Local Rule Civil L.R. 16: Pretrial Conferences; Scheduling; Management; Alternative Dispute Resolution

Civil L.R. 16. Pretrial Conferences; Scheduling; Management; Alternative Dispute Resolution

(a) Preliminary Pretrial Conferences.

(1) A Judge may require the parties to appear to consider the future conduct of the case. The parties must be prepared to discuss the matters enumerated in Fed. R. Civ.P. 16 and 26(f). The parties also should be prepared to state:

(A) The nature of the case;

(B) Any contemplated motions;

(C) The parties' discovery plan, including the amount of further discovery each party contemplates, the approximate time for completion of discovery, and any disputes regarding discovery;

(D) Whether the parties anticipate the disclosure or discovery of electronically stored information;

(E) Whether the parties have reached an agreement for asserting post-production claims of privilege or of protection as trial-preparation material, and whether the parties request the Judge to enter an order including the agreement;

(F) Whether settlement discussions have occurred;

(G) The basis for the Court's subject matter jurisdiction; and

(H) Such other matters as may affect further scheduling of the case for final disposition.

(2) The Judge may enter any orders necessary to aid in scheduling the action, including dates for further conferences, schedules for filing and briefing motions, and cutoff dates for completing discovery. The Judge also may enter any orders permitted under Fed. R. Civ. P. 16, or 26(f), or Civil Local Rule 26(e).

(3) Scheduling orders are not necessary in the following categories of actions: administrative proceedings, including all Social Security cases; habeas corpus cases or other proceedings to challenge a criminal conviction or sentence; pro se prisoner litigation; actions by the United States to recover benefit payments or to collect on a student loan guaranteed by the United States; cases in which the only relief sought is an order compelling arbitration or enforcing an arbitration award; actions to enforce or quash an administrative summons or subpoena; proceedings ancillary to proceedings in other Courts; and mortgage foreclosure actions in which an agency of the United States is a secured party. Fed. R. Civ. P. 16(b)(1).

(b) Final Pretrial Conference. Counsel and any parties proceeding pro se may be required to appear for a final pretrial conference to consider the subjects specified in Fed. R. Civ. P. 16 or to consider other matters determined by the Judge. Unless excused by the Judge, principal trial counsel for each party must appear at the final pretrial conference.

(c) Joint Pretrial Document.

(1) Unless otherwise ordered, the parties must file a joint pretrial document seven (7) days before the final pretrial conference. The joint pretrial document must be signed by the attorneys (or the parties personally, if not represented by counsel) who will try the case. The joint pretrial document shall contain the information required by the forms adopted by the Judges of this Court. A copy of the assigned Judge's form order shall be attached to each Rule 16 Scheduling Order entered by the Magistrate Judges, and they are also available through the Clerk and on the Court's website. Sanctions, which may include the dismissal of the action and entry of default judgment, may be imposed if a joint pretrial document is not filed.

(2) The parties are required to confer and make a good faith effort to settle the case prior to the final pretrial conference. In preparing the joint pretrial document, the parties are expected to work together in good faith to reach stipulations that may save time during the trial.

(d) Alternative Dispute Resolution.

(1) Participation. Each Judge may conduct an Alternative Dispute Resolution (ADR) Evaluation Conference during the early stages of case development to determine whether a civil case is appropriate for ADR. This conference may be held in conjunction with a pretrial conference or as a separate conference. If the Judge determines that a case is appropriate for ADR, the Judge may encourage the parties to participate in ADR before a Magistrate Judge or an appropriate neutral evaluator.

(2) Exemptions. The types of cases identified in Civil Local Rule 16(a)(3) are exempt from this procedure.

(3) Confidentiality. The Court, the neutral, all counsel and parties, and any other persons attending an ADR session under these Rules must treat as confidential all written and oral communications made in connection with, or during, any ADR session. Except as otherwise stipulated or ordered, the disclosure of any written or oral communication made by any party, counsel, or other participant in connection with or during any ADR session is prohibited. ADR proceedings pursuant to these Rules must be treated as compromise negotiations for purposes of all applicable rules of evidence.

(4) Early Neutral Evaluation. Early Neutral Evaluation (ENE) is a procedure in which the parties and their counsel, early in the case after an opportunity for limited discovery, meet with a neutral evaluator who is knowledgeable in the subject matter. The purpose is to reduce the cost and duration of litigation by providing an early opportunity for the parties to obtain a neutral evaluation of their case and to engage in meaningful settlement negotiations.

(A) Cases Subject to ENE. Any civil case may be referred to ENE if all parties agree. A case may be selected for ENE at the preliminary pretrial conference held pursuant to Civil Local Rule 16(a), or at any other time by stipulation of the parties.

(B) ENE Process. Within thirty (30) days of the case being referred to ENE, the neutral evaluator, an experienced attorney with expertise in the subject matter of the case, hosts a confidential and informal meeting of clients (companies are to be represented by someone knowledgeable about the case and with full settlement authority) and lead counsel at which each side, through counsel, clients or witnesses, presents evidence and arguments supporting its case (without regard to the Rules of Evidence and without direct or cross-examination of witnesses). The neutral evaluator identifies areas of agreement, clarifies and focuses the issues, and encourages the parties to enter into procedural and substantive stipulations. The neutral evaluator, in private, prepares an evaluation that includes an assessment of the case, the reasoning that supports the assessment, and, where feasible, an estimate of the likelihood of liability and range of damages. Before the neutral evaluator provides the evaluation to the parties, the parties may engage in settlement discussions facilitated by the neutral evaluator. If settlement does not result, the neutral evaluator will present the parties with the evaluation. The neutral evaluator's evaluation is not shared with the trial Judge.

(C) Preservation of Right to Trial. The neutral evaluator has no power to impose settlement. The confidential evaluation is non-binding. If no settlement is reached, the case remains on the litigation track.

(D) The Neutral Evaluator. The neutral evaluator must have experience in the substantive legal area of the lawsuit. The parties must attempt to agree upon a neutral evaluator. If the parties cannot agree upon a neutral evaluator, the trial Judge will appoint an available neutral evaluator. The neutral evaluator may be, but need not be, a member of the Panel of Neutrals under the District's Alternative Resolution Plan. The trial Judge may, but is not required to, appoint one of the Magistrate Judges of this District as the neutral evaluator.

(E) Compensation of Neutral Evaluators other than Magistrate Judges. Neutral evaluators volunteer their preparation time and the first four (4) hours in an ENE session. After four (4) hours in an ENE session, the neutral evaluator may either

(i) Continue to volunteer his or her time, or

(ii) Give the parties the option of concluding the session or paying the neutral evaluator for additional time at sixty percent (60%) of the neutral evaluator's standard hourly billing rate, to be split equally among the parties unless they agree to a different apportionment.

The ENE session will continue only if all parties and the neutral evaluator agree. After eight (8) hours in one or more ENE sessions, if all the parties agree that further assistance is desired, the neutral evaluator may charge his or her standard hourly billing rate or such other rate that is acceptable to the neutral evaluator and all parties.