Rule 16 – Pretrial Conferences; Scheduling; Management

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Amendments Effective Dec. 1, 2015

\r\nAmendments | Summary of Changes | Committee Note | Complete Amended Rule | Additional Resources\r\nRule 16 Amendments in Complete Rule: (b)(1)(B) | (b)(2) | (b)(3)(B)(iii) | (b)(3)(B)(iv) | (b)(3)(B)(v) | (b)(3)(B)(vi) | (b)(3)(B)(vii)\r\n


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Amended Rule 16(b)

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(b) Scheduling.

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(1) Scheduling Order. Except in categories of actions exempted by local rule, the district judge — or a magistrate judge when authorized by local rule — must issue a scheduling order:

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(A) after receiving the parties’ report under Rule 26(f); or

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(B) after consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference by telephone, mail, or other means.[CN 1]

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(2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but in any eventunless the judge finds good cause for delay, the judge must issue it within the earlier of 12090 days after any defendant has been served with the complaint or 9060 days after any defendant has appeared.[CN 2]

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(3) Contents of the Order.

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* * * * *

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(B) Permitted Contents. The scheduling order may:

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* * * * *

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(iii) provide for disclosure, ordiscovery, or preservation of electronically stored information;[CN 3]

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(iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced, including agreements reached under Federal Rule of Evidence 502;[CN 4]

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(v) direct that before moving for an order relating to discovery, the movant must request a conference with the court;[CN 5]

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(vvi) set dates for pretrial conferences and for trial; and

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(vivii) include other appropriate matters.

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* * * * *

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Amended Effective
Apr. 29, 2015 Dec. 1, 2015
Apr. 30, 2007 Dec. 1, 2007
Apr. 12, 2006 Dec. 1, 2006
Apr. 22, 1993 Dec. 1, 1993
Mar. 2, 1987 Aug. 1, 1987
Apr. 28, 1983 Aug. 1, 1983

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Summary of Changes

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Committee Note

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[CN 1] The provision for consulting at a scheduling conference by “telephone, mail, or other means” is deleted. A scheduling conference is more effective if the court and parties engage in direct simultaneous communication. The conference may be held in person, by telephone, or by more sophisticated electronic means.

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[CN 2] The time to issue the scheduling order is reduced to the earlier of 90 days (not 120 days) after any defendant has been served, or 60 days (not 90 days) after any defendant has appeared. This change, together with the shortened time for making service under Rule 4(m), will reduce delay at the beginning of litigation. At the same time, a new provision recognizes that the court may find good cause to extend the time to issue the scheduling order. In some cases it may be that the parties cannot prepare adequately for a meaningful Rule 26(f) conference and then a scheduling conference in the time allowed. Litigation involving complex issues, multiple parties, and large organizations, public or private, may be more likely to need extra time to establish meaningful collaboration between counsel and the people who can supply the information needed to participate in a useful way. Because the time for the Rule 26(f) conference is geared to the time for the scheduling conference or order, an order extending the time for the scheduling conference will also extend the time for the Rule 26(f) conference. But in most cases it will be desirable to hold at least a first scheduling conference in the time set by the rule.

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Three items are added to the list of permitted contents in Rule 16(b)(3)(B).

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[CN 3] The order may provide for preservation of electronically stored information, a topic also added to the provisions of a discovery plan under Rule 26(f)(3)(C). Parallel amendments of Rule 37(e) recognize that a duty to preserve discoverable information may arise before an action is filed.

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[CN 4] The order also may include agreements incorporated in a court order under Evidence Rule 502 controlling the effects of disclosure of information covered by attorney-client privilege or work-product protection, a topic also added to the provisions of a discovery plan under Rule 26(f)(3)(D).

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[CN 5] Finally, the order may direct that before filing a motion for an order relating to discovery the movant must request a conference with the court. Many judges who hold such conferences find them an efficient way to resolve most discovery disputes without the delay and burdens attending a formal motion, but the decision whether to require such conferences is left to the discretion of the judge in each case.

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Complete Amended Rule 16

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Rule 16. Pretrial Conferences; Scheduling; Management

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(a) 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:

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(1) expediting disposition of the action;

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

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(3) discouraging wasteful pretrial activities;

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(4) improving the quality of the trial through more thorough preparation; and

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(5) facilitating settlement.

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(b) Scheduling.

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(1) Scheduling Order. Except in categories of actions exempted by local rule, the district judge — or a magistrate judge when authorized by local rule — must issue a scheduling order:

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(A) after receiving the parties’ report under Rule 26(f); or

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(B) after consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference by telephone, mail, or other means.[CN 1]

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(2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but in any eventunless the judge finds good cause for delay, the judge must issue it within the earlier of 12090 days after any defendant has been served with the complaint or 9060 days after any defendant has appeared.[CN 2]

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(3) Contents of the Order.

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(A) Required Contents. The scheduling order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions.

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(B) Permitted Contents. The scheduling order may:

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(i) modify the timing of disclosures under Rules 26(a) and 26(e)(1);

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(ii) modify the extent of discovery;

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(iii) provide for disclosure, ordiscovery, or preservation of electronically stored information;[CN 3]

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(iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced, including agreements reached under Federal Rule of Evidence 502;[CN 4]

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(v) direct that before moving for an order relating to discovery, the movant must request a conference with the court;[CN 5]

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(vvi) set dates for pretrial conferences and for trial; and

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(vivii) include other appropriate matters.

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(4) Modifying a Schedule. A schedule may be modified only for good cause and with the judge’s consent.

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(c) Attendance and Matters for Consideration at a Pretrial Conference.

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(1) Attendance. A represented party must authorize at least one of its attorneys to make stipulations and admissions about all matters that can reasonably be anticipated for discussion at a pretrial conference. If appropriate, the court may require that a party or its representative be present or reasonably available by other means to consider possible settlement.

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(2) Matters for Consideration. At any pretrial conference, the court may consider and take appropriate action on the following matters:

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

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(B) amending the pleadings if necessary or desirable;

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

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

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

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

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

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

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

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

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(K) disposing of pending motions;

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

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

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(N) 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);

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

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(P) facilitating in other ways the just, speedy, and inexpensive disposition of the action.

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Additional Resources

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