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‘Drive-By’ discovery meetups in federal cases

There’s nothing like a government study to confirm the conventional wisdom. Lawyers who practice in federal court likely already know it helps to talk to the lawyer on the other side to plan how to proceed with discovery.

Quickie confabs with opposing counsel are the norm, for lawyers in federal court who have to plan for discovery or meet for a scheduling conference with a judge or magistrate judge. The Federal Judicial Center today reported the results of a survey sent to almost 10,000 attorneys in civil cases to ask if they followed the “Drive By” Fed. R. Civ. P. 26(f), governing discovery. With a response rate of 36 percent, the survey found that 73 percent of responding lawyers reported a Rule 26(f) meeting that lasted 30 minutes or less. Rule 16(b) scheduling conferences likewise typically lasted between 10 and 30 minutes.

And are Rule 26 meetings helpful? The survey found that half of the attorneys said the meetings helped them better understand the opposing side’s claims and/or defenses, while 71 percent used the meetings to make arrangements for initial disclosures.

It was 50-50 on whether Twombly and Iqbal have changed lawyers’ pleading practices, with half the respondents saying no, half yes. Those reporting a change say they now include more factual details in their complaints.
– Deborah Elkins

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