Pretrial Conferences; Scheduling;

Management (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: (1) expediting 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) improving the quality of the trial through more thorough preparation; (5) facilitating settlement; and (6) assessing motions. (b) Scheduling. the utility of dispositive (1) Scheduling Order. The court must issue a scheduling order: (A) after receiving the parties’ Joint Preliminary Status Report under Appendix A, paragraphs 4–6; or (B) after consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference. (2) Time to Issue. The court must issue the scheduling order as soon as practicable after the filing of the Joint Preliminary Status Report, but in any event within 14 days after any preliminary scheduling conference. (3) Contents of the Order. (A) Required Contents. The scheduling order must limit the time to join other pleadings, parties, complete file and motions. the discovery, amend (B) Permitted Contents. The scheduling order may: (i) modify the timing of disclosures under RCFC 26(a) and 26(e)(1); (ii) modify the extent of discovery; (iii) provide disclosure, for discovery, or preservation of electronically stored information; (iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after produced, information including agreements reached under Federal Rule of Evidence 502; is (v) direct that before moving for an order relating to discovery, the movant must a conference with the court; (vi) set dates for pretrial conferences request and for trial; (vii) direct that the parties file any of the submissions set out in Appendix A ¶¶ 14, 15, 16, or 17; and (viii) include matters. appropriate other (4) Modifying a Schedule. A schedule may be modified only for good cause and with the judge’s consent. (c) Attendance and Matters for Consideration at a Pretrial Conference. (1) Attendance. A represented party must authorize at least one of its attorneys to 27 RCFC 16 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. (2) Matters for Consideration. At any pretrial conference, the court may consider and take appropriate action on the following matters: (A) formulating and simplifying the issues, and eliminating frivolous claims or defenses; (B) amending the pleadings if necessary or desirable; (C) obtaining admissions about and and stipulations documents to avoid unnecessary proof, and ruling in advance on the admissibility of evidence; facts (D) avoiding unnecessary proof and cumulative evidence, and limiting the use of testimony under Federal Rule of Evidence 702; (E) determining the appropriateness and timing of summary adjudication under RCFC 52.1 and 56; (F) controlling (G) identifying scheduling and discovery, including orders affecting disclosures and discovery under RCFC 26 and RCFC 29 through 37; and documents, scheduling the filing and exchange of any pretrial briefs, and setting dates for further conferences and for trial; witnesses (M) ordering a separate trial under RCFC 42(b) of a claim, counterclaim, third- party claim, or particular issue; (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 or a judgment on partial findings under RCFC 52(c); (O) establishing a reasonable time limit on the time allowed to present evidence; and (P) facilitating in other ways the just, speedy, and inexpensive disposition of the action. (d) Pretrial Orders. After any conference under this rule, the court should issue an order reciting the action taken. This order controls the course of the action unless the court modifies it. (e) Final Pretrial Conference and Orders. The court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence. The conference must be held as close to the start of trial as is reasonable, and must be attended by at least one attorney who will conduct the trial for each party and by any unrepresented party. The court may modify the order issued after a final pretrial conference only to prevent manifest injustice. (f) Sanctions. (1) In General. On motion or on its own, the court may issue any just orders, including those RCFC 37(b)(2)(A)(ii)–(vii), if a party or its attorney: (A) fails to appear at a scheduling or authorized by (H) referring matters to a master; (I) settling the case and using special procedures to assist in resolving the dispute; (J) determining the form and content of the pretrial order; (K) disposing of pending motions; (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; other pretrial conference; (B) is substantially unprepared to participate—or does not participate in good faith—in the conference; or (C) fails to obey a scheduling or other pretrial order. (2) Improper Disclosures. On motion or on its own, the court may issue any just orders, as specified above, if a party (or its attorney) to an Alternative Dispute Resolution (ADR) proceeding discloses the following information to a judge, RCFC 16 cont. 28 counsel, or party not a part of the ADR proceeding: (A) documents or materials produced solely for the ADR proceeding; or (B) communications made within the scope of the ADR proceeding. (3) Imposing Fees and Costs. Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses— including fees—incurred because of any noncompliance with this rule, unless the noncompliance was substantially other justified circumstances make an award of expenses unjust. attorney’s or 2016 Amendment RCFC 16 has been amended in accordance with the corresponding changes to FRCP 16 that became effective December 1, 2015. In addition, RCFC 16(f) has been amended by adding a new paragraph (2) to include as a sanctionable action the disclosure of information produced in connection with an ADR proceeding conducted pursuant to Appendix H. (g) Additional Pretrial Procedures. See rules (“Case for additional Appendix A these Management Procedure”) provisions controlling pretrial procedures. to (As revised and reissued May 1, 2002; as amended Nov. 15, 2007, Nov. 3, 2008, Aug. 1, 2016.) Rules Committee Notes 2002 Revision RCFC 16 has been completely revised to parallel its the structure and content of counterpart in the FRCP. The limited number of changes to the current FRCP reflect those deemed necessary to accommodate procedural requirements particular to this court. Except for these changes, the rule shown conforms fully to the text of FRCP 16. 2007 Amendment Subdivision (b) of RCFC 16 has been amended by the addition of subparagraphs 5 and 6 to reflect the corresponding changes to FRCP 16. 2008 Amendment The language of RCFC 16 has been amended to conform to the general restyling of the FRCP. In addition, reference to RCFC 26(e)(1) (“Supplementing Disclosures and Responses”) was added to RCFC 16(b)(3)(B)(i) to conform to the FRCP. 29 RCFC 16 cont. TITLE IV. PARTIES