Civ Pro Question: 26(f) and Rule 12 Forum

[always206]

Question:

Before D responds to P's pleading, can you meet and confer, thereby initiating discovery tools, in order to gather information before responding?

P sends a pleading. D can answer, pre-answer, or counter. However, before you reply with a defense, can you meet and confer in order to discover more information before responding? Or, rather, can you absolutely not use any discovery tools period, including 26(f), until you have replied to a pleading?

[NeighborGuy]

26(f) isn't really a discovery tool. All it means is that the parties need to get together before the scheduling conference and plan out how discovery is going to work.

To answer your question one way, no actual discovery is allowed before the 26(f) conference (at least according to the default rules; I think parties can stipulate to it). I can't send you an interrogatory or depose you before the 26(f) conference.

However, calling the other attorney and informally asking for information is not discovery, so there's no reason not to be able to do that. In fact, I'm sure that courts like it better the more attorneys work things out between themselves.

[zeusmaxpower]

26(f) isn't really a discovery tool. All it means is that the parties need to get together before the scheduling conference and plan out how discovery is going to work.

To answer your question one way, no actual discovery is allowed before the 26(f) conference (at least according to the default rules; I think parties can stipulate to it). I can't send you an interrogatory or depose you before the 26(f) conference.

However, calling the other attorney and informally asking for information is not discovery, so there's no reason not to be able to do that. In fact, I'm sure that courts like it better the more attorneys work things out between themselves.

It's worth noting that a person may be deposed, pre-26(f) conference, to perpetuate testimony under 27. Basically the deponent in this case is either dying or leaving the country indefinitely.

[zeusmaxpower]

Question:

Before D responds to P's pleading, can you meet and confer, thereby initiating discovery tools, in order to gather information before responding?

P sends a pleading. D can answer, pre-answer, or counter. However, before you reply with a defense, can you meet and confer in order to discover more information before responding? Or, rather, can you absolutely not use any discovery tools period, including 26(f), until you have replied to a pleading?

I don't see how discovery is necessary at this stage (especially considering the cost). As you mentioned, D has a wide range of options at his disposal. Even if D doesn't have the full picture at the pleading stage, he'll be able to amend his pleadings during/end of discovery and not waive any affirmative defenses, counter claims, etc.