Local Rule LCvR 16.3: DUTY TO CONFER

LCvR 16.3 DUTY TO CONFER

(a) TIME FOR CONFERENCE.

Counsel (including any nonprisoner pro se party) must confer in accordance with this Rule and Fed. R. Civ. P. 26(f) at least 21 days before a scheduling conference is held or a scheduling order is due under Fed. R. Civ. P. 16(b) to:

(1) Discuss the matters set forth in LCvR 16.3(c).

(2) Make or arrange for disclosures required by Fed. R. Civ. P. 26(a)(1); and

(3) Develop a discovery plan that indicates the parties' views and proposals.

If necessary to comply with its expedited schedule for Rule 16(b) conferences, a Court may require the conference between the parties to occur fewer than 21 days before the scheduling conference is held or a scheduling order is due under Fed. R. Civ. P. 16(b).

(b) EXEMPTED CASES The requirements of this Rule and of Fed. R. Civ. P. 16(b) and 26(f), shall not apply in cases in which no answer has yet been filed and in cases in which a significant number of named defendants have not yet answered. In addition, such requirements shall not apply in the following categories of proceedings exempted from initial disclosure:

(1) an action for review on an administrative record;

(2) A forfeiture action in rem arising from a federal statute;

(3) a petition for habeas corpus or other proceeding to challenge a criminal conviction or sentence;

(4) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;

(5) an action to enforce or quash an administrative summons or subpoena;

(6) an action by the United States to recover benefit payments;

(7) an action by the United States to collect on a student loan guaranteed by the United States;

(8) a proceeding ancillary to proceedings in another court;

(9) an action to enforce an arbitration award; and

(10) FOIA actions.

(c) MATTERS TO BE DISCUSSED BY THE PARTIES.

At the conference required by this Rule, the parties must confer to discuss the following matters:

(1) Whether the case is likely to be disposed of by dispositive motion; and whether, if a dispositive motion has already been filed, the parties should recommend to the Court that discovery or other matters should await a decision on the motion.

(2) The date by which any other parties shall be joined or the pleadings amended, and whether some or all the factual and legal issues can be agreed upon or narrowed.

(3) Whether the case should be assigned to a magistrate judge for all purposes, including trial.

(4) Whether there is a realistic possibility of settling the case.

(5) Whether the case could benefit from the Court's alternative dispute resolution (ADR) procedures (or some other form of ADR); what related steps should be taken to facilitate such ADR; and whether counsel have discussed ADR and their response to this provision with their clients. In assessing the above, counsel shall consider:

(i) the client's goals in bringing or defending the litigation;

(ii) whether settlement talks have already occurred and, if so, why they did not produce an agreement

(iii) the point during the litigation when ADR would be most appropriate, with special consideration given to:

(aa) whether ADR should take place after the informal exchange or production through discovery of specific items of information; and (bb) whether ADR should take place before or after the judicial resolution of key legal issues;

(iv) whether the parties would benefit from a neutral evaluation of their case, which could include suggestions regarding the focus of discovery, the legal merits of the claim, an assessment of damages and/or the potential settlement value of the case; and

(v) whether cost savings or any other practical advantages would flow from a stay of discovery or of other pre-trial proceedings while an ADR process is pending.

(6) Whether the case can be resolved by summary judgment or motion to dismiss; dates for filing dispositive motions and/or cross-motions, oppositions, and replies; and proposed dates for a decision on the motions.

(7) Whether the parties should stipulate to dispense with the initial disclosures required by Fed. R. Civ. P. 26(a)(1), and if not, what if any changes should be made in the scope, form or timing of those disclosures.

(8) The anticipated extent of discovery, how long discovery should take, what limits should be placed on discovery; whether a protective order is appropriate; and a date for the completion of all discovery, including answers to interrogatories, document production, requests for admissions, and depositions.

(9) Any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced.

(10) Any issues about claims of privilege or of protection as trial-preparation materials, including- if the parties agree on a procedure to assert these claims after production- whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502.

(11) Whether the requirement of exchange of expert witness reports and information pursuant to Fed. R. Civ. P. 26(a)(2), should be modified, and whether and when depositions of experts should occur.

(12) In class actions, appropriate procedures for dealing with Rule 23, Fed .R. Civ. P. proceedings, including the need for discovery and the timing thereof, dates for filing a Rule 23 motion, and opposition and reply, and for oral argument and/or an evidentiary hearing on the motion and a proposed date for decision.

(13) Whether the trial and/or discovery should be bifurcated or managed in phases, and a specific proposal for such bifurcation.

(14) The date for the pretrial conference (understanding that a trial will take place 30 to 60 days thereafter).

(15) Whether the Court should set a firm trial date at the first scheduling conference or should provide that a trial date will be set at the pretrial conference from 30 to 60 days after that conference.

(16) Such other matters that the parties believe may be appropriate for inclusion in a scheduling order.

(d) REPORT TO THE COURT AND PROPOSED ORDER.

Not later than 14 days following the conference required by this Rule, the attorneys of record and all unrepresented parties that have appeared in the case shall submit to the Court a written report outlining the discovery plan and including a succinct statement of all agreements reached with respect to any of the 16 matters set forth in paragraph (c), a description of the positions of each party on any matters as to which they disagree, and a proposed scheduling order. Pursuant to Fed. R. Civ. P. 73(b)(1), however, the parties' report shall not indicate their respective positions on assignment to a magistrate judge unless all parties agree to such assignment. The report shall be submitted jointly, but the parties may submit alternative proposed orders that reflect any disagreements. The plaintiff shall have the duty to ensure timely filing of the report. If, by the time the report is due, any defendant has not responded to the plaintiff's proposed report or declines to join in the report, the plaintiff shall certify in the report that efforts were made to secure that defendant's participation.

If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may require the written report outlining the discovery plan be filed fewer than 14 days after the conference between the parties, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference as per Fed. R. Civ. P. 26(f).

COMMENT TO LCvR 16.3(b): The Fed. R. Civ. P. 26(f) removes the authority to exempt cases by local rule from the discovery conference requirement. The same categories of proceedings are exempted from the conference requirement that are exempted from the initial disclosure requirement. Accordingly, LCvR 16.3(b) lists the proceedings exempted under LCvR 26.2(a) and Fed. R. Civ. P. 26(a)(1)(B), and removes the cases previously exempted by local rule (viz., proceedings involving a nonprisoner pro se plaintiff in which a dispositive motion is filed before the deadline for the meeting expires). Although the first nine enumerated exempt categories of cases were intended to be exclusive and are considered actions that are brought in most, if not all of the Federal District Courts, we have included Freedom of Information Act actions to this list, as item number (10) because they are actions that typically do not require discovery or actions in which an initial disclosure requirement would not make sense. A significant portion of the nation's FOIA actions are pending in this Court.