Rutter Guide Civil Procedure Before Trial Chapters- Discovery PDF

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Rutter Guide Civil Procedure Before Trial Chapters § 15A.1-4, 11(V)-B.2.a-h A. Pretrial Conferences and Scheduling Orders

1. [15:1] General Considerations: Federal judges may hold scheduling conferences and pretrial conferences in any action not exempt under local rules. The court must issue orders controlling the litigation from the outset and after any pretrial conferences. [See FRCP 16(a), (b) & (e)]

a. [15:2] Purposes: Pretrial conferences may serve several purposes:  expediting the action;  establishing judicial control of the action;  discouraging wasteful pretrial activities;  identifying and narrowing the issues;  preparing the action for trial; and  facilitating settlement. [FRCP 16(a)] b. [15:3] Case management: Rule 16 empowers the judge to whom the case is assigned to supervise each stage of the action, including pleadings, discovery and pretrial motions. Thus, the pace of litigation is set by the court, not by the attorneys. Recall, however, that under Rule 1, both the court and the parties must administer the federal rules to achieve the “just, speedy, and inexpensive determination” of every action. [FRCP 1] (1) [15:4] Scheduling orders: Except in categories of actions exempted by local rule, the court is required to issue a scheduling order, setting time limits on pleadings, pretrial motions and discovery. [FRCP 16(b)(1); see ¶ 15:9 ff., 15:22 ff.] (2) [15:5] Pretrial conferences: Rule 16 also permits the court to hold one or more pretrial conferences. The lawyers are required to attend, and the court may require the parties to attend. The court may also consider and take action on a wide variety of pretrial and trial issues. [FRCP 16(c)(1), (2); see ¶ 15:34 ff.] (3) [15:5.1] Final pretrial conference: If a final pretrial conference is held, it must be scheduled as close to the time of trial as possible, and many local court rules require the attendance of the attorney trying the case. [FRCP 16(e); CD CA Rule 16-13; SD CA Rule 16.1(f)(7); see further discussion at ¶ 15:55 ff.] (4) [15:5.2] “Complex” litigation: To avoid undue burdens on the court and the litigants, special case management techniques may be required in litigation involving many parties in numerous related cases that have large numbers of witnesses and documents and extensive discovery. Federal courts may use techniques and procedures described in the “Manual for Complex Litigation” published by the Federal Judicial Center.

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In complex cases involving actions pending throughout the country, parties can, under rules governing multidistrict litigation, have the actions transferred to a single district for case management.

c. [15:6] Sanctions: Rule 16 specifically provides for sanctions—including default or dismissal—if a party or a party's attorney fails to appear, be prepared, participate in good faith, or obey a scheduling or pretrial order. [FRCP 16(f); see ¶ 15:78 ff.]

d. [15:7] Local rules and policies: Local rules and Rule 16 regulate pretrial conference proceedings. Moreover, individual federal judges often have special policies and procedures in addition to the local rules. Most federal judges take a very active role in directing the litigation. ➪ [15:7.1] PRACTICE POINTER: Most federal judges issue standing orders at the commencement of the case to set their particular requirements, including the parties’ obligations for pretrial conferences. Read these orders carefully and comply to the letter.  Be scrupulous in your compliance with all rules and policies. Most federal judges strictly enforce them. Sanctions may be imposed even for mere inadvertence (see ¶ 15:81 ff.). 2. [15:8] Early Party Conference and Discovery Plan: Unless the court orders otherwise or the action is exempt from initial disclosure requirements, the parties must “confer” in order to:  consider the nature and basis of their claims and defenses;  consider the possibility of settlement;  make or arrange for the initial disclosure of witnesses and documents required by FRCP 26(a)(1); and  prepare a proposed discovery plan to assist the court in fashioning an appropriate scheduling order (see ¶ 11:50). [FRCP 26(f)(2)] The parties are jointly responsible for arranging the conference and for attempting in good faith to agree on the proposed discovery plan. [FRCP 26(f)(2)] a. [15:8.1] Timing: The parties must confer “as soon as practicable” and at least 21 days before the first scheduling conference is held or the date when the mandatory Rule 16(b) scheduling order is due (see ¶ 15:15). [FRCP 26(f)(1)]  Since the court ordinarily must issue a scheduling order within the earlier of 90 days after any defendant has been served or 60 days after any defendant has appeared (FRCP 16(b)(2), ¶ 15:15), the parties generally should hold their discovery conference at least 21 days before the 90-day mark.

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Caution: Participation in filing a Rule 26 report may implicitly waive any procedural defect in removal. [See Smith v. Mylan Inc. (9th Cir. 2014) 761 F3d 1042, 1046] (1) [15:8.2] Expedited schedules: If an expedited schedule for Rule 16(b)conferences is in effect, local rules may require the parties to confer fewer than 21 days before the scheduling conference and submit their discovery plan report fewer than 14 days after they confer. [FRCP 26(f)(4)(A)]

b. [15:8.5] Meeting in person not required: Unless the court orders the parties or attorneys to attend in person, they may “confer” in any manner—e.g., by telephone or email. [See FRCP 26(f)(1)]  Some local rules require the “lead trial counsel for each party” to do the conferring and planning. [ND CA Rule 16-3; CD CA Rule 16-2] ➪ [15:8.6] PRACTICE POINTER: Even if not required, where possible try to meet opposing counsel in person. In-person meetings are likely to be more productive and may assist in building a positive relationship that will enable the case to proceed efficiently and without unnecessary acrimony. c. [15:8.10] Where fewer than all defendants served: The early conference requirement is triggered upon the appearance of a single defendant.  That defendant must participate in the early conference, even if it has filed a FRCP 12 motion to dismiss the case. [See Adv. Comm. Notes to 1993 Amendments to FRCP 26(a)(1)]  (1) [15:8.11] Later-served defendants: Parties joined or served after the early conference have 30 days after being served or joined within which to make their initial disclosures, unless a different time is set by stipulation or court order. [FRCP 26(a)(1)(D)]  [15:8.12] Where original parties excused from disclosure: It is expected that later-added parties will ordinarily be treated the same as the original parties when the original parties have stipulated to forgo initial disclosure or the court has ordered disclosure in a modified form. [See Adv. Comm. Notes to 2000 Amendments to FRCP 26(a)(1)] d. [15:8.15] Discovery plan filed with court: A written report outlining the proposed discovery plan must be filed with the court within 14 days after the parties' initial conference. [FRCP 26(f)(2)] (1) [15:8.16] Expedited schedules: If necessary to comply with scheduling conference requirements, the court may require that the discovery plan report be filed in fewer than 14 days after the early conference. Alternatively, the court may excuse the written report and permit the parties to report orally on their discovery plan at the scheduling conference. [FRCP 26(f)(4)(B)] (2)[15:8.17] Contents of discovery plan: The discovery plan shall indicate the parties' views and proposals concerning:

what changes, if any, should be made to the timing, form or requirement of initial disclosures under Rule 26(a)(1) (¶ 11:226)  subjects on which discovery may be needed, when that discovery should be completed and whether it should be conducted in phases or focused on particular issues;  any issues relating to disclosure, discovery or preservation of electronically-stored information, including the form or forms in which it should be produced;  any issues relating to claims of privilege or protection of trial preparation material, and if the parties agree upon a procedure to assert such claims after production, whether to seek a court order under FRE 502 adopting their agreement;  what changes, if any, should be made to the limitations on discovery imposed by Rule 26 or by local rule; and  any other orders that should be entered relating to discovery. [FRCP 26(f)(3)(A)-(F)] FORM: A sample Rule 26(f) discovery plan is provided at the end of this chapter. See REPORT OF PARTIES' PLANNING MEETING, Form 15:A. ➪ [15:8.18] PRACTICE POINTER: While some judges may embrace this sample form verbatim, others may require additional information. Review the judge's standing orders and the court's website to determine whether there are any “local, local” policies on the content of the discovery plan. ➪ [15:8.19] FURTHER PRACTICE POINTER: The court often relies on the discovery plan report in fixing the deadlines in the scheduling order to which the attorneys will be bound. Therefore, analyze the claims and defenses involved carefully to come up with realistic deadlines for discovery and motions and trial time estimates. ➪ [15:8.20] PRACTICE POINTER RE ELECTRONIC DISCOVERY: Counsel must become familiar with the client’s computer systems and email procedures before the early meeting with opposing counsel. The most effective way to control the exploding cost of electronic discovery is to confer with the other side and develop search terms or objective search criteria by which discovery will be conducted.  See McNulty v. Reddy Ice Holdings, Inc. (ED MI 2011) 271 FRD 569, 571  The court will expect you to anticipate (and do your best to resolve) such issues as:  sources and types of media to be searched and not to be searched (which thus can be safely destroyed);  the relevant time period for such search (obviating the need to search storage media for a broader period);  the form or forms in which information is to be produced;  ways in which to reduce production of duplicate electronicallystored information;  sampling, proportionality and other search protocols; 

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burden of costs in producing such information; the scope of preservation of potentially discoverable electronic data (because courts may not routinely enter preservation orders); procedures to avoid inadvertent waiver of privilege or work product protection as to the information produced. This includes both “quick peek” agreements (pursuant to which data is produced for initial examination without screening for privilege and privilege objections reserved until a formal demand for production is served), as well as “clawback” agreements (allowing the responding party to assert privilege claims after production and obligating the discovering party to return privileged information). [See Adv. Comm. Note to 2006 Amendment to FRCP 26(f); see also FRCP 34; Manual for Complex Litigation (4th) § 40.25(2)]

➪ [15:8.21] PRACTICE POINTER RE PATENT ACTIONS: Many districts have established separate pretrial procedures and rules governing patent actions. These rules address issues to be raised at the case management conferences, disclosures and related topics. [See ND CA Patent Rules 3-1 ff.; ED TX Patent Rules 3-1 ff.] These rules contain provisions relating to various case management topics, including:  disclosures of each claim of each patent in the suit, including separate disclosure for each accused apparatus, product, device, process, method, act or other instrumentality;  production of charts identifying where each limitation or element of each asserted claim is found within each;  disclosures identifying the acts of direct and indirect infringement;  service of “invalidity contentions” that identify each item of prior art that allegedly anticipates each asserted claim or renders it obvious; and  claim construction briefs and hearings. 3. [15:9] Scheduling Conference (“Initial Status Conference” or “Initial Case Management Conference”): Except as otherwise provided by local rule, a “scheduling order” is required in all cases.  Before issuing such an order, the court must have either received the parties' Rule 26(f) discovery plan (see ¶ 15:8.15) or consulted with the attorneys and any unrepresented parties at a scheduling conference. [FRCP 16(b)(1)(B)]  The scheduling conference may be conducted “in person, by telephone, or by more sophisticated electronic means.” [Adv. Comm. Note to 2015 Amendment to FRCP 16(b)(1)(B)—conferences are “more effective” if court and parties engage in “direct simultaneous communication”]

In most courts, an in-person scheduling conference is held for this purpose (often called “initial scheduling conference” or “initial case management conference”). [See ED CA Rule 240; ND CA Rule 16-10(a); SD CA Rule 16-1(d)] a. [15:10] Cases exempt: Local rules may exempt various categories of cases from the requirement of a scheduling order. [See FRCP 16(b)(1)] Local rules may provide no scheduling conference is required in cases exempt from initial disclosure requirements (FRCP 26(a)(1)(B) (e.g., administrative review, student loan collection actions, etc.)). [See ND CA Rule 16-7; CD CA Rule 16-12] Other exemptions under local rules include:  actions to enforce arbitration awards;  actions to enforce judgments;  civil rights actions by pro se prisoners;  collection actions on federal loans involving less than $25,000;  actions removed from a small claims court;  cases in which the plaintiff is appearing pro se and is not an attorney;  cases in which a substantial number of defendants have not answered. [CD CA Rule 16-12; ED CA Rule 240(c); SD CA Rule 16.1(e)] 

b. [15:11] Time for conference: The initial status conference (“scheduling conference”) must be held before the scheduling order (¶ 15:15) is issued; this means that the conference usually takes place within 90 days after service of the complaint on any defendant (¶ 15:15). [FRCP 16(b)(2)]  [15:12] In some courts, the initial status conference is scheduled when the action is filed, and notice thereof is attached to the complaint when served. [See ND CA Rule 16-2(a)—not less than 90 days after commencement]  [15:14] Continuances: A scheduling conference may be continued only on order of the assigned judge. No continuance may be granted merely on the parties' stipulation. [ND CA Rule 162(e); CD CA Rule 16-9—final pretrial conference only]  If additional defendants are served after a scheduling conference is held, additional conferences may be ordered at a later date. [See ND CA Rule 16-10(c)] c. [15:15] Time for scheduling order: Unless the judge finds “good cause for delay,” the scheduling order must issue within the earlier of:  90 days after any defendant has been served with the complaint; or  60 days after any defendant has appeared. [FRCP 16(b)(2); see Johnson v. Mammoth Recreations, Inc. (9th Cir. 1992) 975 F2d 604, 608—scheduling order entered after deadline under former Rule not invalid where court first communicated with parties]

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[15:15.1] Comment: This may create problems in a multidefendant case. The scheduling order may issue before all defendants have appeared in the action. [See ND CA Rule 16-2(d) —court can modify schedule to accommodate new parties]

d. Conduct of conference (1) [15:16] Judge presiding: The scheduling conference is to be conducted by the judge to whom the case is assigned or by a magistrate judge if so authorized by local rule. [FRCP 16(b)(1)] (2) [15:17] Who must attend: The court may order the attorneys and any unrepresented parties to appear at the scheduling conference. [FRCP 16(c)(1)]  Some local rules require attendance by the attorney who is expected to try the case. [See ND CA Rule 16-10(a); SD CA Rule 16.1(d); CD CA Rule 16-13]  Even if not mandated by local rules, judges' standing orders may require lead trial counsel to attend the pretrial conference.  At least one of the attorneys for each party must have authority to enter into stipulations and make admissions regarding all matters considered at the conference. Where appropriate, the court may require that a party or its representative be present or available by telephone to consider possible settlement. [FRCP 16(c)(1); see ¶ 15:114] (3) [15:18] Ruling on objections to initial disclosures: If during the early conference a party objects that initial disclosures are not appropriate in the circumstances (see ¶ 11:300), the court will rule on the objection at the initial scheduling conference and determine what disclosures need be made and set a time for such disclosures. [FRCP 26(a)(1)(C)] (4) [15:19] Topics to be covered: The parties at the scheduling conference must be prepared to discuss deadlines for (a) joining parties and amending pleadings; (b) filing and hearing motions; and (c) completing discovery. They should also be prepared to discuss dates for the pretrial conference(s) and trial and any other matter that may aid in disposition of the action. [See FRCP 16(c)(2)(A)-(P)]  Rule 16 also includes as a topic for consideration the elimination of frivolous claims or defenses. [FRCP 16(c)(2)(A); see Blakely v. USAA Cas. Ins. Co. (10th Cir. 2011) 633 F3d 944, 949-950—abuse of discretion to dismiss bad faith claim at Rule 16 conference because claim did not lack arguable basis, nor was it wholly incredible] a. [15:20] Local rules: Local rules may specify topics to be covered at the scheduling conference, such as: i. complexity of case, and whether all or part of the Manual for Complex Litigation should be used; ii. schedule for any dispositive or partially dispositive motions likely to be made;

iii. whether settlement discussions have been held or are likely; iv. which ADR procedures should or may be used; v. trial time estimate; vi. likelihood of appearance of additional parties; vii. expert witness disclosure schedule. [See ND CA Rule 1610(b); SD CA Rule 16.1(d); ED CA Rule 282] b. [15:21] ADR certification: Some courts require the parties and their counsel to certify they have considered available ADR procedures before the initial scheduling conference. [See CD CA Rule 16-15.2 (parties must select an ADR procedure and file their selection, signed by counsel for both sides, with the parties' FRCP 26(f) report); ND CA Rule 16-8(b), (c); also see ¶ 15:89 ff.] c. [15:21a] Individual judge's policies: In addition, individual judges have their own policies as to the matters to be discussed at the scheduling conference. For example: i. whether the parties consent to have all further proceedings, including trial, conducted in front of a magistrate judge; ii. whether discovery should be conducted in phases; iii. a date for any supplementation of discovery after close of formal discovery; iv. a list of the elements of proof necessary for each count of the complaint and each affirmative defense, and if applicable, each counterclaim; v. the need for evidentiary hearings, including Daubert hearings; and vi. any other topic unique to the assigned judge. [See Wells Real Estate Investment Trust II, Inc. v. Chardon/Hato Rey Partnership, S.E. (1st Cir. 2010) 615 F3d 45, 58—judge required requests for production of documents and interrogatories be made at initial scheduling conference] ➪ [15:21.1] PRACTICE POINTER: Even at the first conference, counsel should be prepared to discuss all aspects of the action, be thoroughly familiar with the facts and law, and be able to give a reliable estimate of the time for trialand agree on an available trial date. Judges can form early impressions about the merits of the case and the quality of counsel at this conference.  Be prepared to argue any pending motions at the time of the conference (see FRCP 16(c)(2)(J)).  Suggest to the court a schedule you can live with before the scheduling order is made. The judge usually is willing to accommodate conflicting trial dates, vacations, etc. Once the scheduling order is entered, however, the judge may be less accommodating.

Alert the court to any unique issues in your case—for example, anticipated discovery disputes (e.g., re claims of privilege); the need to expanddiscovery beyond “relevant to claims an...