16.01 Scheduling and Planning Conferences and Orders.
1 In any action, the court may in its discretion, or upon motion of any party, conduct a conference with the attorneys for the parties and any unrepresented parties, in person or by telephone, mail, or other suitable means, and thereafter enter a scheduling order that limits the time:
A to join other parties and to amend the pleadings;
B to file and hear motions; and
C to complete discovery.
2 The scheduling order also may include:
A the date or dates for conferences before trial, a final pretrial conference, and trial;
B provisions for the discovery of electronically stored information;
C any agreements the parties reach for asserting claims of privilege or of protection as to trial- preparation material after production, or in reference to electronically stored information; and
D any other matters appropriate in the circumstances of the case.
3 In deciding the content of any scheduling order, the court shall give consideration to minimizing the time that jurors are not directly involved in the trial or deliberations. A schedule once ordered shall not be modified except by leave of the judge upon a showing of good cause.
16.02 Pretrial Conferences; Objectives. In any action, the court may in its discretion, or upon motion of any party, direct the attorneys for the parties and any unrepresented parties to participate in a pretrial conference or conferences in person or by telephone, mail, or other suitable means, 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 encouraging more thorough trial preparation;
5 facilitating the settlement of the case; and
6 minimizing the time that jurors are not directly involved in the trial or deliberations.
16.03 Subjects to be Discussed at Pretrial Conferences. The participants at any conference under this rule may consider and take action with respect to:
1 the formulation and simplification of the issues, including the elimination of frivolous claims or defenses;
2 the necessity or desirability of amendments to the pleadings;
3 the possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence;
4 the avoidance of unnecessary proof and of cumulative evidence;
5 the identification of witnesses and documents, the need and schedule for filing and exchanging pretrial briefs, and the date or dates for further conferences and for trial;
6 the advisability of referring matters to a master;
7 the possibility of settlement or the use of extrajudicial procedures, including alternative dispute resolution, to resolve the dispute;
8 the form and substance of the pretrial order;
9 the disposition of pending motions;
10 the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems; and
11 such other matters as may aid in the disposition of the action. At least one of the attorneys for each party participating in any conference before trial shall 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 a representative with authority to settle the action be present or reasonably available by telephone in order to consider possible settlement of the dispute.
16.04 Final Pretrial Conference. Any final pretrial conference shall be held as close to the time of trial as reasonable under the circumstances. The court may order the participants at any such conference to formulate a plan for trial, including a program for facilitating the admission of evidence. The conference shall be attended by at least one of the attorneys who will conduct the trial for each of the parties and by any unrepresented parties.
16.05 Pretrial Order. After any conference held pursuant to this rule, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only for good cause shown.
16.06 Sanctions. If a party or 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 party's attorney fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37.02. In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.
Rule 16.01 lets a court, on its own initiative or a party’s motion, hold a scheduling and planning conference — in person, by phone, by mail, or by other suitable means — and enter a scheduling order limiting the time to join parties, amend pleadings, file and hear motions, and complete discovery. The order may also set dates for pretrial and trial conferences, address discovery of electronically stored information, record any agreement on privilege claims, and cover other matters suited to the case; once entered, it can be modified only on a showing of good cause.
Rule 16.02 lets the court direct the attorneys and any unrepresented parties to a pretrial conference aimed at expediting the case, establishing early management so it does not drag on for lack of oversight, discouraging wasted pretrial activity, encouraging thorough preparation, facilitating settlement, and minimizing the time jurors spend waiting outside the trial or deliberations. Rule 16.03 lists what the participants may take up at such a conference — narrowing the issues, weeding out frivolous claims or defenses, exploring stipulations and admissions, identifying witnesses and documents, considering referral to a master, and exploring settlement or other dispute-resolution options, among other matters — and requires at least one attorney for each party to have authority to enter stipulations and make admissions on matters the conference will reasonably cover.
Rule 16.04 requires any final pretrial conference to be held as close to trial as is reasonable and lets the court direct the participants to formulate a trial plan. Rule 16.05 requires an order after every conference reciting the action taken, which then controls the rest of the case unless later modified, with the order from a final pretrial conference modifiable only to prevent manifest injustice. Rule 16.06 lets the court sanction a party or attorney who disobeys a scheduling or pretrial order, fails to appear at a conference, or shows up substantially unprepared to participate.
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.