Maryland v. Federal Rule Regarding a Mandatory Conference of the Parties

Unlike the Federal Rules of Civil Procedure, the Maryland Rules do not generally mandate a conference of the parties.  However, Rule 2-504.1(a)(4) provides a mechanism for a party to request that a State court order a “meet and confer.”

The federal rule has a convoluted history.  Rule 26(f) – – the conference of the parties or “meet and confer” rule – – was added to the Federal Rules of Civil Procedure in 1980. “The 1980 version of Rule 26(f) was a flop. Nobody used it.”[1] In 1989 and 1991, there were proposals to eliminate it.[2]

Instead, in 1992, the Advisory Committee added “a new provision requiring the parties to meet and confer about discovery and to prepare a discovery plan in advance of the Rule 16 scheduling conference and/or order.”[3]  “With that, Rule 26(f) was brought back from near death, albeit reincarnated as a much different creature.”[4]  Amendments in 2000 and 2006 “cemented its central role in discovery planning and management.”[5]

As of 2006, it is safe to say that the Federal Rules’ approach to discovery planning and management has made a full about-face since 1938. The idea that the parties will conduct discovery unilaterally – without talking to each other and without regulation by the court – is distant history. Today, rather, discovery is discussed, planned, and managed from the very beginning of the lawsuit until its conclusion.[6]

The Rule 26(f) conference of the parties has been described as the “linchpin” of the federal e-discovery rules. It mandates the “front-loading” of ESI issues and was viewed as a significant change in the practice of law.[7]

If there is a master blueprint to e-discovery under the Federal Rules, it lies in amended Rule 26(f) and the accompanying Advisory Committee Notes. Rule 26(f) requires the parties to confer early in the lawsuit, in advance of the deadline for the court to hold a scheduling conference and/or issue a scheduling order…. The story of Rule 26(f) is ultimately a story about how lawyers are now expected to make much more substantial investments in their cases at the very beginning….[8]

However, the Maryland Rules differ in many ways from the Federal Rules of Civil Procedure generally, and when it comes to ESI. See Maryland v. Federal Summary Judgment Rule and ESI-difference-between-federal-state.pdf (zuckerman.com). In short, as to ESI, Maryland did not amend its January 2008 ESI rules after the significant federal rules amendments of December 2015.

One area of substantial difference between the Federal Rules of Civil Procedure and the Maryland Rules centers on the linchpin conference of the parties.

With a few enumerated exceptions, under Fed.R.Civ.P. 26(f), “the parties must confer as soon as practicable….”[9]  The Maryland rule is not mandatory.

Md. Rule 2-401(c) provides that the parties “are encouraged to reach agreement on a plan for the scheduling and completion of discovery.”  Subsection (g) permits the parties to enter into written stipulations to modify discovery procedures, as long as they do not modify a court order.

To the same effect, Md. Discovery Guideline 1(a) states that Rule 2-401(c) “encourages the parties to agree on a plan for scheduling and completing discovery.”  It encourages parties to “communicate” about discovery.  However, it is non-binding.

Nevertheless, Md. Rule 2-504.1 provides two routes to a mandatory conference regarding ESI. One depends on sua sponte action by the court.  The other does not.

First, under Rule 2-504.1(c)(2), “[a]n order setting a scheduling conference may require that the parties, at least ten days before the [scheduling] conference… confer in person or by telephone and attempt to reach agreement or narrow the areas of disagreement regarding the matters that may be considered at the conference….”  The Committee Note lists more than eight “[e]xamples of matters that may be considered at a scheduling conference when discovery of electronically stored information is expected….”

Second, under Rule 2-504.1(a)(4), “the court shall issue an order requiring the parties to attend a scheduling conference, in person or by remote electronic participation… in an action, in which a party requests a scheduling conference and represents that, despite a good faith effort, the parties have been unable to reach an agreement (A) on a plan for the scheduling and completion of discovery, … or (C) on any other matter eligible for inclusion in a scheduling order under Rule 2-504.” [emphasis added]. Rule 2-504(b) lists those matters eligible for inclusion in a scheduling order, such as “the resolution of any disputes between the parties relating to discovery,” “provisions for discovery of electronically stored information,” “a process by which the parties may assert claims of privilege or protection after production,” and “any other matter pertinent to the management of the action.”

Presumably, a party’s request for a scheduling conference under Rule 2-504.1(a)(4) could include a request for a Rule 2-504.1(c)(2) order that, at least ten days prior to the conference, the parties “confer in person or by telephone and attempt to reach agreement or narrow the areas of disagreement regarding the matters that may be considered at the conference….”  This would be the functional equivalent of a Rule 26(f) conference of the parties.

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[1] Steven S. Gensler, “Some Thoughts on the Lawyer’s E-volving Duties in Discovery,” 36 N. Ky. L. Rev. 521, 527 (2009)(emphasis added).

[2] Id.

[3] Id. at 529.

[4] Id.

[5] Id. at 530.

[6] Id.

[7] Id. at 530-31, 535, passim.

[8] Id. at 522-23.

[9] The District of Maryland has a non-uniform local rule that appears to modify this requirement.  Local Rule 104.4 provides that a conference need not take place until after a scheduling order is entered.  However, it permits parties to agree to an earlier conference.