USCIT R. 16

Rule 16-2 (3) Contents of the Order. (A) Required Contents. The scheduling order must limit the time to join other parties, amend the pleadings, complete discovery, and file and hear motions. (B) Permitted Contents. The scheduling order may: (i) modify the timing of disclosures under Rules 26(a) and 26(e)(1); (ii) modify the extent of discovery; (iii) provide for disclosure, 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 information is produced, including agreements reached under Federal Rule of Evidence 502; (v) direct that before moving for an order relating to discovery, the movant must request a conference with the court; (vi) set dates for conferences before submission of the action for final disposition, a final postassignment conference, and trial or submission of a dispositive motion; and (vii) include other appropriate matters. (4) Modifying a Schedule. A schedule may be modified only for good cause and with the judge's consent. Rule 16-3 (c) Attendance and Matters for Consideration at a Postassignment Conference. (1) Attendance. A represented party must authorize at least one of its attorneys to make stipulations and admissions about all matters that can reasonably be anticipated for discussion at a postassignment 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 postassignment 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 and stipulations about facts and documents to avoid unnecessary proof, and ruling in advance on the admissibility of evidence; (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 Rule 56; (F) controlling and scheduling discovery, including orders affecting disclosures and discovery under Rule 26 and Rules 29 through 37; (G) identifying witnesses and documents, scheduling the filing and exchange of any briefs, and setting dates for further conferences and for submission of the action for final disposition; Rule 16-4 (H) referring matters to a master; (I) settling or using extrajudicial procedures to resolve the dispute; (J) determining the form and content of the scheduling or other postassignment conference 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; (M) ordering a separate trial under Rule 42(b) of a claim, counterclaim, crossclaim, 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 under Rule 50(a) or a judgment on partial findings under Rule 52(c); (O) establishing a reasonable limit on the time allowed to present evidence; (P) accessing confidential or privileged information, including business proprietary information, contained in an administrative record, which is the subject of the action; and (Q) facilitating in other ways the just, speedy, and inexpensive disposition of the action. Rule 16-5 (d) 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 Postassignment Conference and Orders. The court may hold a final postassignment conference to formulate a plan for submission of the action for final disposition. The conference must be held as close to the submission of the action for final disposition as is reasonable, and must be attended by at least one of the attorneys on behalf of each of the parties and any unrepresented parties. The court may modify the order issued after a final postassignment 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 authorized by Rule 37(b), if a party or its attorney: (A) fails to appear at a scheduling or other postassignment 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 postassignment conference order. (2) 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 attorney's fees — incurred because of any Rule 16-6 noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust. PRACTICE COMMENT: The attorneys for the parties and any unrepresented parties are expected to consult prior to a postassignment conference. The consultations should pertain to such matters as: access to the confidential portions of the administrative record, if any; the definition of the issues; whether discovery is necessary or permissible; and, the establishment of a proposed discovery schedule, if it is agreed that discovery will be conducted. PRACTICE COMMENT: A party may seek expedited consideration under Rule 3(g). For possible applicability of other scheduling rules, see practice comment to Rule 3(g). PRACTICE COMMENT: Notwithstanding a scheduling order setting a single date for the filing of dispositive motions, a party may include a cross-motion for summary judgment in a response to a motion for summary judgment unless the court orders otherwise. (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988; Nov. 29, 1995, eff. Mar. 31, 1996; Aug. 29, 2000, eff. Jan. 1, 2001; Dec. 18, 2001, eff. Apr.1, 2002; Sept. 30, 2003, eff. Jan. 1, 2004; Nov. 27, 2007, eff. Jan. 1, 2008; Nov. 25, 2008, eff. Jan. 1, 2009; Aug. 2, 2010, eff. Sept. 1, 2010; Mar. 20, 2018, eff. Apr. 23, 2018.)