The shifting of discovery costs to the requesting party or the sharing of those costs between the requesting and responding party should be considered when electronically stored information sought is not reasonably accessible information and when restoration and production of responsive electronically stored information from a small sample of the requested electronically stored information would not be sufficient. When these conditions are present, the judge should consider the following factors in determining whether any or all discovery costs should be borne by the requesting party: the extent to which the request is specifically tailored to discover relevant information; the availability of such information from other sources; the total cost of production compared to the amount in controversy; the total cost of production compared to the resources available to each party; the relative ability of each party to control costs and its incentive to do so; the importance of the issues at stake in the litigation; and the relative benefits of obtaining the information.

(7) Subject to the right of a party who properly moves for a discovery conference to a prompt convening of the conference, the court may combine the discovery conference with a pretrial conference authorized by Rule 16.

[Added by order entered January 31, 1984, effective August 20, 1984, amended by order dated January 8, 2009, effective July 1, 2009.]
 

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