The Initial Case Management Conference
and The Scheduling Order
Under Rule 26(d)
of the Federal Rules of Civil Procedure, parties may not serve written
discovery until they have conferred about discovery pursuant to Rule
26(f). See Fed. R. Civ. P. 26(d)(1). Under the Tennessee Rules of
Civil Procedure, plaintiffs can and often do serve written discovery
simultaneously with the Complaint and Summons. See Tenn. R. Civ. P.
33.01; Tenn. R. Civ. P. 34.02.
Under Rule 16(a)
of the Federal Rules of Civil Procedure, federal courts may order the parties
to appear for a case management conference. Although the Tennessee Rules of
Civil Procedure contain a similar provision, in practice, federal courts almost
always have case management conferences, and state courts rarely do.
Furthermore, even when the Tennessee state courts do have case management
conferences, they tend to be much later in the proceedings.
Federal courts
usually have an Initial Case Management Conference early in the proceedings.
Attorneys should be prepared to discuss their discovery plan at the Initial
Case Management Conference. If the case may have unusual discovery issues,
attorneys should use the Initial Case Management Conference as an opportunity
to address or preview them.
The result of the Initial Case
Management Conference will be the issuance of a scheduling order. Under Rule
16(b), the issuance of a scheduling order is, unlike under the Tennessee Rules
of Civil Procedure, mandatory. Specifically, Rule 16(b) states that the
district court "must issue a scheduling order" after receiving the
Rule 26(f) report or after consulting with the parties' attorneys. The rule
continues:
The judge must
issue the scheduling order as soon as practicable, but in any event within the
earlier of 120 days after any defendant has been served with the complaint or
90 days after any defendant has appeared.
Fed. R. Civ. P. 16(b)(2).
There are required and permissible
contents of the scheduling order as well. The scheduling order must include
deadlines for the following:
·
To
join other parties;
·
To
amend the pleadings;
·
To
file motions; and
·
To
complete discovery.
Fed. R. Civ. P. 16(b)(3)(A). The
order can also modify the times for Required Initial Disclosures and expert
disclosures, modify the extent of discovery, provide for disclosure or
discovery of electronically stored information, include any agreements the
parties reach for asserting claims of privilege or of protection as
trial-preparation material after information is produced, set dates for
pretrial conferences and for trial, and "include other appropriate
matters." Fed. R. Civ. P. 16(b)(3)(B).
Required Initial Disclosures
Perhaps the most
distinguishing feature of pre-trial litigation in federal court is the Required
Initial Disclosures. Pursuant to Rule 26(a)(1) of the Federal Rules of Civil
Procedure, litigants must disclose, without awaiting a discovery request, the
following information:
(i) the name and,
if known, the address and telephone number of each individual likely to have
discoverable information - along with the subjects of that information - that
the disclosing party may use to support its claims or defenses, unless the use
would be solely for impeachment;
(ii) a copy - or a
description by category and location - of all documents, electronically stored
information, and tangible things that the disclosing party has in its
possession, custody, or control and may use to support its claims or defenses,
unless the use would be solely for impeachment;
(iii) a
computation of each category of damages claimed by the disclosing party - who
must also make available for inspection and copying as under Rule 34 the
documents or other evidentiary material, unless privileged or protected from
disclosure, on which each computation is based, including materials bearing on
the nature and extent of injuries suffered; and
(iv) for
inspection and copying as under Rule 34, any insurance agreement under which an
insurance business may be liable to satisfy all or part of a possible judgment
in the action or to indemnify or reimburse for payments made to satisfy the
judgment.
Fed. R. Civ. P. 26(a)(1)(A).
Required Expert Disclosures
In Tennessee state
courts, expert discovery takes place solely by interrogatories and depositions.
Rule 26.02(4) of the Tennessee Rules of Civil Procedure states as follows:
Discovery of facts known and
opinions held by experts, otherwise discoverable under the provisions of subdivision
(1) of this rule and acquired or developed in anticipation of litigation or for
trial, may be obtained only as follows:
(A)(i) A party may
through interrogatories require any other party to identify each person whom
the other party expects to call as an expert witness at trial, to state the
subject matter on which the expert is expected to testify, and to state the
substance of the facts and opinions to which the expert is expected to testify
and a summary of the grounds for each opinion.
(ii) A party may also depose any other party's expert witness expected to testify at trial.
(ii) A party may also depose any other party's expert witness expected to testify at trial.
Tenn. R. Civ. P. 26.02(4). The
Tennessee Rules of Civil Procedure do not require expert reports.
Under the Federal
Rules of Civil Procedure, the expert disclosure requirements are more
demanding. Although the use of interrogatories and depositions is still
permitted, litigants must file a written expert report "if the witness is
one retained or specially employed to provide expert testimony in the case or
one whose duties as the party's employee regularly involve giving expert
testimony." Fed. R. Civ. P. 26(a)(2)(B). Note that a written expert report
is not required for expert witnesses who are not "retained or specially
employed to provide expert testimony" (such as treating physicians) or who
are a party's employee but whose duties do not regularly involve giving expert
testimony (which is many, if not most, employee experts). Therefore, it is important
that expert interrogatories always be posed in federal court despite the expert
report requirement.
The written expert report must be
prepared and signed by the witness. Fed. R. Civ. P. 26(a)(2)(B). It must
include the following:
(i) a complete
statement of all opinions the witness will express and the basis and reasons
for them;
(ii) the data or other information considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
(ii) the data or other information considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
Discovery (Other Than Required Initial
Disclosures)
Interrogatories in
federal court are limited to 25. See Fed. R. Civ. P. 33(a)(1). The
Tennessee Rules of Civil Procedure do not contain a limit on the number of
interrogatories. However, many state courts limit the number of interrogatories
to 30 by local rule. The Federal Rules of Civil Procedure require discrete
subparts to be counted as separate interrogatories. Parties may obtain leave to
serve additional interrogatories.
Depositions do not
have specific duration and numerosity limits under the Tennessee Rules of Civil
Procedure. Under the Federal Rules of Civil Procedure, however, each deposition
is limited to one day of seven hours, see Fed. R. Civ. P. 30(d)(1),
and each side is limited to ten depositions total, see Fed. R. Civ.
P. 30(a)(2)(A)(i).
Pretrial Disclosures and Objections
The Federal Rules
of Civil Procedure require litigants to make pretrial disclosures of its
anticipated witnesses, portions of deposition transcripts that will be used,
and an exhibit list. See Fed. R. Civ. P. 26(a)(3)(A). These
disclosures must be made at least 30 days before trial. See Fed. R.
Civ. P. 26(a)(3)(B). The Tennessee Rules of Civil Procedure do not include such
requirements; however, in practice, Tennessee state courts almost always
require such disclosures by local rule or pretrial order.
The functional
difference between federal courts and Tennessee state courts regarding pretrial
disclosures concerns objections. The Federal Rules of Civil Procedure require
litigants to file objections, and failure to do so constitutes a waiver:
Within 14 days
after they are made, unless the court sets a different time, a party may serve
and promptly file a list of the following objections: any objections to the use
under Rule 32(a) of a deposition designated by another party under Rule
26(a)(3)(A)(ii); and any objection, together with the grounds for it, that may
be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii). An
objection not so made - except for one under Federal Rule of Evidence 402 or
403 - is waived unless excused by the court for good cause.
Fed. R. Civ. P. 26(a)(3)(B)
(emphasis added). Not only do the Tennessee Rules of Civil Procedure not include
such a provision, it is uncommon for Tennessee state courts to require the
filing of objections by local rule, pretrial order, or otherwise.
Final Pretrial Conference and Final
Pretrial Order
Final Pretrial
Conferences and Final Pretrial Orders are commonplace in federal court and
generally absent from Tennessee state courts. The authority to hold a Final
Pre-Trial Conference is found in Rule 16(e) of the Federal Rules of Civil
Procedure:
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.
Fed. R. Civ. P. 16(e). Typically, a
Final Pretrial Conference will include a discussion of the following topics:
1.
Jury
selection procedure
2.
Voir
dire procedure
3.
Jury
instructions
4.
The
use of technology in the courtroom
In the Middle District of
Tennessee, it is customary for each party to include in the final pre-trial
order its theory of the case, and the final pre-trial order supplants the
pleadings.
Rule 45 Changes
A Subpoena Should Issue from the Court Where the Action Is Pending
Previously, courts
applied three different meanings to “where the production or inspection is to
be made,” including:
1. The place where the documents
are located,
2. The location of the person in
custody of the documents, and
3. The place where the documents
will be delivered.
For example, assume the following: A plaintiff
files a lawsuit in federal court in Colorado, and then subpoenas documents
from a nonparty in Texas. The nonparty fails to respond, and the plaintiff
wants to enforce the subpoena. Where does the plaintiff file to enforce the
subpoena, Colorado or Texas? Under the previous rule, the issuing court would
most likely need to be a federal court in Texas.
Yet, amended
Federal Rule 45(a)(2) provides that a “subpoena must issue from the court
where the action is pending” rather than making the issuing court dependent
upon “where the production or inspection is to be made”.” In the hypothetical,
that would mean the federal court in Colorado. Thus, the amended Federal Rule
45(a) (2) has remove the uncertainty about the proper issuing court.
The Amendments Permit Nationwide Service for the Subpoena
The amendments
also shorten and simplify Federal Rule 45(b)(2), completely eliminating the
subsections (A) through (D), which imposed a 100-mile jurisdictional
limitation for subpoenas ordering only documents. The amendments to Federal
Rule 45(b)(2) provide that subpoena may be served at any place within the
United States.
These changes
simplify the rule and address technological advancements, expanding service of
process authority to the entire nation. Under the new place of compliance
provisions, the 100-mile limitation remains in place for subpoenas commanding
attendance, but the new rule no longer subjects subpoenas for documents to the
100-mile provision.
A Nonparty Can Provide Documents at a Reasonably Convenient Place
As the previous
Federal Rule 45 did not designate a place of compliance for producing
documents, Section 45(c)(2) of the new rule provides that:
For
other discovery. A subpoena may command … production of documents, tangible
things, or electronically stored information at a place reasonably convenient
for the person who is commanded to produce.
The amendments
eliminate the 100-mile limitation for subpoenas of documents only, again
simplifying what was before an issue on which many courts held differently. As
mentioned, the 100-mile limitation is retained for subpoenas commanding
attendance, but the new Federal Rule recognizes that appearing for trial or
deposition versus producing documents involves different levels of burden. With
no 100-mile limitation for subpoenas of documents, nonparties must now
challenge the validity of a subpoena that requires them to produce documents at
an unreasonable place.
The Proper Court to Enforce or Handle a Subpoena
Is the Court that Requires the Compliance
Rule 45(c)
previously provided that “[t] he issuing court must enforce” the subpoena, and
the issuing court is currently “the district where the production… is to be
made.” So in the hypothetical, under the previous rule, the “issuing court” was
where the production was to be made, the federal court in Texas.
The amendments to
Section 45(a)(2) change the issuing court to “where the action is pending,”
while the amendments in Section 45(d)(1) change which court should handle
subpoena-related motions from the court that issues the subpoena to the court
where “compliance is required.” Specifically, the amended Federal Rule 45(d)(1)
provides:
(d)
Protecting a Person Subject to a Subpoena; Enforcement.… A party or attorney
responsible for issuing and serving a subpoena must take reasonable steps to
avoid imposing undue burden or expense on a person subject to the subpoena.
The court for the district where compliance is required under Rule 45(c) must
enforce this duty…
However, similar
to the phrase previously used to determine the issuing court (“where the
production or inspection is to be made”), courts may ultimately interpret the
exact place of compliance under amended Federal Rule 45(c) as ambiguous.
“Place of compliance” could mean the location of the documents, the location
of the nonparty, or the place where the documents will be delivered. Accordingly,
the precedent on the meaning of the phrase “where the production or inspection
is to be made” may be instructive when disputes arise regarding the meaning of
“where compliance is required.” Unlike the amendments to Section 45(a)(2) of
the new rule, which clearly identifies one specific court as the issuing
court, the amendments to Section 45(c) instead provide for production “at a
place reasonably convenient for the person who is commanded to produce,”
without specifically designating the court of compliance. Furthermore, the
“place” of production may not clearly correspond to a certain court
jurisdiction if the nonparty complies with the subpoena electronically. As a result, the proper court to handle
subpoena-related motions is not clear.