Rule 16.2.Scheduling orders

Reporter’s Notes—2025 Amendment: Rule 16.2 is amended to reflect established practice. In practice, Rule 16.2 is implemented by agreement using individualized or standardized stipulations that combine discovery, case management, and mediation scheduling. The amendment to Rule 16.2(a) conforms to current practice to provide that a scheduling order may be entered on stipulation or motion, without the necessity for a pretrial or discovery conference. The rule continues to provide that an extension of an existing schedule requires a motion and showing of good cause. The intent of Rule 16.2 is “that the court maintain firm but reasonable control over the pace of litigation without forcing the litigants to meet deadlines that will make preparation and full airing of the case impossible. The court must consider this standard both in establishing cut-off dates and in ruling on requests for continuances or extensions.” V.R.C.P. 16.2, Reporter’s Notes. Former paragraph (v) is renumbered (b)(5) and amended to refer to the date at which “all discovery will be closed” instead of the date at which “the case will be tried.” It is usually impractical to include a trial date in an early scheduling order. The close of all discovery is the controlling deadline that triggers both trial scheduling under V.R.C.P. 40(a) and the cut off under V.R.C.P. 56(a) for summary judgment motions, unless otherwise agreed or ordered. A trial date may be included in an initial or modified order under new paragraph 16.2(b)(6), which is added to clarify that the list of permitted contents of a scheduling order is not exhaustive and may include other appropriate matters. See F.R.C.P. 16(b)(3)(B). This gives parties flexibility to address case-specific needs. For example, a scheduling order may limit the time to amend the pleadings, set the timing and sequence for disclosure of experts and for other discovery, provide the timing and method of how parties will comply with agreements for asserting claims of privilege or of protection as trial-preparation material, and schedule other matters necessary for the proper management of the case. Former paragraphs (i)–(v) are relabeled as paragraphs (b)(1)-(5). Other text of the rule is reorganized as separate subdivisions (a) through (d) with descriptive captions and changes made as a matter of style or for clarity, with no change of meaning.

Reporter’s Notes—2009 Amendment: V.R.C.P. 16.2 is amended as part of a series of amendments conforming the Vermont Rules of Civil Procedure to 2006 amendments of the Federal Rules of Civil Procedure that made specific provision for discovery of electronically stored information. See Reporter’s Notes to simultaneous amendment of V.R.C.P. 26. The present amendment is adapted from a 2006 amendment adding F.R.C.P. 16(b)(5), (6), to the permissible contents of a pretrial scheduling order “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” and to include “any agreements that the parties reach to facilitate discovery of by minimizing the risk of waiver of privilege or work product protection.” Advisory Committee’s Note to 2006 Amendment of F.R.C.P. 16(b).

Reporter’s Notes: Rule 16.2 is added to provide for a scheduling conference at which the court may set cut-off dates for actions by the parties and set a date for trial. This authorization is a result of the successful experiment with scheduling control— caseflow management—in the Washington Superior Court. See Administrative Order No. 22, 12 V.S.A. App. VIII, A.O. 22 (1981). The imposition of caseflow management techniques has been recommended by a number of commentators and organizations. The American Bar Association Commission on Standards of Judicial Administration, Standards Relating to Trial Courts provide in Standard 2.50: 2.50 Caseflow Management: General Principle. The court should supervise and control the movement of all cases on its docket from the time of filing through final disposition. Its management procedures should be applied impartially to all litigants, afford adequate attention to the merits of each case, and facilitate prompt determination of all cases. The commentary to the standard emphasizes that ensuring adequate consideration of cases without undue delay requires the court to exercise active supervision of its caseload. See also Will, Judicial Responsibility for the Disposition of Litigation, 75 F.R.D. 117 (1976); King, Management of Civil Case Flow from Filing to Disposition, 75 F.R.D. 155 (1976); Ryan, Lipetz, Luskin and Neubauer, Analyzing Court Delay—Reduction Programs: Why Do Some Succeed?, 65 Judicature 58 (1981); Longobardi, One Court Shares its Method for Unclogging Caseflow, 6 State Court J. 4 (1982); Defense Research Institute, Administration of Civil Justice Position Paper 33 (1981); National Center for State Courts, Managing to Reduce Delay 6-22 (1980). The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has proposed amendments to F.R.C.P. 16 to authorize pretrial conferences for scheduling and caseflow management. See 90 F.R.D. 451, 466 (1981). The purpose of the amendments is “to encourage pretrial management that meets the needs of modern litigation.” Id. at 470. The rule follows part of the approach of the federal proposal. It differs from the substance of Administrative Order No. 22 in that it authorizes a scheduling order, which can supersede rules on scheduling, continuances and time limits, but does not directly affect those rules. As a result, the trial court can be selective in its intervention, taking control of those cases that most need it and leaving the rest to be governed by the rules. Also, caseflow management can be implemented in each court as the judges, the clerk’s office and the lawyers are ready. For the same reasons, the rule does not make issuance of a scheduling order mandatory, as provided in the proposed federal rule. Rather than broadening the scope of the pretrial conference, as provided in the federal proposal, this rule allows scheduling issues to be considered at a pretrial conference held under Rule 16, a discovery conference held under Rule 26(f) or a special hearing called pursuant to this rule. Because the practice has been to hold Rule 16 pretrial conferences close to the date of trial, it would be rare that a scheduling order would come initially from such a conference. Paragraphs (i), (ii) and (iii) detail what may be in a scheduling order. It can, and normally would, set a date or dates by which all pretrial motions must be filed to avoid the delay that results from a motion—for example a motion for summary judgment under Rule 56—that is filed just before trial. For the same reason, the scheduling order should provide a cut-off date on bringing in new parties pursuant to Rule 14. Note that the cut-off date on motions would cover the additions of a party under Rule 17, 20 or 21. Paragraph (iii) authorizes the court to set a trial date or to set a date after which a case will be considered ready for trial and will be placed on a trial list pursuant to Rule 40(a)(2). The latter approach was provided in Administrative Order No. 22 because it is impossible to specially assign all cases. The effect is to take the case out of docket number sequence and place it on the list of cases ready for trial at a specific date and time. See Rule 40(a)(2). As in Rule 16, the scheduling order “controls the subsequent course of the action.” Further, the scheduling order takes precedence over any rule with respect to time. This language is necessary because many of the rules authorizing pretrial motions allow them to be made “at any time after the . . . . commencement of the action.” See, e.g., Rules 14(a), 56(a). Also, it makes clear that the scheduling order takes precedence over the docket sequence provision of Rule 40(a)(2). To ensure judicial control over all events, including trial, continuances or postponements require court approval on a showing of good cause. In this respect, the scheduling order, if it sets a trial date or a date after which a case is considered ready for trial, obviates the right to a continuance provided in Rule 40(c)(1) even if the case is not among the first twenty cases on a trial list. The rule embodies a protection for the litigants that is in Administrative Order No. 22. The scheduling order terms must be set “with reasonable accommodation to litigants and their counsel” and must be modified to “prevent manifest injustice.” The intent is that the court maintain firm but reasonable control over the pace of litigation without forcing the litigants to meet deadlines that will make preparation and full airing of the case impossible. The court must consider this standard both in establishing cut-off dates and in ruling on requests for continuances or extensions. The rule provides additional sanctions as in Administrative Order No. 22 and the proposed federal rule. The rule incorporates certain of the discovery sanctions since these are already familiar to lawyers and judges. Included among the sanctions are: an order refusing to allow the disobedient party to support or oppose designated claims or defenses, an order refusing to allow admission of designated matters in evidence, an order striking pleadings, an order staying proceedings, or an order dismissing the action, or a part of it, or rendering a default judgment. The latter sanctions are specifically provided for failure to appear at trial as directed. Those sanctions are intended to be in addition to those provided for failure to obey a court order. See Advisory Committee Note to Proposed Federal Rule 16, 90 F.R.D. 470, 477-78 (1981). Annotations Generally. Failure to comply. Unreasonable delay. Generally. Because the order imposed an invalid arbitration initiation obligation on defendant, defendant’s violation of the order could not support the award of a default judgment to plaintiff as a sanction. Even if the trial court could properly require that defendant initiate arbitration, default judgment was not a proper remedy in that this was not a scheduling order, this was not a flagrant violation meriting a litigation-ending sanction, and most important, there was no support in the Federal Arbitration Act, or the cases decided under it, to also impose a litigation-ending sanction on the party who waived the right to arbitrate. Hermitage Inn Real Estate Holding Co. v. Extreme Contr., LLC, 2017 VT 44, 205 Vt. 93, 170 A.3d 604, 2017 Vt. LEXIS 66 (2017). Failure to comply. Plaintiff failed to show that despite diligence he had good cause for filing belated motion to add claim for disability discrimination, based on information uncovered at his own deposition seven weeks earlier; trial court therefore did not err in denying plaintiff’s motion as untimely under scheduling order. Carpenter v. Central Vermont Medical Center, 170 Vt. 565, 743 A.2d 592, 1999 Vt. LEXIS 402 (1999) (mem.). Unreasonable delay. Plaintiff failed to show that despite diligence he had good cause for filing belated motion to add claim for disability discrimination, based on information uncovered at his own deposition seven weeks earlier; trial court therefore did not err in denying plaintiff’s motion as untimely under scheduling order. Carpenter v. Central Vermont Medical Center, 170 Vt. 565, 743 A.2d 592, 1999 Vt. LEXIS 402 (1999) (mem.).