RULE 16. PRETRIAL CONFERENCES, SCHEDULING, MANAGEMENT
(a) Pretrial conferences; objectives.
The court in its discretion may, and upon the occurrence of any of the triggering events specified in subdivision (b), must, direct the attorneys for the parties and any unrepresented parties to appear before it in person, telephonically, or by other electronic means, for a conference or conferences in advance of 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;
(5) facilitating the settlement of the case; and
(6) discussing the desirability of using an alternative dispute resolution process.
(b) Scheduling and planning; triggering events.
The court must conduct a conference and enter an order to schedule and manage the case under the following circumstances:
(1) if more than six months have passed since filing of the summons and complaint or answer without final disposition of the case or filing of a dispositive motion;
(2) if the summons and complaint or answer was served more than six months before filing and ninety days have passed since filing without final disposition of the case or filing of a dispositive motion;
(3) if a Rule 40(e) notice has been issued and any response to the notice contained a request that the case be left open; or
(4) if any party makes a written request for a scheduling and planning conference.
(c) When conference held.
The scheduling and planning conference must be held within 60 days of the triggering event.
(d) Subjects for consideration at pretrial conferences.
At any conference under this rule consideration may be given, and the court may take appropriate action, with respect to the following:
(1) the formulation and simplification of the issues, including the elimination of frivolous claims or defenses;
(2) the necessity or desirability and the time for joinder of other parties and of amendments to the pleadings;
(3) the possibility of obtaining admissions of fact and 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, and limitations or restrictions on the use of testimony under Rule 702 of the North Dakota Rules of Evidence;
(5) the appropriateness and timing of motions for summary adjudication under Rule 56 and any other motions;
(6) the control and scheduling of discovery;
(7) any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;
(7) (8) the appropriateness and timing of disclosure 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; (8) (9) the advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury; (9) (10) settlement and the use of special procedures to assist in resolving the dispute; (10) (11) the form and substance of the pretrial order; (11) (12) the disposition of pending motions; (12) (13) 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; (13) (14) an order for a separate trial under Rule 42(b) with respect to a claim, counterclaim, cross-claim, or third-party claim, or with respect to any particular issue in the case; (14) (15) an order directing a party or parties to present evidence early in the trial with respect to a manageable issue that could, 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); (15) (16) an order establishing a reasonable limit on the time allowed for presenting evidence; (16) (17) the allocation of peremptory challenges; and (17) (18) such other matters as may facilitate the just, speedy, and inexpensive disposition of the action.
At least one of the attorneys for each party participating in any conference before trial must have authority to enter stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed. If appropriate, the court may require that a party or its representative be present or reasonably available by telephone in order to consider possible settlement of the dispute.
A scheduling order issued under this rule may be modified by leave of court or as permitted by Rule 29.
(f) Final pretrial conference.
Any final pretrial conference must 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 must be attended by at least one of the attorneys who will conduct the trial for each of the parties and by any unrepresented parties.
(g) Pretrial orders.
After any conference held under this rule, an order must be entered reciting the action taken. This order controls the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference may be modified only to prevent manifest injustice.
If (i) a party or party's attorney fails to obey a pretrial order, (ii) no appearance is made on behalf of a party at a pretrial conference, (iii) a party or party's attorney is substantially unprepared to participate in the conference, or (iv) a party or party's attorney fails to participate in good faith, the court, upon motion of a party or its own motion, may make such orders with regard thereto as are just, and among others any of the orders provided in Rules 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 expense incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.
Rule 16 was amended, effective July 1, 1981; March 1, 1986; March 1, 1990; March 1, 1996; March 1, 2000; August 1, 2004; _____________________.
Rule 16 was amended, effective March 1, 2000, to add a new subdivision (a)(6) relating to alternative dispute resolution. Under N.D.R.Ct. 8.8, all parties in civil cases are required to discuss early alternative dispute resolution and must file a statement with the district court regarding participation in ADR.
Subdivision (a) was amended and new subdivisions (b), (c) and (e) were added, effective August 1, 2004, to incorporate a mechanism to trigger scheduling and planning conferences when certain events occur in an action.
Subdivision (d) was amended, effective _____________, to add issues related to electronically stored information to the list of possible subjects for discussion at a pretrial conference.
Subdivision (d) was amended, effective March 1, 1996, to follow the 1993 amendment to Rule 16(c),
Subdivision (h) was amended, effective March 1, 1990. The amendment is technical in nature and no substantive change is intended.
Sources: Joint Procedure Committee Minutes of ____________________; September 18-19, 2003, pages 11-18; April 24-25, 2003, pages 26-30; May 6-7, 1999, pages 7-8; January 28-29, 1999, pages 7-12; January 26-27, 1995, page 10; September 29-30, 1994, pages 22-23; April 20, 1989, page 2; December 3, 1987, page 11; April 26, 1984, pages 26-28; January 20, 1984, pages 18-23; September 18-19, 1980, pages 12-13; September 20-21, 1979, page 11; Rule 16,