2003 U.S. Code
Title 28 - JUDICIARY AND JUDICIAL PROCEDURE
TITLE 28 - APPENDIX
General Order No. 41
Rule 16 - Pretrial Conferences; Scheduling; Management

(a) Pretrial Conferences; Objectives. In any action, the court may in its discretion 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 trial through more thorough preparation;

(5) facilitating the settlement of the case; and

(6) assessing the utility of dispositive motions.

(b) Scheduling and Planning. Except in actions exempted by the judge, the court shall, after receiving the Joint Preliminary Status Report from the parties pursuant to Appendix A or after consulting with the attorneys for the parties and any unrepresented parties by a scheduling conference, telephone, mail or other suitable means, enter a scheduling order that limits the time

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

(2) to file motions; and

(3) to complete discovery.

The scheduling order also may include:

(4) modifications of the times for disclosures under RCFC 26(a) and of the extent of discovery to be permitted;

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

(6) a direction that the parties file any of the submissions set out in Appendix A 14, 15, 16 or 17; and

(7) any other matters appropriate in the circumstances of the case. The order shall issue as soon as practicable but in any event within 4 days after any preliminary scheduling conference or, if no preliminary scheduling conference is held, as soon as practicable after the Joint Preliminary Status Report is filed. A schedule shall not be modified except upon a showing of good cause and by leave of the judge.

(c) 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

(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, and limitations or restrictions on the use of testimony under Rule 702 of the Federal Rules of Evidence;

(5) the appropriateness and timing of summary adjudications under RCFC 56 and 56.1;

(6) the control and scheduling of discovery, including orders affecting disclosures and discovery pursuant to RCFC 26 and RCFC 29 through 37;

(7) 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;

(8) the advisability of referring matters to a master;

(9) settlement and the use of special procedures to assist in resolving the dispute;

(10) the form and substance of the pretrial order;

(11) the disposition of pending motions;

(12) 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) an order for a separate trial pursuant to RCFC 42(b) with respect to a claim, counterclaim, or third-party claim, or with respect to any particular issue in the case;

(14) an order directing a party 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 or a judgment on partial findings under RCFC 52(c).

(15) an order establishing a reasonable limit on the time allowed for presenting evidence; and

(16) 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 shall have authority to enter into 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.

(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 the 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. 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 RCFC 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 attorneys’ fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.

(g) Additional Pretrial Procedures. See Appendix A to these rules (“Case Management Procedure”) for additional provisions controlling pretrial procedures.

RCFC 16 was completely revised to parallel the structure and content of its counterpart in the Federal Rules of Civil Procedure. The limited number of changes to the current federal rule reflect those deemed necessary to accommodate procedural requirements particular to this court. Except for these changes, the rule shown conforms fully to the text of FRCP 16.

The Federal Rules of Evidence, referred to in subd. (c)(4), are set out in this Appendix.