[Because Rule 16 was completely rewritten, effective May 1, 1999, all previous Advisory Committee Notes are not included in this text.]

Advisory Committee Note – July 2008

Rule 16 is amended with corresponding amendments to Rules 26, 33, 34 and 37 to address the need for specific treatment of the discovery of electronically stored information. These amendments are taken largely from the 2006 amendments of the Federal Rules of Civil Procedure, which comprehensively address the discovery of electronically stored information. Guidance in the interpretation of the Maine rules may be obtained from the federal amendments, their Advisory Committee’s Notes, and cases applying the federal rules. “Electronically stored information” is intended to have the same broad meaning found in Rule 34(a), which permits discovery of electronically stored information regardless of the medium in which the information is stored or the method by which it is retrieved. Given the amount of information that exists only in electronic form, the discovery rules need to address the preservation and production of this information.

The fact that Rule 16 encourages the parties to address electronic information if a discovery conference is requested and that the discovery rules provide for the production of such information does not suggest that discovery of electronically stored information is appropriate in every case. As in every case, the parties are expected to engage in discovery in a reasonable manner. The court has broad powers at under Rules 26 and 37 to regulate discovery.

Rule 16(a)(1) is amended to require a scheduling order to include “a conference with counsel concerning discovery” early in the case. The form scheduling order recommended by the Advisory Committee requires a conference to be held “if requested by any party.” The purpose of the conference with counsel concerning discovery is twofold. First, it is desirable for a counsel to discuss their plans for discovery early in the case. Frequently, such discussions can lead to narrowing the scope of discovery and setting the stage for more efficient use of resources in preparing the case. Second, cases now more frequently involve the production of electronically stored information. In those cases in which the discovery of electronically stored information is contemplated, it is important for counsel to discuss early in the case preservation of that information, which might otherwise be altered or deleted in the ordinary course of business, and to discuss the form in which such information can be preserved and produced. The intent of the rule is that this discussion take place early in the case to ensure that discovery proceeds efficiently and to require the parties to document an agreement concerning the preservation and production of information in order to prevent disputes later in the case.

The form scheduling order should be amended in part as follows:

SCHEDULING ORDER

Pursuant to M.R.Civ.P. 16(a), the court orders as follows:

1. Discovery Conference. If requested by any party, a conference of counsel shall be held to discuss a plan for discovery, including in appropriate cases a plan for the production and preservation of electronically stored information. Agreements by the parties, including an agreement that no such provisions need be made, shall not be filed with the court but shall be documented by written communication to all counsel. In the absence of agreement, disputes shall be resolved under Rule 26(g).

[renumber remaining paragraphs accordingly]

* * * * *

The draft scheduling order amendment submitted by the Advisory Committee with the amendment to Rule 16(a)(1) contains a new paragraph 1 to require a discovery conference “if requested by any party.” The purpose of the conference is to encourage counsel “to discuss a plan for discovery, including in appropriate cases a plan for the production and preservation of electronically stored information.” The parties may decide not to have such a conference. If the conference is requested and held, however, the parties may make agreements as to discovery generally and electronically stored information specifically or, alternatively, they may agree that no provisions need be made. In either case, the parties must document the agreements they reach in a written communication. That communication “shall not be filed with the court,” but it must be in the form in which it can be presented to the court in the event that there is a dispute later in the case. The provision for a discovery conference is motivated by two considerations. First, the scheduling order encourages the parties to address the issue of discovery, including electronically stored information where appropriate, and to document what they have decided to do. It obviously would be simple to require such a conference, but the Advisory Committee believes that parties should be free to decide for themselves whether a conference need be held. Second, if the parties do address these issues and reach some agreement on how the issues are to be handled, it is the objective of this process to reduce the likelihood of disputes later in the case, including claims of spoliation of evidence. For example, if the parties agree that a particular type of information should be produced or preserved or agree that no such information need be preserved, those agreements as documented in the written communication required by the order should enable the court to address a spoliation claim in a more focused way than if no agreements were reached. In other jurisdictions, spoliation claims, particularly as to electronic information, have resulted in substantial sanctions. Maine lawyers now have the tools to reduce that exposure. Similarly, the conference is a good opportunity for the parties to address whether electronically stored information is “reasonably accessible” within the meaning of Rule 26(b)(6).

Since the scheduling order is entered shortly after the answer is filed, the defendant may not have all of the information required to enter into definitive agreements on some of the discovery issues. In that case, the parties may agree — and document their agreement — to address these issues at a future time. If the parties are unable to agree on an issue during the discovery conference, the dispute “shall be resolved under Rule 26(g),” as the proposed scheduling order requires.

Since the discovery schedule is relatively short, in cases in which a large volume of electronically stored information is produced, parties may find out later that information that is privileged or subject to the work product qualified immunity has been inadvertently produced. Proposed Rule 26(b)(5)(B) specifically addresses this issue and prescribes the procedure for handling the information once the claim of privilege is raised. In this context, and under amended Rule 26(b)(5)(B), the term “privilege” is intended to mean confidential information protected from discovery on any ground, whether by statutory provision, privilege created by law or rule, or otherwise.

Advisory Committee Note

This amendment is designed to provide parties and the court with a choice for differentiated case management. Once the parties have appeared, the Superior Court enters a form scheduling order that sets deadlines for the case. The amendment to Rule 16(a) establishes a subdivision (a)(1), which is directed to the form scheduling order, now called the ”standard” scheduling order in the amendment. A “standard” scheduling order will issue unless, in a few cases, the court has previously issued a specialized scheduling order governing the particular proceeding. The deadlines in the “standard” scheduling order may not be modified under the rule unless “good cause” can be shown. Although the standard scheduling order should govern the great majority of cases, there are cases in which the form order may not serve the requirements of an individual case.

The adoption of Rule 16(a)(2) permits the court, on its own or on a motion, filed within 30 days of the scheduling order, to modify the order without having to meet the exacting “good cause” standard. A Rule 16(a)(2) modification of the scheduling order should be the exception, rather than the routine. The new subdivision (a)(2) purposely does not specify the kinds of cases in which a departure from the form order is warranted, but obvious examples include complex or multi-jurisdictional cases, cases with many parties and counsel, and extremely simple cases that do not require the full standard treatment. A motion for modification to the standard scheduling order should specify why the standard order does not meet the requirements of the case and should proffer an alternative order, preferably with the agreement of all counsel. The court is intended to have broad discretion to decide whether to depart from the standard order and, if so, on the schedules and orders made to address the particular requirements of the case.

Advisory Committee’s Notes May 1, 1999

Rule 16 has been completely replaced in a continuing effort to improve pretrial procedure. The objective of the new rule is to implement reforms to the discovery process and to bring the rule itself into line with a simplified pretrial process. The new pretrial procedure under Rule 16 applies only to the Superior Court and does not apply to proceedings filed under Rules 80, 80B or 80C.

In 1980, a new Rule 16 was adopted to strengthen the pretrial memorandum/conference process, which was nearly the exclusive means by which cases were made ready for trial. In 1988, however, the court adopted a new procedure by which cases were “tracked” either to the expedited pretrial list or the regular pretrial list. Conforming amendments were made to Rule 16 to recognize that cases on the expedited pretrial list would be called for trial without formal pretrial memoranda or conferences. Assignment to the regular pretrial list required parties to file detailed pretrial memoranda and to address at a pretrial conference the many issues required by the 1980 amendment. In all cases, amendments to Rule 16 also required the parties to confer within 15 days of the service of the answer in order to prepare and file a pretrial scheduling statement that specified whether the case would be tried to a jury, the time required for trial and discovery, and the possibility of settlement.

As the practice developed, however, the overwhelming majority of cases were placed on the expedited pretrial list, rendering the detailed pretrial memorandum/conference requirements inapplicable. The process of preparing the pretrial scheduling statement became little more than a pro forma filling out of a form, frequently performed without personal contact among counsel. The process also imposed a burden on the clerk to initiate and police the filing of the statement. Most importantly, the process did not deliver the intended substantive exchange between the parties at an early point in the case.

The present amendments to Rule 16 recognize that for the large majority of cases, it is most efficient for the court to send out a scheduling order automatically, setting deadlines for joinder of parties and amendment of pleadings, expert witness designations, discovery deadlines, jury demand, trial time estimates, exchange of witness lists, and deadlines for filing motions. The scheduling order also requires an automatic disclosure of expert witness information required by M.R. Civ. P. 26(b)(4)(A)(i) by the plaintiff with a corresponding disclosure by the defendant thereafter. A similar process has been used with success in the federal court for the District of Maine.

The scheduling order, set forth below, is automatically entered by the court when issue is joined in the case. It is contemplated that all actions will be governed by the form scheduling order unless a party moves to amend or alter the order within 10 days of its issuance, a deadline set by the order itself. Departure from the schedule should be allowed only where it is shown that the circumstances of the case make imposition of the order’s deadlines unfair or impractical. In the absence of a motion, the order sets the discovery deadline, which triggers important obligations for the parties. Not later than 15 days after the discovery deadline, the parties must exchange a witness list and must have conferred and filed with the court an estimated number of days required for the trial. Within 60 days of the discovery deadline, all motions except motions in limine must be filed.

When the case is set for trial, the court will issue a form pretrial order, set forth below, specifying the date for trial and deadlines for pretrial preparation. The order is issued once, although the case may appear on more than one trial list if not reached. The parties are required by the order to exchange settlement positions and lists of exhibits and witnesses. In advance of the trial date, the parties are also required to edit depositions to be offered at trial. One day prior to the commencement of the trial session, each party is required by the order to submit a trial brief consisting of a short statement of legal and factual issues. The trial brief should have attached a witness and exhibit list and any requested voir dire, jury instructions or special verdict form. It is the intent of the rule and the orders implementing the rule that pretrial preparation be conducted in good faith and on schedule.

The automatic process contemplated by Rule 16(a) and (b), implemented by the scheduling and pretrial orders, may not be appropriate for cases complicated by the issues, the number of parties or the need for special management. In these cases, on motion of a party or on the court own motion, the court may order the parties to file pretrial memoranda and to attend a pretrial conference under Rule 16(c). The intent of the new provisions for the pretrial memorandum and pretrial conference is to simplify the process and to give the court maximum flexibility in the management of the preparation for trial. The language of Rule 16(c) is taken from Local Rule 16.4(b) of the United States District Court for the District of Maine. The purpose of the rule is to require the parties to file brief memoranda flushing out the issues and identifying witnesses and exhibits, to hold a conference among counsel and the court, and to provide for the entry of a customized pretrial order that will “control the subsequent course of the action.” Since pretrial memoranda and a conference will be required only in those cases requiring special management, the intent of the procedure is to provide a means for case specific simplification of the issues and management of the trial.

As in the former Rule 16, Rule 16(d) expressly empowers the court to impose a variety of sanctions upon a party or upon counsel alone for failure to comply with the requirements of the rule or with the orders issued on authority of the rule. The purpose is to provide the court with the tools to require adherence to its processes and to encourage the court to use those tools where appropriate. As the pretrial order specifically states, agreements among counsel to waive requirements or to extend deadlines will not be recognized. The requirements of Rule 16 are neither onerous nor pointless.

Advisory Committee’s Notes February 8, 2001

Subsection 1 amends Rule 16(a) to add an ADR scheduling component to the scheduling order which the court now issues under Rule 16(a). The scheduling order specifies the time within which the ADR conference has to be scheduled and completed. As with other aspects of the 16(a) scheduling order, the dates for scheduling and completion of the ADR conference may be adjusted by the court for good cause shown. The scheduling order would reference Rule 16B for implementation procedures.

Advisory Committee’s Notes July 1, 2001

The amendment makes changes in Rule 16(b) to recognize present practice. The scheduling order issued under Rule 16(a) now controls subsequent pretrial proceedings, so the provisions presently in Rule 16(c) are superfluous. The amendments to Rule 16(b) reflect the current more flexible practices. The amendments also address settlement and permits the court to compel the attendance of parties including insurers. Although many judges believe that the court now has the inherent power to compel such attendance, the grant of express authority dispels any possible argument that under the present rule the court may not have the power to compel the attendance of an insurer who is not a party. The sanctions provisions presently in place are sufficient to cover the settlement conference.

Annotations:

Rule 16: Stipulations: Enforcement. MP Assoc. v. Liberty, 2001 ME 22, 26-31.