Local Rule LCvR 16.1: PRETRIAL PROCEDURES

LCvR 16.1 PRETRIAL PROCEDURES A. Scheduling and Pretrial Conferences -- Generally.

1. There shall be two phases of pretrial scheduling as set forth in LCvR 16.1.B: (1) a discovery phase to be governed by an initial scheduling order; and (2) a post-discovery phase to be governed by a final scheduling order.

2. As soon as practicable but not later than thirty (30) days after the appearance of a defendant, the Court shall enter an order, which may be revised as set forth in LCvR 16.1.A.3 below, setting forth the date and time of an initial scheduling conference and the dates by which the parties shall confer and file the written report required by Fed. R. Civ. P. 26(f), which shall be in the form set forth at "Appendix LCvR 16.1.A" to these Rules and shall be referred to as the Rule 26(f) Report. Unless the Court finds good cause for delay, the initial scheduling conference shall take place within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared. The Court may defer the initial scheduling conference if a motion that would dispose of all of the claims within the Court's original jurisdiction is pending.

3. The Court may conduct such further conferences as are consistent with the circumstances of the particular case and this Rule, and may revise any prior scheduling order for good cause.

4. Unrepresented parties are subject to the same obligations as those imposed upon attorneys representing a party. All counsel and unrepresented parties shall have sufficient knowledge of the claim asserted, defenses presented, relief sought, and legal issues fairly raised by the pleadings so as to allow for a meaningful discussion of all such matters at each conference.

5. Upon request or sua sponte, the Court may permit attendance by telephone of counsel or unrepresented parties at any conference.

6. Scheduling conferences shall not be conducted in any civil action involving Social Security claims, bankruptcy appeals, habeas corpus, government collection and prisoner civil rights, unless the Court to whom the case is assigned directs otherwise.

B. Scheduling Orders and Case Management.

1. Initial Scheduling Order. Unless the Court finds good cause for delay, the Court shall issue the initial scheduling order as soon as practicable but no later than at or immediately after the initial scheduling conference. Such conference shall take place within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared. The initial scheduling order shall set forth dates for the following:

a. the topics identified in Fed. R. Civ. P. 16(b)(3)(A);

b. completion of fact discovery;

c. a post-discovery status conference to be held within thirty (30) days after the completion of fact discovery; and d. designation, if appropriate, of the case for arbitration, mediation, early neutral evaluation, or appointment of a special master or other special procedure;

2. Additional Topics. The initial scheduling order may also address:

a. The topics identified in Fed. R. Civ. P. 16(b)(3)(B)(i)-(vii);

b. Dates for completion of expert discovery, including the dates for expert disclosures required by Fed. R. Civ. P. 26(a)(2) and the dates by which depositions of experts shall be completed;

c. Such limitations on the scope, method or order of discovery as may be warranted by the circumstances of the particular case to avoid duplication, harassment, delay or needless expenditure of costs; and d. The date to file dispositive motions at an early stage of the proceedings (i.e., before completion of fact discovery or submission of experts' reports).

3. Final Scheduling Order. At the post-discovery status conference or as soon thereafter as practicable, the Court shall enter a final scheduling order that sets forth dates for the following:

a. Filing dispositive motions and responses thereto;

b. Filing motions in limine and motions to challenge the qualifications of any proposed expert witness and/or the substance of such expert's testimony;

c. Filing pretrial statements required by LCvR 16.1.C;

d. Further conferences before trial including the final pretrial conference.

4. Additional Topics. The final scheduling order may also include:

a. The presumptive trial date; and b. Any other matters appropriate in the circumstances of the case.

5. Requirement to Confer; Scheduling Motion Certificate. Before filing a motion to modify any scheduling order, counsel or an unrepresented party shall confer with all other counsel and unrepresented parties in an effort to reach agreement on the proposed modification. Unless a motion to modify the scheduling order is filed jointly by all parties, any motion to modify shall be accompanied by a certificate of the movant denominated a Scheduling Motion Certificate stating that all parties have conferred with regard to the proposed modification and stating whether all parties consent thereto.

C. Pretrial Statements and Final Pretrial Conference.

1. By the date specified in the Court's scheduling order, which generally will be no sooner than 30 days after the close of discovery (including expert discovery), counsel for the plaintiff or an unrepresented plaintiff shall file and serve a pretrial statement. The pretrial statement shall include:

a. a brief narrative statement of the material facts that will be offered at trial;

b. a statement of all damages claimed, including the amount and the method of calculation of all economic damages;

c. the name, address and telephone number of each witness, separately identifying those whom the party expects to present and those whom the party may call if the need arises, and identifying each witness as a liability and/or damage witness;

d. the designation of those witnesses whose testimony is expected to be presented by means of a deposition and the designation of the portion of each deposition transcript (by page and line number) to be presented if already deposed (and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony);

e. an appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those that the party expects to offer and those that the party may offer if the need arises and assigning an exhibit number to those that the party expects to offer;

f. a list of legal issues that the party believes should be addressed at the final pretrial conference;

g. copies of all expert disclosures that the party made pursuant to Fed. R. Civ. P. 26(a)(2) with respect to expert witnesses identified in the pretrial statement pursuant to LCvR 16.1.C.1.c; and h. copies of all reports containing findings or conclusions of any physician who has treated, examined, or has been consulted in connection with the injuries complained of, and whom a party expects to call as a witness at the trial of the case.

2. Within 30 days of filing of the plaintiff's pretrial statement, counsel for the defendant or an unrepresented defendant shall file a pretrial statement meeting the requirements set forth in LCvR 16.1.C.1, including defenses to the damages claims asserted against the defendant by any party and a statement of all damages claimed by the defendant in connection with a counterclaim, cross-claim or third party claim, including the amount and the method of calculation of all economic damages.

3. Within 30 days of the filing of the defendant's pretrial statement, counsel for any third-party defendant or an unrepresented third-party defendant shall file a pretrial statement meeting the requirements set forth above for plaintiffs and/or for defendants, as appropriate.

4. Before filing a motion in limine, counsel or an unrepresented party shall confer with all other counsel and unrepresented parties in an effort to reach agreement on the issue to be raised by the motion. In the event an agreement is not reached, the motion in limine shall be accompanied by a certificate of the movant denominated a Motion in Limine Certificate stating that all parties made a reasonable effort to reach agreement on the issue raised by the motion.

5. Following the filing of the pretrial statements, counsel and any unrepresented parties shall meet with the Court at a time fixed by the Court for a final pretrial conference. Prior to and in preparation for the conference, counsel and unrepresented parties shall:

a. make available for examination by opposing counsel or opposing unrepresented parties all exhibits identified in the pretrial statement and examine all exhibits made available by opposing counsel or opposing unrepresented parties;

b. confer and determine in a jury case whether counsel and any unrepresented parties can agree that the case shall be tried nonjury. If an agreement is reached, the parties shall report to the Court at the conference. If no agreement is reported, no inquiry shall be made by the Court and no disclosure shall be made by any counsel or unrepresented party identifying the counsel or party who failed to agree; and c. unless previously filed or otherwise ordered, prepare a motion accompanied by or containing supporting legal authority for presentation at the final pretrial conference on any legal issues that have not been decided.

6. Unless otherwise ordered by the Court, the following shall be done at the final pretrial conference:

a. counsel and any unrepresented party shall indicate on the record whether the exhibits of any other party are agreed to or objected to, and the reason for any objection;

b. motions prepared pursuant to LCvR 16.1.C.5.c shall be presented, accompanied by or containing supporting legal authority;

c. counsel and any unrepresented party shall be prepared to disclose and discuss the evidence to be presented at trial, including (a) any anticipated use of trial technology in the presentation of evidence or in the opening statement or closing argument, and (b) any anticipated presentation of expert testimony and any challenges thereto;

d. counsel and any unrepresented parties shall advise the Court of any depositions for use at trial of experts or unavailable witnesses that they anticipate will or may be taken after the final pretrial conference and the timing of the depositions. Subject to the provisions of Fed. R. Civ. P. 26 and 37 regarding the identification and disclosure of witnesses, absent good cause shown by an objecting party, the deposition shall be permitted on such terms as ordered by the Court. In the event that such deposition will be taken other than by stenographic means, the party taking the deposition shall have the deposition transcribed and the transcript shall be made available for the Court to make rulings on any objections raised during the course of the deposition. Prior to use in the trial, the party offering the testimony shall edit any video recording to reflect the Court's ruling on objections;

e. counsel shall have inquired of their authority to settle and shall have their clients present or available by phone. The Court shall inquire whether counsel have discussed settlement;

f. counsel and any unrepresented party wishing to supplement his or her pretrial statement shall file and serve a motion to do so not less than seven (7) days before the final pretrial conference, which motion shall be granted in the absence of prejudice to another party;

g. if not previously done, the Court shall schedule the case for trial; and h. such record shall be made of the conference as the Court orders or as any party may request.

7. Failure to fully disclose in the pretrial statements (or, as permitted by the Court, at or before the final pretrial conference) the substance of the evidence proposed to be offered at trial, may result in the exclusion of that evidence at trial, at a hearing or on a motion unless the parties otherwise agree or the Court orders otherwise. The only exception will be evidence used for impeachment purposes.

8. In the event that the civil action has not been tried within 12 months of the final pretrial conference, the Court upon request of any party shall schedule a status conference to discuss the possibility of settlement and establish a prompt trial date.

D. Procedures Following Disclosure Of Information That May Be Privileged.

1. Unless a party requests otherwise, the following language will be included in the Scheduling Order to aid in the implementation of Fed. R. Evid. 502:

a. The producing party shall promptly notify all receiving parties of the inadvertent production of any material protected by the attorney-client privilege and/or that constitutes trial preparation material as set forth in Fed. R. Civ. P. 26(b)(3). Any receiving party who has reasonable cause to believe that it has received material protected by the attorney-client privilege and/or that constitutes trial preparation material shall promptly notify the producing party.

b. Upon receiving notice of inadvertent production, any receiving party shall immediately retrieve all copies of the inadvertently disclosed material and sequester such material pending a resolution of the producing party's claim either by the Court or by agreement of the parties.

c. If the parties cannot agree as to the resolution of a claim of privilege or a claim of protection as trial preparation material, the producing party may move the Court for a resolution within 30 days of the notice set forth in subparagraph (a). Nothing herein shall be construed to prevent a receiving party from moving the Court for a resolution, but such motion must be made within the 30-day period.

2. As provided in Fed. R. Evid. 502(d), the Court may enter an Order stating that the production of material protected by the attorney-client privilege and/or that constitutes trial preparation material, regardless of inadvertence, does not result in a waiver of the privilege or protection attaching to said material for purposes of the proceeding pending before the Court or in any other federal or state proceeding. A model Order is located at "Appendix LCvR 16.1.D."

Comment (2016)

Regarding LCvR 16.1.C.1 and LCvR 16.1.C.6, courts that have dealt with the issue have split on whether depositions of witnesses for use at trial may be taken after the passing of the discovery deadline. Compare RLS Assocs., LLC v. United Bank of Kuwait PLC, 2005 U.S. Dist. LEXIS 3815, 66 Fed. R. Evid. Serv. (CBC) 924 (S.D.N.Y. Mar. 9, 2005) and Estenfelder v. Gates Corp., 199 F.R.D. 351 (D. Colo. 2001) with Crawford v. United States, No. 11-cv-666-JED-PJC, 2013 WL 249360 at 4 (N.D. Okla, Jan 23, 2013) and Integra Lifesciences I, Ltd. v. Merck KgaA, 190 F.R.D. 556, 1999 U.S. Dist. LEXIS 21170 (S.D. Cal. 1999). As a general matter, (1) a party should not have to depose its own witnesses during discovery, (2) should not have to spend the money to take for-trial depositions until it became likely that a trial would actually occur, and (3) litigants are entitled to present their relevant and admissible evidence at trial. Accordingly, the Local Rule addresses the issue in the context of the pre-trial conference by requiring the parties and the Court to set a time, after the filing of the pre-trial statements and before trial within which depositions for use at trial may be taken. In addition, assuming the witness was properly disclosed under Fed. R. Civ. P. 26, the Local Rule places the burden on a party opposing the taking of a deposition for use at trial to show good cause why any such deposition should not be permitted.