Skip to content

RULE 16. SCHEDULING AND PLANNING, PRETRIAL, AND FINAL PRETRIAL CONFERENCES AND ORDERS

July 25, 2011

RULE 16.01: SCHEDULING AND PLANNING CONFERENCES AND ORDERS.

(1) In any action, the court may in its discretion, or upon motion of any party, conduct a conference with the attorneys for the parties and any unrepresented parties, in person or by telephone, mail, or other suitable means, and thereafter enter a scheduling order that limits the time:
(A) to join other parties and to amend the pleadings;

(B) to file and hear motions; and

(C) to complete discovery.

(2) The scheduling order also may include:

(A) the date or dates for conferences before trial, a final pretrial conference, and trial;

(B) provisions for the discovery of electronically stored information;

(C) any agreements the parties reach for asserting claims of privilege or of protection as to trial-preparation material after production, or in reference to electronically stored information; and

(D) any other matters appropriate in the circumstances of the case.

(3) In deciding the content of any scheduling order, the court shall give consideration to minimizing the time that jurors are not directly involved in the trial or deliberations. A schedule once ordered shall not be modified except by leave of the judge upon a showing of good cause.

[Amended by order filed January 31, 2003, effective July 1, 2003.]

RULE 16.02: PRETRIAL CONFERENCES; OBJECTIVES.

In any action, the court may in its discretion, or upon motion of any party, direct the attorneys for the parties and any unrepresented parties to participate in a pretrial conference or conferences in person or by telephone, mail, or other suitable means, for such purposes as:

(1) expediting the disposition of the action;

(2) establishing early and continuing control so that the case will not be protracted because of lack of management;

(3) discouraging wasteful pretrial activities;

(4) encouraging more thorough trial preparation;

(5) facilitating the settlement of the case; and

(6) minimizing the time that jurors are not directly involved in the trial or deliberations. [Amended by order filed January 31, 2003, effective July 1, 2003.]

RULE 16.04: FINAL PRETRIAL CONFERENCE.

Any final pretrial conference shall be held as close to the time of trial as reasonable under the circumstances. The court may order the participants at any such conference to formulate a plan for trial, including a program for facilitating the admission of evidence. The conference shall be attended by at least one of the attorneys who will conduct the trial for each of the parties and by any unrepresented parties.

RULE 16.03: SUBJECTS TO BE DISCUSSED AT PRETRIAL CONFERENCES.

The participants at any conference under this rule may consider and take action with respect to:

(1) the formulation and simplification of the issues, including the elimination of frivolous claims or defenses;

(2) the necessity or desirability of amendments to the pleadings;

(3) the possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence;

(4) the avoidance of unnecessary proof and of cumulative evidence;

(5) the identification of witnesses and documents, the need and schedule for filing and exchanging pretrial briefs, and the date or dates for further conferences and for trial;

(6) the advisability of referring matters to a master;

(7) the possibility of settlement or the use of extrajudicial procedures, including alternative dispute resolution, to resolve the dispute;

(8) the form and substance of the pretrial order;

(9) the disposition of pending motions;

(10) the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems; and

(11) such other matters as may aid in the disposition of the action.

At least one of the attorneys for each party participating in any conference before trial shall have authority to enter into stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed. If appropriate, the court may require that a party or a representative with authority to settle the action be present or reasonably available by telephone in order to consider possible settlement of the dispute.

Advisory Commission Comment [2009]. The amendment to Rule 16.01 is designed to alert the court to the possible need to address the handling of discovery of electronically stored information early in the litigation if such discovery is expected to occur. Rule 26.06 is amended to direct the parties to discuss discovery of electronically stored information if such discovery is contemplated in the action. In many instances, the court’s involvement early in the litigation will help avoid difficulties that might otherwise arise.
Rule 16.01 is also amended to include among the topics that may be addressed in the scheduling order any agreements that the parties reach to facilitate discovery by minimizing the risk of waiver of privilege or work-product protection. Rule 26.06 is amended to add to the discovery plan the parties’ proposal for the court to enter a case-management or other order adopting such an agreement. The parties may agree to various arrangements. For example, they may agree to initial provision of requested materials without waiver of privilege or protection to enable the party seeking production to designate the materials desired or protection for actual production, with the privilege review of only those materials to follow. Alternatively, they may agree that if privileged or protected information is inadvertently produced, the producing party may by timely notice assert the privilege or protection and obtain return of the materials without waiver. Other arrangements are possible. In most circumstances, a party who receives information under such an arrangement cannot assert that production of the information waived a claim of privilege or of protection as trial-preparation material.

RULE 16.05: PRETRIAL ORDER.

After any conference held pursuant to this rule, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only for good cause shown.

RULE 16.06: SANCTIONS.

If a party or party’s attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party’s attorney is substantially unprepared to participate in the conference, or if a party or party’s attorney fails to participate in good faith, the judge, upon motion or the judge’s own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37.02. In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney’s fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust. [As amended by order filed February 1, 1995, effective July 1, 1995; and by order effective July 1, 1997; and by order entered January 29, 1999, effective July 1, 1999.]

Advisory Commission Comments. The rule introduces into state practice the familiar pre-trial procedures used in the federal courts. The use of the procedure lies within the discretion of the court.

Advisory Commission Comments [1995]. The revisions here are similar to the 1983 revisions to Fed. R. Civ. P. 16, which were designed to make the rule more effective in encouraging and enabling judges to manage the pretrial stages of litigation. Subsection 16.01 provides for scheduling and planning conference and orders, but unlike the federal rule, the judge’s use of these devices is not mandatory. Subsections 16.02 and 16.03 expand the purposes of pretrial conferences beyond the current rule’s focus on the trial to include various issues of pretrial practice. The final two sentences of subsection 16.03 clarify the authority of the judge to require the participation of persons having authority to enter into stipulations and, in an appropriate case, authority to settle the dispute. Subsection 16.03 recognizes that it is not always feasible, particularly when a governmental entity is a party, for the court to require the presence of a person with on-the-spot settlement authority, in which case the court may choose to require the participation only of a person who has a major role in recommending settlement. Subsection 16.06 specifies the judge’s authority to sanction parties for failure to participate appropriately in pretrial conferences.

Advisory Commission Comments [1997]. The new language allows a party to request a pretrial conference if the trial judge does not otherwise schedule one.

Advisory Commission Comments [2003]. The new language in the next to last sentence of Rule 16.01 is designed to encourage judges to make serious efforts to reduce the time that jurors are required to be at the courthouse when not directly involved in the case. When entering scheduling orders, judges should take this factor into consideration.

The new language in Rule 16.02(6) is designed to encourage judges to make serious efforts to reduce the time that jurors are required to be at the courthouse when not directly involved in the case. Pretrial conferences may greatly facilitate the efficient use of juror time by encouraging the pretrial resolution of evidentiary and other issues and the early preparation of jury instructions and juror notebooks.

Advertisements

Don't be shy! Leave a Reply!

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: