One of the oddities of beginning a case is the somewhat tortured interaction between Rules 26 and 16. Under Rule 26(d), most discovery can't be served until after the parties have their initial scheduling meet and confer. That conference, discussed in Rule 26(f), should take place "as soon as practicable—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b)." Rule 16(b), in turn, requires the court to issue the scheduling order:
as soon as practicable, but unless the judge finds good cause for delay, the judge must issue it within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared.
This leads to the question—what happens if the Court does not schedule a Rule 16(b) conference or issue a scheduling order within 60 days after a defendant has appeared (as sometimes happens when a motion to dismiss is filed)? If there's no firm deadline for a 26(f) conference, how can you get the other side to hold one and thus start the discovery process?
In my experience, a frustrated plaintiff will usually send a letter to the Court asking for a scheduling conference. The plaintiff in Nippon Shinyaku., Ltd. v. Sarepta Therapeutics, Inc., C.A. No. 21-1015-LPS came up with a different plan that has a certain amount of appeal—bringing the issue as a discovery dispute. The case had been filed (and a PI motion filed) in August. By November the Court had resolved the PI motion but had yet to schedule a 16(b) conference, and apparently the defendant had refused to participate in a 26(f) conference.
So, Plaintiffs filed a letter requesting a discovery teleconference pursuant to Judge Stark's normal procedures listing as issues:
Whether Defendant should be required to participate in a Rule 26(f) conference at this time.
Whether discovery should be stayed until the resolution of pending matters.
Nippon Shinyaku, D.I. 77.
The Court responded just a few weeks later, scheduling a conference and setting the schedule for letter briefing. Id., D.I. 78. As it happens, the Court ultimately denied the request due to the fairly unique circumstances of the case not interesting enough to recount here. Id., D.I. 81. The Court did, however, start the ball rolling on the issue by requiring the parties to file a status report approximately a month later.
This turnaround is quicker than what I would normally expect from filing a letter that just requested a scheduling conference, and suggests that this approach may be superior in some circumstances.
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