Very shortly after the complaint is filed, you will need to prepare for a set of conferences. Federal Rules 16 and 26(f) govern these conferences, but set forth the timing of them in a fairly confusing way. Consult your court's Local Rules or your judge's standing order for an understanding of the sequencing of these conferences. The purpose of the discovery conference is to develop a mutually acceptable discovery plan which anticipates and attempts to resolves potential discovery issues. The pretrial conference with the court -- used to greater or lesser extent depending on the judge and the nature of the case -- is intended to permit the court to exercise managerial control over the case in order to resolve it efficiently.1 Important decisions are made at these conferences; you should prepare for them carefully. This preparation requires you to anticipate and take positions on issues which may occur much later in the litigation.
6.1.A. Conference of Parties, the Joint Discovery Plan, and Discovery Planning
As soon as practicable, and at least 21 days prior to the Rule 16(b) scheduling conference or filing of a scheduling order, the parties must confer. At this meeting, referred to as a “Rule 26(f) conference,” counsel and unrepresented parties must, among other tasks, confer to "consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan.”2 In most cases, the parties may not seek discovery from any source before they have conferred as required by Rule 26(f).3
The Rule 26(f) conference typically occurs very early in the litigation and requires a significant amount of case and discovery planning prior to the meeting. At a minimum, the parties will be required to develop a discovery plan that addresses the subjects listed in Fed. R. Civ. P. 26(f)(3). In addition, many courts require the parties to discuss and agree on a variety of case management issues such as discovery and motion deadlines limits on certain types of discovery,4 expert witness disclosures,5 depositions, discovery of electronically stored information6 , and the trial date. A joint written report of the conference must be submitted to the court within 14 days of the conference. The court will rely on the report to set case management deadlines that may not be easily altered later without a showing of good cause. See Section 6.1.B. infra. Be sure to check your local rules and your judge’s individual practice regarding Rule 26(f) conferences and their reports.7
Apart from the discovery plan that must be discussed with opposing counsel, you must develop your own internal plan, which should be reviewed and revised as the litigation progresses. Successful discovery requires that you identify what you must prove as early as possible. The plan should identify the facts that you must prove, the discovery tools most likely to assist in proving those facts, and a sequence for using the various discovery tools. As you accumulate information, you must maintain a carefully organized file that shows both the content and the source of every document. As the case develops, continue to identify the facts that you can prove and how you will prove them. In more complex litigation, you may find it useful to create a computerized database of documents and potential testimony.
The discovery plan should set forth the sequence of discovery. If you anticipate protracted discovery, you should begin it promptly and proceed in stages. Some basic information should be given automatically under the Rule 26(a)(1) initial disclosures. You can then use carefully drafted interrogatories to identify other documents and their respective custodians, potential witnesses, objective facts and the contentions of the opposing parties. Next, request production of documents and, when appropriate, request admissions. Last, depose important witnesses and again consider requests for admission. In a class action, early discovery should also establish the existence of a class and, when feasible, the identity and addresses of class members. As you complete each stage in your discovery plan, you should review and modify it to reflect what you have learned.
The amount, order, and type of discovery needed varies from case to case. In many instances, however, recurring issues make it possible to borrow liberally from discovery requests used in similar cases. National support centers may have forms available. In an appropriate case, form books on discovery, particularly American Jurisprudence Proof of Facts, may be helpful. Charles A. Wright, Arthur R. Miller, and Edward H. Cooper’s Federal Practice and Procedure forms can be helpful, and forms are becoming increasingly accessible on the Internet. Recognize the limitations of forms: they save time, but they were not written with your specific case in mind. Use them as a beginning rather than as an end.
There is danger in not using discovery tools to the fullest extent. If you are unfamiliar with the full potential for discovery, you may overlook important opportunities. Discussing discovery with more experienced counsel is always worthwhile. The underutilization of discovery is especially common in test case litigation, where a focus on critical legal issues may obscure the need for thorough discovery. Impact litigation is often dependent upon compelling facts that convince the court that its intervention is necessary to correct a systemic injury. Discovery is vital to finding the facts to make a record as the foundation for successful litigation.
6.1.B. Scheduling Orders and Pretrial Conferences
Rule 16(b) generally requires the court to a scheduling order. Unless the court finds good cause for delay, that order must be issued within 90 days after any defendant has been served or 60 days after any defendant has appeared, whichever is earlier.8 The order must also follow either receipt of the parties' Rule 26(f) report or after consulting with the parties at a scheduling conference.9 It is important for you to know what may be discussed at the conference so that you can be prepared to advocate on these issues. The scheduling order must limit the time to join other parties, amend pleadings, complete discovery and file motions.10 It may modify the timing of initial disclosures, modify the extent of discovery, provide for the discovery of electronically stored information, include agreements on privileged or protected material, set dates for pretrial conferences, and require a conference with the judge prior to filing a motion relating to discovery.11 Modifications to the scheduling order may be modified only for good cause and with the permission of the judge.12
Magistrate Judge Wayne Brazil, writing in Moore's Federal Practice, offers excellent advice with respect to the Rule 16 conference:
[M]uch of the danger in practice under Rule 16 arises only for lawyers who are not well prepared, or who do not communicate or cooperate with one another. Aside from squandering an opportunity to save the client money and the attorney stress and distraction, a lawyer who is not prepared for a Rule 16 conference runs a substantial risk that a better-prepared opponent will persuade the judge to enter orders that put the unprepared lawyer at a severe procedural disadvantage, or even that cost the client important rights. Moreover, judges form impressions about the quality of counsel, as well as the merits of their cases, through Rule 16 events; these impressions can affect the mind set that judges bring to rulings on important motions, settlement negotiations, or findings at trial. A lawyer who makes a poor impression at a Rule 16 conference, and who cannot articulate credible legal and evidentiary bases for the client's position, needlessly harms both his or her own professional reputation and the client's prospects in the litigation.13
Ordinarily, the court will hold one or more pretrial conferences following the scheduling conference. The subjects of such a conference can include any of the matters listed in Rule 16(c)(2). Rule 16(e) provides that “[t]he order following a final pretrial conference shall be modified only to prevent manifest injustice.” Rule 16(f) authorizes the imposition of sanctions for failing to obey a scheduling or pretrial order, including the ultimate sanction of dismissal.14 The district court’s decision to impose or refuse sanctions may be overturned only for an abuse of discretion.15
6.1.C. Assignment of Magistrate Judges
The role and authority of federal magistrate judges is governed by 28 U.S.C. §§ 631 et seq. and Federal Rules of Civil Procedure 72 and 73. Rule 72 permits magistrate judges to decide pretrial matters referred to them by district court judges, and Rule 73 permits them to conduct trials “[w]hen specially designated ... by local rule or order of the district court and when all parties consent.” Magistrate judges may act as special masters,16 and may have additional duties established by court order or local rule, so long as these are not “inconsistent with the Constitution and laws of the United States.”17 In all of these situations, magistrate judges are authorized to act only to the extent granted by the district court. The advisability of referring matters to a magistrate judge is one of the subjects to be discussed at a pretrial conference. The manner in which cases are assigned to magistrate judges is determined by local rule.
The “pretrial matters” covered by Rule 72 include virtually any motion made before trial and include both “(a) non-dispositive matters” and “(b) dispositive motions and prisoner petitions.” Determining which matters are dispositive is not always easy.18 For non-dispositive matters, the magistrate judge has the authority to enter an order deciding the matter unless the order of reference directs her merely to make a recommendation. A party who is displeased with the magistrate judge’s ruling may file objections within ten days of being served with the order.19 Unless the matter was referred solely for a recommendation, the standard of review set forth in Rule 72(a) is highly deferential: “clearly erroneous or contrary to law.”20 Objections are heard by the district judge to whom the case is assigned, and may be made in any manner permitted by local rule. Failure to object constitutes a waiver of the right to review of the magistrate judge’s order, but the district judge may elect to review it sua sponte.21
For dispositive pretrial motions under Rule 72(b), the magistrate judge may make findings and a recommendation, but does not enter an order. Any objections must be "specific" and filed within fourteen days.22 The party opposing the objection is expressly permitted to file a written response within fourteen days of service of the objections. The review by the district judge assigned to the case is de novo.23 A record of the proceedings before the magistrate judge is made in order to permit such de novo review, and the party objecting must “promptly arrange” for its transcription.24 A district judge has no obligation to review the magistrate judge’s recommendation on a dispositive matter in the absence of an objection.25
Upon review of objections, the district judge “may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate with instructions.”26 The district judge must not, however, merely rubber-stamp the recommended decision.27 Even so, no specific findings are necessary to satisfy the judge’s review responsibility.28
Rule 73, implementing 28 U.S.C. § 636(c), gives magistrate judges authority to “conduct any or all proceedings, including a jury or non-jury trial, in a civil case” on two conditions.29 The first is that they have been “specially designated to exercise such jurisdiction by local rule or order of the district court,” and the second is that all parties consent.30 To protect against a party feeling coerced into accepting such a referral, subsection (b) of the rule provides that each party’s position on consent is to be filed but not revealed to the judge or magistrate judge unless all parties consent.31 Implied consent to trial by the magistrate judge is permitted “when the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge.”32 If any parties are added to the case after the original parties have consented to trial before the magistrate judge, care must be taken to obtain their consent.33 Once the matter is referred, the order of reference can be vacated by the district judge “for good cause shown on its own motion, or under extraordinary circumstances shown by a party.”34 There is some authority that a magistrate judge may also permit withdrawal of consent.35
The only exception to the magistrate’s plenary power to hear a case referred under Rule 73 is that she may not find parties in contempt. Section 636(e) mandates that the district judge hear such matters when the magistrate issues an order to show cause. A record of the proceedings before the magistrate judge must be kept unless the parties agree otherwise; they may also agree on a method of recording other than the use of a court reporter.36 Under Rule 73(c), appeal from a judgment entered by a magistrate judge “will lie to the court of appeals as it would from a judgment of the district court.” Review in the court of appeals is the same as if the judgment had been entered by a district judge.37
- 1. Fed. R. Civ. P. 16(a).
- 2. Id. 26(f).
- 3. Fed. R. Civ. P. 26(d).
- 4. The Federal Rules have presumptive limits on some forms of discovery. E.g., absent stipulation or leave of court, each side is limited to 10 depositions and interrogatories are capped at 25. See Fed. R. Civ. P. 30(a)(2)(A)(i); 33(a)(1). If the parties intend to exceed these limits, many courts require the issue to be addressed at the 26(f) conference and report.
- 5. Many courts require the 26(f) report to address the dates and sequence for disclosure of expert reports and related expert depositions under Rule 26(a)(2). Therefore, conferring with your expert prior to the 26(f) conference is advisable.
- 6. Many courts require the parties to discuss and report on issues relating to the disclosure or discovery of electronically stored information as part of the Rule 26(f) requirement. The parties may be required to report on matters such as the nature and extenet of the contemplated disclosure of electronically stored information, the form in which the electronically stored information should be produced, and the estimated burden or costs of retrieving and reviewing that information.
- 7. Rule 26(f)(4) allows local practice variations regarding timing of the conference and the issuance of a report. Consult your court’s local rules for implementation of the mandatory initial disclosure requirements and procedures. Id.
- 8. Fed. R. Civ. P. 16(b)(2).
- 9. Id. 16(b)(1).
- 10. Id. 16(b)(3)(A).
- 11. Id. 16(b)(3)(B).
- 12. Id. 16(b)(4). Compare Summers v. Mo. Pac. R.R. Sys., 132 F.3d 599, 604-06 (10th Cir. 1997) (permitting modification) and Burton v. United States, 199 F.R.D. 194, 197 (D. W. Va. 2001) (same) with Book v. Nordrill Inc., 826 F.2d 1457, 1461 (5th Cir. 1987) (refusing to permit new expert to testify); Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 140 (D. Me. 1985) (denying modification). See Marmo v. IBP, Inc., No. 8:00CV527, 2005 WL 675809, at *2 (D. Neb. Feb. 3, 2005) (In holding there was no showing of good cause for modification of case management order to allow designation of new expert witness, court noted that the “primary measure” of the Rule 16 good cause standard “is the moving party's diligence in attempting to meet the case management order's requirements.”).
- 13. 3 James Wm. Moore et al., Moore's Federal Practice para. 16.05 (2010).
- 14. Spain v. Bd. of Educ. of Meridian Cmty. Unit Sch. Dist., 214 F.3d 925, 930 (7th Cir. 2000).
- 15. See, e.g., Sanders v. Union Pac. R.R., 193 F.3d 1080, 1082 (9th Cir. 1999) (en banc).
- 16. 28 U.S.C. § 636(b)(2); see Fed. R. Civ. P. 53.
- 17. 28 U.S.C. § 636(a), (b)(3) .
- 18. See, e.g., Hall v. Norfolk S. Ry. Co., 469 F.3d 590, 595 (7th Cir. 2006) (denial of motion to amend not dispositive, but noting cases to the contrary); Vogel v. U.S. Office Prods. Co., 258 F.3d 509, 517 (6th Cir. 2001) (order of remand is dispositive and can only be entered by district court); Calabro v. Stone, No. CV2003-4522 (CBA)(MDG), 2005 U.S. Dist. LEXIS 5527, at *1, 2005 WL 327547, at *1 (E.D.N.Y. Jan. 27, 2005) (ruling on motion to amend complaint treated as dispositive, but acknowledging contrary case law); Benedict v. Zimmer, Inc., 232 F.R.D. 305 (N.D. Iowa 2005) (motion for leave to provide expert report is nondispositive matter); Yang v. Brown Univ., 149 F.R.D. 440, 442-43 (D.R.I. 1993) (order precluding testimony of expert witness as discovery sanction deemed dispositive). Cf. Fed. R. Civ. P. 54(d)(2)(D) (district court “may refer a motion for attorneys' fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter.”).
- 19. Fed. R. Civ. P. 72(b).
- 20. Particularly in the discovery context, this is viewed as an abuse-of-discretion standard. See, e.g., Anjelino v. N.Y. Times Co., 200 F.3d 73, 88 (3d Cir. 1999).
- 21. Fed. R. Civ. P. 72(a). Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 760-61 (7th Cir. 2009).
- 22. Fed. R. Civ. P. 72(b)(2). The right to de novo review is confined to the specific issues raised by the objection. See, e.g., Whitehead v. Okla. Gas & Elec. Co., 187 F.3d 1184, 1190 (10th Cir. 1999).
- 23. Fed. R. Civ. P. 72(b)(3). See McCombs v. Meijer, 395 F.3d 346, 360 (6th Cir. 2005) (district court cannot simply “concur” in the magistrate’s findings, but must conduct its own review).
- 24. Fed. R. Civ. P. 72(b).
- 25. See, e.g., Thomas v. Arn, 474 U.S. 140, 153 (1985).
- 26. Fed. R. Civ. P. 72(b).
- 27. See, e.g., Patel v. Baluyot, 2010 U.S. App. LEXIS 13442, at *5 (5th Cir. Jun. 30, 2010); United States v. Vosburgh, 602 F.3d 512, 526 (3d Cir. 2010); Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991). See also McCombs, 395 F.3d at 360.
- 28. Garcia v. City of Albuquerque, 232 F.3d 760, 766 (10th Cir. 2000); see also, United States v. Bach, 2010 U.S. App. LEXIS 16339, at *9-10 (1st Cir. Aug. 5, 2010).
- 29. In some jurisdictions, one benefit of consenting to trial by a magistrate judge is that the parties are able to obtain a date certain for trial. District judges are required to give priority to criminal trials, and this priority often results in changes or delays in the trial of civil cases.
- 30. See Roell v. Withrow, 538 U.S. 580, 585 (2003).
- 31. See also 28 U.S.C. § 636(c)(2) . Parties are to be advised “that they are free to withhold consent without adverse substantive consequences.” Id.
- 32. Roell, 538 U.S. at 590.
- 33. Mark I, Inc. v. Gruber, 38 F.3d 369, 370 (7th Cir. 1994).
- 34. Fed. R. Civ. P. 73(b); 28 U.S.C. § 636(c)(4) . See also Manion v. American Airlines, Inc., 251 F. Supp.2d 171, 175 (D.D.C. 2003) (allegation of magistrate bias found insufficient to meet “extraordinary circumstances” standard required to vacate referral with consent of parties).
- 35. Sockwell v. Phelps, 906 F.2d 1096, 1097 n.1 (5th Cir. 1990).
- 36. 28 U.S.C. § 636(c)(5) .
- 37. See, e.g., Lady v. Neal Glaser Marine Inc., 228 F.3d 598, 601 (5th Cir. 2000), cert. denied, 532 U.S. 941 (2001).