What happens after you answer a federal complaint

The answer ends the first phase of a federal case and starts a much more structured one. Three things happen on a schedule, and none of them waits for a party to ask.

The Rule 26(f) conference comes first, and it gates discovery

FRCP 26(f)(1): except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when the court orders otherwise, the parties "must confer 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)."

FRCP 26(f)(2) sets what the conference must cover. The parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the Rule 26(a)(1) disclosures; discuss any issues about preserving discoverable information; and develop a proposed discovery plan. Attorneys of record and unrepresented parties are jointly responsible for arranging it and for submitting the written report.

Then the provision that makes it a gate — FRCP 26(d)(1):

A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.

Serving discovery before the conference is not merely early; it is outside the rule.

One narrow exception. FRCP 26(d)(2) allows early Rule 34 document requests: more than 21 days after the summons and complaint are served on a party, a Rule 34 request may be delivered to that party by any other party, and by that party to any plaintiff or other served party. The request is then treated as served at the first Rule 26(f) conference — so it buys sequencing, not a head start on the response clock.

Initial disclosures arrive without a request

FRCP 26(a)(1)(A): except as exempted by Rule 26(a)(1)(B) or as stipulated or ordered, a party must, without awaiting a discovery request, provide to the other parties:

• the name and, if known, address and telephone number of each individual likely to have discoverable information — with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless solely for impeachment;
• a copy, or a description by category and location, of all documents, electronically stored information and tangible things in its possession, custody or control that it may use to support its claims or defenses, unless solely for impeachment;
• a computation of each category of damages claimed, with the supporting materials made available for inspection and copying; and
• any insurance agreement under which an insurer may be liable to satisfy all or part of a possible judgment or to indemnify or reimburse for payments made to satisfy it.

Two features people get wrong. The obligation is limited to what you may use to support your own claims or defenses — it is not a duty to hand over everything relevant, and certainly not everything harmful. And the insurance disclosure is automatic, which is why it rarely needs a discovery request.

FRCP 26(a)(1)(C) sets the timing at the Rule 26(f) conference or within 14 days after it, unless a different time is set by stipulation or court order. A party joined later has 30 days after being served or joined.

FRCP 26(a)(1)(E) closes off a common excuse: a party must make its initial disclosures based on the information then reasonably available, and "is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures."

The scheduling order is the deadline that matters most

FRCP 16(b)(1): except in categories of actions exempted by local rule, the district judge — or a magistrate judge when authorized by local rule — must issue a scheduling order, after receiving the parties' Rule 26(f) report or after consulting with the parties at a scheduling conference.

FRCP 16(b)(2): the judge must issue it as soon as practicable, and unless there is good cause for delay, "within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared."

FRCP 16(b)(3)(A) — required contents. The scheduling order must limit the time to:

• join other parties,
• amend the pleadings,
• complete discovery, and
• file motions.

FRCP 16(b)(3)(B) lists what it may also do, including modifying the timing or extent of disclosures and discovery, providing for disclosure, discovery or preservation of electronically stored information, addressing privilege-claim procedures after production, and setting dates for pretrial conferences and trial.

Then the sentence that changes the standard for the rest of the case — FRCP 16(b)(4):

A schedule may be modified only for good cause and with the judge's consent.

That is a higher bar than Rule 6(b)'s. From the moment the scheduling order issues, "leave to amend should be freely given" under Rule 15(a)(2) is no longer the first question; Rule 16(b)(4)'s good cause is. The amending guide works through that interaction.

The other disclosure deadlines the order sets

Experts — Rule 26(a)(2). Absent a stipulation or court order, expert disclosures are due at least 90 days before the date set for trial or for the case to be ready for trial; and for evidence intended solely to contradict or rebut another party's expert, within 30 days after the other party's disclosure. Retained experts must provide a written report containing the matters Rule 26(a)(2)(B) lists.

Pretrial disclosures — Rule 26(a)(3). Witness lists, deposition designations and exhibit lists are due at least 30 days before trial, and objections to them within 14 days after they are made, or they are waived except under Federal Rules of Evidence 402 and 403.

The duty to supplement doesn't end

FRCP 26(e)(1): a party who has made a disclosure under Rule 26(a), or responded to an interrogatory, request for production or request for admission, must supplement or correct in a timely manner if it learns the response is materially incomplete or incorrect and the corrective information hasn't otherwise been made known during discovery or in writing — or as ordered by the court.

Rule 26(e)(2) extends the duty to expert reports and deposition testimony, with supplementation due by the time pretrial disclosures under Rule 26(a)(3) are due.

The sanction for ignoring it is in Rule 37(c)(1): information or a witness not properly disclosed or supplemented may not be used "on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless."

The realistic sequence

Every one of those defaults yields to the scheduling order and to local rules, which is why the order and the district's local civil rules are the two documents to read alongside this.

Where these rules live

• Rule 12 — Defenses and Objections
• Rule 15 — Amended and Supplemental Pleadings
• Rule 16 — Pretrial Conferences; Scheduling; Management
• Rule 26 — Duty to Disclose; General Provisions Governing Discovery
• Rule 30 — Depositions by Oral Examination
• Rule 33 — Interrogatories to Parties
• Rule 34 — Producing Documents and ESI
• Rule 37 — Failure to Make Disclosures or to Cooperate

This page explains what the rules say. It isn't legal advice.