Rule 16. Pre-trial conferences; scheduling; management

Pre-trial conferences; scheduling; management.

(a) Pretrial conferences; objectives. In any action, the court may in its discretion at any time direct the attorneys for the parties and any unrepresented parties to appear before it for a conference or conferences before trial 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) improving the quality of the trial through more thorough preparation; and

(5) facilitating the settlement of the case. When the court has not ordered a conference, any party may require the scheduling of such conference on written notice served at such time in advance of trial so as to permit the conference to take place at least twenty-one (21) days before the case is set for trial.

(b) Scheduling and planning. The court may enter a scheduling order that limits the time

(1) to join other parties and to amend the pleadings;

(2) to file and hear motions; and

(3) to complete discovery. The scheduling order also may include

(4) the date or dates for conferences before trial, a final pretrial conference, and trial;

(5) provisions for discovery of electronically stored information;

(6) any agreements the parties reach for asserting claims of privilege or asserting that certain material is protected as trial-preparation material after the material has been produced; and

(7) any other matters appropriate in the circumstances of the case. Any scheduling order shall be issued as soon as practicable. Once a scheduling order is issued, the schedule set thereby shall not be modified except by leave of court upon a showing of good cause.

(c) 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 which 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 magistrate or master;

(7) the possibility of settlement or the voluntary use by all parties of extrajudicial procedures to resolve the dispute, including mediation conducted pursuant to the Alabama Civil Court Mediation Rules;

(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.

(d) Final pretrial conference. Any final pretrial conference shall be held as close to the time of trial as reasonable under the circumstances. The participants at any such conference shall 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.

(e) Pretrial orders. 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 to prevent manifest injustice.

(f) 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(b)(2)(B), (C), (D). 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 fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.

(dc) District court rules. Pretrial procedure in the district court shall be as follows: Immediately preceding the trial on the merits, or prior thereto, if justice requires, the court may direct and require the attorneys for the parties to appear before it for a conference to consider and determine:

(1) the simplification of the issues;

(2) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

(3) such other matters as may aid in the disposition of the action. [Amended eff. 8-1-92; Amended eff. 10-1-95; Amended eff. 2-1-2010.]

Committee Notes

Committee Comments on 1973 Adoption Rule 16, as modified by some corollary local rules, has in some instances, done more harm to the image of the Federal Rules than any other rule. At its birth, the informal conference with the court was viewed as a refreshing alternative to the exhaustive and exhausting pleading matches formerly used for issue simplification. As the Rule approaches middle age in the Federal System, its abuse has returned issue simplification to a level reminiscent of the common law technicalities it was designed to replace. The adoption of local rules regulating pre-trials in some federal courts has been done in an effort to relieve court congestion, an admirable end. However, ends do not justify means and this committee condemns the imposition of burdensome and often wasteful requirements on pre-trial preparation. The premise of these requirements arises from the assumption that the lawyer who is overburdened and whose client can no longer finance the extravaganza of paper, minutia, and “busy-work” will settle his case. Of course, no judge has ever been reversed or overworked because of a settlement. The practicing lawyer is not the sole complainant in this field. Judge Milton Pollack, United States District Judge, Southern District of New York, in an address to the Judicial Conference of the Eighth Circuit, made the following observation: “As applied under certain rules of various Courts, pre-trial procedures have resulted in useless, unnecessary, unprofitable expenditure of time, effort, and expertise in the majority of litigation. The average or ordinary case is over-administered, lawyers are put to busy- work resulting in duplication of effort and fruitless preparation and Judges have ignored or made minor use of the work product of the rule. The forgotten man, the client, is made to foot the bill.” Pollack. Pre-trial Conferences, 50 F.R.D. 427 (1971). Judge J. Skelly Wright, formerly of the U.S. District Court in Louisiana, now of the Distric