Rule 16. Scheduling and Planning, Pretrial, and Final Pretrial Conferences and Orders

Advisory Commission Comments to Rules 16.01-16.06

Advisory Commission Comments

The rule introduces into state practice the familiar pre-trial procedures used in the federal courts. The use of the procedure lies within the discretion of the court.

Advisory Commission Comment [1995]

The revisions here are similar to the 1983 revisions to Fed. R. Civ. P. 16, which were designed to make the rule more effective in encouraging and enabling judges to manage the pretrial stages of litigation. Subsection 16.01 provides for scheduling and planning conference and orders, but unlike the federal rule, the judge’s use of these devices is not mandatory. Subsections 16.02 and 16.03 expand the purposes of pretrial conferences beyond the current rule’s focus on the trial to include various issues of pretrial practice. The final two sentences of subsection 16.03 clarify the authority of the judge to require the participation of persons having authority to enter into stipulations and, in an appropriate case, authority to settle the dispute. Subsection 16.03 recognizes that it is not always feasible, particularly when a governmental entity is a party, for the court to require the presence of a person with on-the-spot settlement authority, in which case the court may choose to require the participation only of a person who has a major role in recommending settlement. Subsection 16.06 specifies the judge’s authority to sanction parties for failure to participate appropriately in pretrial conferences.

Advisory Commission Comment [1997]

The new language allows a party to request a pretrial conference if the trial judge does not otherwise schedule one.

Advisory Commission Comment [2003]

The new language in the next to last sentence of Rule 16.01 is designed to encourage judges to make serious efforts to reduce the time that jurors are required to be at the courthouse when not directly involved in the case. When entering scheduling orders, judges should take this factor into consideration.

The new language in Rule 16.02(6) is designed to encourage judges to make serious efforts to reduce the time that jurors are required to be at the courthouse when not directly involved in the case. Pretrial conferences may greatly facilitate the efficient use of juror time by encouraging the pretrial resolution of evidentiary and other issues and the early preparation of jury instructions and juror notebooks.

Advisory Commission Comment [2009]

The amendment to Rule 16.01 is designed to alert the court to the possible need to address the handling of discovery of electronically stored information early in the litigation if such discovery is expected to occur. Rule 26.06 is amended to direct the parties to discuss discovery of electronically stored information if such discovery is contemplated in the action. In many instances, the court’s involvement early in the litigation will help avoid difficulties that might otherwise arise.

Rule 16.01 is also amended to include among the topics that may be addressed in the scheduling order any agreements that the parties reach to facilitate discovery by minimizing the risk of waiver of privilege or work-product protection. Rule 26.06 is amended to add to the discovery plan the parties’ proposal for the court to enter a case-management or other order adopting such an agreement. The parties may agree to various arrangements. For example, they may agree to initial provision of requested materials without waiver of privilege or protection to enable the party seeking production to designate the materials desired or protection for actual production, with the privilege review of only those materials to follow. Alternatively, they may agree that if privileged or protected information is inadvertently produced, the producing party may by timely notice assert the privilege or protection and obtain return of the materials without waiver. Other arrangements are possible. In most circumstances, a party who receives information under such an arrangement cannot assert that production of the information waived a claim of privilege or of protection as trial-preparation material.


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