The Form 52 Report: An Often Overlooked Opportunity to Avoid or Resolve Discovery Issues

The Form 52 Report is an often overlooked opportunity to avoid or resolve discovery issues in the early stages of a federal lawsuit.  The Report and the subsequent Rule 16(b) Scheduling Order have added importance in the Eastern District of Virginia where discovery closes only 16-18 weeks after commencement. Most attorneys (even seasoned litigators) when questioned about the Form 52 Report, ask “What report?”   The Form 52 Report is the parties’ report to the Court in advance of the Rule 16(b) Scheduling Conference.  It documents their Rule 26(f) meeting and agreements and is eventually entered as an order by the Court.  The report is so fundamental that a copy is included in the Appendix of Forms immediately after Federal Rules of Civil Procedure.  The Report states the parties’ discovery-related agreements – and disagreements – for inclusion in the Rule 16(b) Order. This Blog Post identifies the timing in the litigation of the Form 52 Report and shows that it very well may be the best opportunity to bring multiple discovery issues before the magistrate judge for early consideration.  This Blog Post lists seven issues that are candidates for coverage in the Report.  A recent example of a Form 52 Report is available here. Form 52 Report in the Discovery Timeline The Form 52 Report enters the picture shortly after the Court’s initial order opening discovery and setting the date for the Rule 16(b) Scheduling Conference.  EDVA Local Rule 16(B) provides that “as promptly as possible after a complaint . . . has been filed,” the Court shall schedule [the Rule 16(b) conference].    In our court, this order arrives usually about eight weeks after filing the lawsuit.   Under Rule 26(f), the parties must confer regarding a list of discovery and case management issues identified in the Rule at least 21 days in advance of the Rule 16(b) Conference.  The initial Order typically directs that the Form 52 Report be filed at least a week before the Rule 16(b) Conference.  The graphic below shows this extraordinarily tight timetable. Timeline Form 52 Report   The Rule 16(b) Scheduling Order shapes discovery and potentially resolves multiple issues that might otherwise arise during discovery and prior to the Pretrial Conference.  The Form 52 Report is the best opportunity to influence the contents of the Rule 16(b) Scheduling Order because magistrates often incorporate the report contents in their Scheduling Orders.   And even if the parties are not in full agreement on all points, the Form 52 Report can state both sides of an issue, and quite likely the magistrate will decide the issue when he or she issues the Scheduling Order. Matters to Consider for Inclusion in the Form 52 Report                Here’s a list of seven issues outside of the standard fare that are candidates for inclusion in the Form 52 Report:
  1. ESI and Document Preservation.  Preservation is the “sleeper” issue in eDiscovery.  Consider including specific ESI preservation requirements in the Report.  The pending Rules Amendment scheduled for December 1, 2015 will highlight ESI preservation and identify it as a subject to be covered in the Rule 16(b) Scheduling Order.  Get on this bandwagon early.
  2.  ESI Production Timetables.   A common experience is when the discovery due date yields only a bland statement that a party will produce responsive documents.  In EDVa where discovery must be completed within 16-18 weeks, a delay in the physical production throws a wrench into the discovery planning.  Consider including a production timetable in the Form 52 Report.   On approach is to prepare the first Rule 34 Requests for ESI and Document Production in advance of the Rule 26(f) Conference and make this an agenda item.  Having the requests in front of the parties encourages a substantive discussion not only on the specifics of the discovery but also on the timetable
  3. Privilege Log and FRE 502(d) Order.   Production of Privilege Logs often significantly trail the ESI and document production, and the preparation of these logs can be expensive and time-consuming.   Put the issue on the table at the time of the Rule 26(f) Conference and include agreements or positions in the Form 52 Report.Couple the Privilege Log issues with discussion of a FRE 502(d) order.  The 2006 eDiscovery Amendments to the Federal Rules set up the processes for protection against inadvertent production of privileged materials, but to secure the protections, you will need an order to put them in place.  Including this in the Form 52 Report that is entered by the court accomplishes that task.
  4. eDiscovery Production Formats.  If you can take production formats off the table as an issue, then discovery will go more smoothly.  The Rules allow the requesting party to specify the formats, and then it is the responding party’s duty to either object or propose alternate formats.   But rather than going through a protracted process to arrive at the formats, bring this issue forward at the start.
  5. Protective Orders, Including Potential Cost Shifting.  If the case requires a Protective Order in advance of discovery, aim to negotiate the order early.  If feasible, mention the need for Protective Orders in the Form 52 Report, and provide any consent order to the magistrate along with the Form 52 Report.   Pending Rule amendments include mention of discovery cost shifting as an appropriate issue for a Protective Order.   Recent case law directs that cost shifting will not be addressed in any significant way in a post-trial cost petition.   There, the time to introduce the issue is as early as possible, which would be the Form 52 Report.
  6.  Stipulation that ECF Service is the Equivalent of Personal Service.    The 1-Week Discovery Sprint is one way in which the EDVa Court keeps the docket moving at warp speed.   See R. Larson, The 1-Week EDVa Discovery Spring: From Filing to Ruling in 7½ Frantic Days (EDVa Update Blog , June 4, 2014).   But the sprint process only works if there is personal service on the opposing party or counsel before 5 p.m. on the first Friday before the proposed hearing.  This can be difficult if the opposing counsel is not nearby—good luck in getting the messenger from Alexandria to the far side of Tysons Corner before 5 p.m. on a Friday afternoon in July.Consider including in the Form 52 Report a stipulation that for purposes of discovery motions, ECF filing and service is the equivalent of personal service under Rule 5(b)(2)(A).  You can go one step further and stipulate to the waiver of the additional 3 days that accompanies ECF service under Rule 6(d).  Either or both of these steps should keep open the 1-Week Sprint option on motions to compel discovery.
  7. Special Discovery Issues.  If you have discovery requirements or issues that may be unique to the case, get them before the Court in the Form 52 Report.  For example, if you expect to take more than one Rule 30(b)(6) deposition of a party, perhaps confirm that the first deposition will not bar the second.   Or, if you foresee that your case requires more than five depositions, put the issue before the magistrate judge early
Summary Discovery arrives quickly in the EDVa Courts, and at least in the Alexandria Division, it all takes place within a 16-18 week window.   Since much of the discovery process will be governed by the Rule 16(b) Scheduling Order, counsel should consider using the Form 52 Report as the mechanism to get significant issues before the magistrate judge and perhaps included in the Scheduling Order.   And even if the Scheduling Order does not cover all the desired issues, you may want to at least raise the issues in the Form 52 Report so that when you later find yourself before the magistrate, you can show where the issues were previously raised—along with your positions.