Rule 16 Pretrial Conferences; Scheduling; Management

Purposes of a Pretrial Conference.

In any action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences 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) improving the quality of the trial through more thorough preparation; and

(5) facilitating settlement.

Scheduling and Planning. As soon as practicable after the complaint is filed, the clerk must set the case for a mandatory scheduling conference. The conference must be conducted within 90 days after the complaint is filed, or within 45 days of the last pleading permitted by Rule 7, whichever comes last, and subject to any other date set forth by the court. Following a scheduling conference, the court must, as soon as practicable, enter a scheduling order. A scheduling order must not be modified except upon a showing of good cause and with the court’s consent.

(1) The scheduling order limits the time to:

(A) join other parties;

(B) amend the pleadings;

(C) file motions; and

(D) complete discovery.

(2) The scheduling order may also include:

(A) modifications of the times to conduct and respond to discovery, and of the extent of discovery to be permitted;

(B) provisions for the disclosure, discovery, or preservation of electronically stored information;

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

(D) mediation or settlement conference particulars;

(E) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced; and

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

Subjects for Consideration at Pretrial Conferences. Matters for Consideration. At any pretrial conference, the court may consider and take appropriate action on the following matters:

(1) formulating and simplifying the issues, and eliminating frivolous claims or defenses;

(2) amending the pleadings if necessary or desirable;

(3) obtaining admissions and stipulations about facts and documents to avoid unnecessary proof, and ruling in advance on the admissibility of evidence;

(4) avoiding unnecessary proof and cumulative evidence, and limiting the use of testimony under Commonwealth Rule of Evidence 702;

(5) determining the appropriateness and timing of summary adjudication under Rule 56

(6) controlling and scheduling discovery, including orders affecting disclosures and discovery under Rule 26 and Rules 29 through 37;

(7) identifying witnesses and documents, scheduling the filing and exchange of any pretrial briefs, and setting dates for further conferences and for trial;

(8) referring matters to a magistrate judge or a master;

(9) settling the case and using special procedures to assist in resolving the dispute when authorized by statute or local rule;

(10) determining the form and content of the pretrial order;

(11) disposing of pending motions;

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

(13) ordering a separate trial under Rule 42(b) of a claim, counterclaim, crossclaim, third-party claim, or particular issue;

(14) ordering the presentation of evidence early in the trial on a manageable issue that might, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c);

(15) establishing a reasonable limit on the time allowed to present evidence; and

(16) facilitating in other ways the just, speedy, and inexpensive disposition of the action. At least one of the attorneys for each party participating in any conference before trial must 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 its representative be present or reasonably available by telephone to consider possible settlement of the dispute.

Pretrial Orders. After any conference under this rule, the court should issue an order reciting the action taken. This order controls the course of the action unless the court modifies it.

Final Pretrial Conference and Orders. The order following a final pretrial conference must be modified only to prevent manifest injustice. The court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence. The conference must be held as close to the start of trial as is reasonable, and must be attended by at least one attorney who will conduct the trial for each party and by any unrepresented party. The court may modify the order issued after a final pretrial conference only to prevent manifest injustice.

Sanctions. If a party or a 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 a party’s attorney fails to participate in good faith, the court, upon motion or the court’s own initiative, may make such orders with regard thereto as are just, and. among others any of the orders provided in Rule 37(b)(2)(B)–(D). In lieu of or in addition to any other sanction, the court must require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with Rule 16, including attorney’s fees, unless the court finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.