Arizona

Civil Procedure

Civil Procedure

Rule 16 – Scheduling and Management of Actions

(a)Objectives. In accordance with Rule 1, the court must manage a civil action with the following objectives:

(1) expediting a just disposition of the action;
(2) establishing early and continuing control so that the action will not be protracted because of lack of management;
(3) ensuring that discovery is proportional to the needs of the action, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of proposed discovery outweighs its likely benefit;
(4) discouraging wasteful, expensive, and duplicative pretrial activities;
(5) improving the quality of case resolution through more thorough and timely preparation;
(6) facilitating the appropriate use of alternative dispute resolution;
(7) conserving parties’ resources;
(8) managing the court’s calendar to eliminate unnecessary trial settings and continuances; and
(9) adhering to applicable standards for timely resolution of civil actions.
(b)Required Early Meeting About Expected Course of Case, Tiering.

(1)Timing; Purpose. At the earliest practicable time, but no later than 30 days after a party files an answer or files a motion directed at the complaint, or 120 days after the action commences-whichever occurs first-that party and the plaintiff must meet and confer about the anticipated course of their case, including the tier to which it should be assigned under Rule 26.2 and the subjects set forth in Rule 16(b)(2) and (c). The parties must discuss whether and how they can agree to streamline and limit claims and affirmative defenses to be asserted, discovery to be taken, and motions to be brought. The purpose of the conference is to plan cooperatively for the case, and to facilitate the case’s placement in one of three tiers discovery. The attorneys of record and all unrepresented parties who have appeared in the action are jointly responsible for arranging and participating in the Early Meeting.
(2)Topics for Early Meeting. The parties should discuss at least:

(A) their anticipated disclosures concerning witnesses, including the number of fact witnesses, whether they will seek to use expert witnesses, and how much deposition testimony they expect will be necessary;
(B) their anticipated disclosures of documents, including any issues already known to them concerning electronically stored information;
(C) motions they expect to file, so that the parties can determine whether any of the motions can be avoided by stipulations, amendments, or other cooperative activity;
(D) any agreements that could aid in the just, speedy, and inexpensive resolution of the case;
(E) the discovery tier to which the case should be assigned under Rule 26.2, and whether the parties wish to stipulate-or any party wishes to move for-assignment to a tier other than that to which the case would be assigned given the amount in controversy; and
(F) the subjects set forth in Rule 16(c).
(c)Filing of Joint Report and Proposed Scheduling Orders.

(1)Timing. No later than 14 days after the Early Meeting, the parties must file a Joint Report and a Proposed Scheduling Order. The attorneys of record and all unrepresented parties who have appeared in the action are jointly responsible for attempting in good faith to agree on a Proposed Scheduling Order, and for filing the Joint Report and the Proposed Scheduling Order with the court. The court must issue a Scheduling Order as soon as practicable either after receiving the parties’ Joint Report and Proposed Scheduling Order or after holding a Scheduling Conference.
(2)Content of Joint Report. The Joint Report must state-to the extent practicable-the parties’ positions on the subjects set forth in Rule 16(b)(2) and (c)(3) and must attach a proposed Scheduling Order. The parties are not required to describe their Early Meeting in the Joint Report, but may do so. Any summary must describe the case with respect to the characteristics in Rule 26.2(b) and (c) to be used in assigning cases to a discovery tier, and must set forth any agreements the parties have reached to streamline the case. In the Joint Report, the parties are not permitted to discuss or criticize the rejection of proposed agreements or to argue that the other party has taken unreasonable positions. Unless ordered by the court, a summary must not exceed 4 pages of text, which length must be split evenly between separate statements of the parties if they do not agree on the summary’s contents. The Joint Report must certify that the parties conferred in good faith, either in person or by telephone as required by Rule 7.1(h), regarding the subjects set forth in Rule 16(b)(2) and (c)(3).
(3)Content of Proposed Scheduling Order. The proposed Scheduling Order must state the discovery tier to which the case is assigned, and must specify deadlines for the following by calendar date, month, and year:

(A) serving initial disclosures under Rule 26.1 if they have not already been served;
(B) identifying areas of expert testimony;
(C) identifying and disclosing expert witnesses and their opinions under Rule 26.1(d);
(D) propounding written discovery;
(E) disclosing nonexpert witnesses;
(F) completing depositions;
(G) completing all discovery other than depositions;
(H) final supplementation of Rule 26.1 disclosures;
(I) unless the court orders otherwise for good cause, a deadline for holding a Rule 16.1 settlement conference or private mediation to occur no more than 15 months after the action commenced, but in no event later than 60 days after the date discovery is set to complete consistent with the discovery tier to which the case is assigned under Rule 26.2(f);
(J) filing dispositive motions;
(K) a proposed trial date; and
(L) the anticipated number of days for trial.
(4)Dates Certain. The Scheduling Order must include calendar deadlines specifying the month, date, and year for each of the items included in the Proposed Scheduling Order, consistent with the discovery tier to which the case is assigned under Rule 26.2(f). The Scheduling Order must also set either: (A) a trial date; or (B) a date for a Trial-Setting Conference under Rule 16(e) at which a trial date may be set. Absent leave of court, no trial may be set unless the parties certify that they engaged in a settlement conference or private mediation, or that they will do so by a date certain approved by the court. The Scheduling Order also may address other appropriate matters.
(5)Modification of Dates Established by Scheduling Order. The parties may modify the dates established in a Scheduling Order that govern court filings or hearings only by court order for good cause. Once a trial date is set, the parties may modify that date only under Rule 38.1.
(6)Request for Discovery Tier.

(A)Stipulations. The parties may include in the Joint Report a proposed stipulation to a discovery tier, setting forth good cause for the requested tiering in compliance with Rule 26.2(c)(1).
(B) Motions; Timing. Any motion to vary the tier to which a case is deemed to be assigned under Rule 26.2(c)(3) must be made by the date on which the parties must file their Joint Report. Any such motion must be filed separately from the Joint Report and may not exceed three pages in length. Any responsive memorandum may not exceed three pages in length and must be filed within 5 days after service of the motion. No reply memorandum is permitted.
(7)Forms. The parties must file the Joint Report and the Proposed Scheduling Order using the forms approved by the Supreme Court and set forth in Rule 84, Forms 11 through 13. They must use Forms 11(a) and (b) for Tier 1 cases, Forms 12(a) and (b) for Tier 2 cases, and Forms 13(a) and (b) for Tier 3 cases.
(8)Applicability. The requirements of Rule 16(b) and (c) apply to all civil actions except:

(A) the requirements of Rule 16(b) apply to actions subject to compulsory arbitration under Rule 72(b), but the requirements of Rule 16(c) do not. In actions subject to compulsory arbitration, no later than 14 days after the Early Meeting, the parties must file a Report of Early Meeting stating the date(s) on which the Early Meeting occurred, and containing either a proposed stipulation to a discovery tier, or the parties’ positions regarding the appropriate discovery tier. The Report of Early Meeting must attach a good faith consultation certificate under Rule 7.1(h); and
(B) the requirements of Rule 16(b) and (c) do not apply to actions seeking the following relief:

(i) change of name;
(ii) forcible entry and detainer;
(iii) enforcement, domestication, transcript, or renewal of a judgment;
(iv) an order pertaining to a subpoena sought under Rule 45.1(e)(2);
(v) restoration of civil rights;
(vi) injunction against harassment or workplace harassment;
(vii) delayed birth certificate;
(viii) amendment of birth certificate or marriage license;
(ix) civil forfeiture;
(x) distribution of excess proceeds;
(xi) review of a decision of an agency or a court of limited jurisdiction;
(xii) declarations of factual innocence under Rule 57.1 or factual improper party status under Rule 57.2; and
(xiii) petitions under Rule 45.2(e).
(d)Scheduling Conferences. On a party’s written request the court must-or on its own the court may-set a Scheduling Conference. At any Scheduling Conference under this Rule 16(d), the court may:

(1) determine what additional disclosures, discovery and related activities will be undertaken and establish a schedule for those activities; including whether and when any examinations will take place under Rule 35;
(2) discuss which form of Joint Report and Scheduling Order is appropriate under Rule 16(c)(7);
(3) determine whether the court should enter orders addressing one or more of the following:

(A) setting forth any requirements or limits for the disclosure or discovery of electronically stored information, including the form or forms in which the electronically stored information should be produced and, if appropriate, the sharing or shifting of costs incurred by the parties in producing the information;
(B) setting forth any measures the parties must take to preserve discoverable documents or electronically stored information; and
(C) adopting any agreements the parties reach for asserting claims of privilege or of protection for work-product materials after production;
(4) determine a schedule for disclosing expert witnesses and whether the parties should be required to provide signed reports from retained or specially employed experts in compliance with Rule 26.1(d)(4);
(5) determine the number of expert witnesses or designate expert witnesses as set forth in Rule 26(b)(4)(D);
(6) determine a date for disclosing nonexpert witnesses and the order of their disclosure;
(7) determine a deadline for filing dispositive motions;
(8) resolve any discovery disputes;
(9) eliminate nonmeritorious claims or defenses;
(10) permit amendment of the pleadings;
(11) assist in identifying those issues of fact that are still contested;
(12) obtain stipulations for the foundation or admissibility of evidence;
(13) determine the desirability of special procedures for managing the action;
(14) consider alternative dispute resolution and determine a deadline for the parties to participate in a settlement conference or private mediation;
(15) determine whether any time limits or procedures set forth in these rules or local rules should be modified or suspended;
(16) determine whether the parties have complied with Rule 26.1;
(17) determine a date for filing the Joint Pretrial Statement required by Rule 16(f);
(18) set a trial date and determine the anticipated number of days needed for trial;
(19) discuss any time limits on trial proceedings, juror notebooks, brief pre-voir dire opening statements, and preliminary jury instructions, and the effective management of documents and exhibits;
(20) determine how a verbatim record of future proceedings in the action will be made; and
(21) discuss other matters and enter other orders that the court deems appropriate.
(e)Trial-Setting Conference.

(1)Generally. If the court has not already set a trial date in a Scheduling Order or otherwise, the court must hold a Trial-Setting Conference-as set by the Scheduling Order-for the purpose of setting a trial date. The Conference must be attended in person-or telephonically, as permitted by the court-by at least one of the attorneys who will conduct the trial for each of the parties and by any unrepresented parties. If a trial date is not set at the Trial-Setting Conference, the court must schedule another Trial-Setting Conference as soon as practicable for the setting of a trial date.
(2)Subject Matter. In addition to setting a trial date, the court may discuss at the Trial-Setting Conference:

(A) the status of discovery and any dispositive motions that have been or will be filed;
(B) a date for holding a Trial Management Conference under Rule 16(g);
(C) imposing time limits on trial proceedings;
(D) using juror questionnaires;
(E) using juror notebooks;
(F) giving brief pre-voir dire opening statements and preliminary jury instructions;
(G) effective management of documents and exhibits; and
(H) other matters that the court deems appropriate.
(f)Joint Pretrial Statement; Trial Management Conference.

(1)Preparation of Joint Pretrial Statement. Counsel or the unrepresented parties who will try the action and who are authorized to make binding stipulations must confer and prepare a written Joint Pretrial Statement, signed by each counsel or unrepresented party. The parties must file the Joint Pretrial Statement no later than 10 days before the date of the Trial Management Conference, or if no conference is scheduled, no later than 10 days before trial. A plaintiff must deliver its part of the Joint Pretrial Statement to all other parties no later than 20 days before the date the Statement must be filed. All other parties must deliver their part of the Joint Pretrial Statement to all other parties no later than 15 days before the date the Statement must be filed.
(2)Contents of Joint Pretrial Statement. The parties must prepare the Joint Pretrial Statement as a single document containing the following:

(A) stipulations of material fact and applicable law;
(B) contested issues of fact and law that the parties agree are material or applicable;
(C) a separate statement by each party of other issues of fact and law that the party believes are material;
(D) a list of witnesses each party intends to call to testify at trial, identifying those witnesses whose testimony will be presented solely by deposition. Each party must list any objection to a witness and the basis for that objection. Unless the court orders otherwise for good cause, no witness may testify at trial other than those listed;
(E) each party’s final list of exhibits to be used at trial for any purpose, including impeachment. Each party must list any objection to an exhibit and the basis for that objection. Unless the court orders otherwise for good cause, no exhibit may be used at trial other than those listed. The parties should identify any exhibits that they stipulate can be admitted into evidence, with such stipulations being subject to court approval;
(F) a statement by each party identifying any proposed deposition summaries or designating parts of any deposition testimony to be offered by that party at trial, other than for impeachment purposes. The parties must designate deposition testimony by transcript page and line numbers. The parties must file with the Joint Pretrial Statement a copy of any proposed deposition summary and the written transcript of designated deposition testimony. Each party must list any objection to the proposed deposition summaries and designated deposition testimony and the basis for that objection. Unless the court orders otherwise for good cause, no deposition testimony may be used at trial other than that designated or counter-designated in the Joint Pretrial Statement or that used solely for impeachment purposes;
(G) a brief statement of the case to be read to the jury during voir dire. If the parties cannot agree on this statement, then each party must submit a separate statement for the court’s consideration;
(H) requested technical equipment;
(I) requested interpreters;
(J) if the trial is to a jury, the number of jurors and alternates, whether the alternates may deliberate, and the number of jurors required to reach a verdict;
(K) whether any party is invoking Arizona Rule of Evidence 615 regarding the exclusion of witnesses from the courtroom;
(L) a brief description of settlement efforts; and
(M) how a verbatim record of the trial will be made.
(3)Delivery of Exhibits. A plaintiff must deliver copies of all its exhibits to all other parties no later than 10 days before the date the Joint Pretrial Statement must be filed. All other parties must deliver copies of all their exhibits to all other parties no later than 5 days before the date the Joint Pretrial Statement must be filed. Any exhibit that cannot be reproduced must be made available for inspection to all other parties on or before these deadlines.
(4)Additional Documents to File if Trial Is to a Jury. If the trial is to a jury, the parties must-on the same day they file the Joint Pretrial Statement-file:

(A) an agreed-on set of jury instructions, verdict forms, and voir dire questions; and
(B) any additional jury instructions, verdict forms, and voir dire questions requested, but not agreed on.
(5)Juror Notebooks. A party intending to submit a notebook to the jurors must serve a copy of the notebook on all other parties no later than 5 days before the Trial Management Conference, or, if no Conference is scheduled, no later than 5 days before the trial.
(6)Trial Memoranda. A party must file any trial memorandum no later than 5 days before the Trial Management Conference, or, if no Conference is scheduled, no later than 5 days before the trial.
(7)Trial Management Conference. Any Trial Management Conference scheduled by the court should be held as close to the time of trial as is reasonable under the circumstances. The Conference must be attended by at least one of the attorneys who will conduct the trial for each of the parties and by all unrepresented parties.
(8)Modifications. Rule 16(f) ‘s provisions may be modified by court order.
(g) Pretrial Orders. After any conference held under this rule, the court must enter an order reciting the action taken. This order controls the later course of the action unless modified by a later court order. The order entered after a Trial Management Conference under Rule 16(g) may be modified only to prevent manifest injustice.
(h)Sanctions.

(1)Generally. Except on a showing of good cause, the court-on motion or on its own-must enter such orders as are just, including, among others, any of the orders in Rule 37(b)(2)(A)(ii) through (vii), if a party or attorney:

(A) fails to obey a scheduling or pretrial order or fails to meet the deadlines set in the order;
(B) fails to appear at a Scheduling Conference, Trial-Setting Conference, or Trial Management Conference;
(C) is substantially unprepared to participate in a Scheduling Conference, Trial-Setting Conference, or Trial Management Conference;
(D) fails to participate in good faith in a Scheduling Conference, Trial-Setting Conference, or Trial Management Conference; or
(E) fails to participate in good faith in the preparation of a Joint Report and Proposed Scheduling Order or a Joint Pretrial Statement.
(2)Award of Expenses. Unless the court finds the conduct substantially justified or that other circumstances make an award of expenses unjust, the court must-in addition to or in place of any other sanction-require the party, the attorney representing the party, or both, to pay:

(A) another party’s reasonable expenses, including attorney’s fees, incurred as a result of the conduct;
(B) an assessment to the clerk; or
(C) both.
(3)Trial Date. The fact that a trial date has not been set does not preclude sanctions under this rule, including the sanction of excluding from evidence untimely disclosed information.
(i)Alternative Dispute Resolution. On motion-or on its own after consulting with the parties-the court may direct the parties to submit the dispute that is the subject matter of the action to an alternative dispute resolution program created or authorized by appropriate local court rules.
(j)Time Limits. The court may impose reasonable time limits on trial proceedings.

Ariz. R. Civ. P. 16

Amended effective January 1, 2017; amended August 31, 2017, effective July 1, 2018; amended August 26, 2020, effective January 1, 2021.

State Bar Committee Note

2008 Amendment to Rule 16(d)

[Formerly Rule 16(b) ]

[Rule 16(d) (formerly Rule 16(b) )] was amended to clarify that a court has the power under Rule 16 to enter orders governing the disclosure and discovery of electronically stored information, the preservation of discoverable documents and electronically stored information, and the enforcement of party agreements regarding post-production assertions of privilege or work product protection. Because these issues typically arise at the beginning of a case, a court need not wait until the parties are ready to address other issues under Rule 16 [d] before holding a hearing under this Rule on these and related subjects.

Orders regarding the disclosure or discovery of electronically stored information may specify the forms and manner in which such information shall be produced. The court also may enter orders limiting (or imposing conditions upon) the disclosure of such information, and may take into account the relative accessibility of the electronically stored information at issue, the costs and burdens on parties in making such information available, the probative value of such information, and the amount of damages (or the type of relief) at issue in the case. See CONFERENCE OF CHIEF JUSTICES, GUIDELINES FOR STATE TRIAL COURTS REGARDING DISCOVERY OF ELECTRONICALLY-STORED INFORMATION 5 (approved August 2006) (noting that in determining discovery issues relating to electronically stored information, a court should consider these factors, among others).

Document retention and preservation issues are especially likely to arise with electronically stored information because the “ordinary operation of computers involves both the automatic creation and the automatic deletion or overwriting of certain information.” Fed. R. Civ. P. 26(f), Advisory Committee Notes on 2006 Amendment. A court has the power under this Rule to incorporate into an order any agreement the parties might reach regarding preservation issues or, absent an agreement, to enter an order in appropriate circumstances imposing such requirements and limitations. In considering such an order, a court should take into account not only the need to preserve potentially relevant evidence, but also any adverse effects such an order may have on a party’s on-going activities and computer operations. A preservation order entered over objections should be narrowly tailored to address specific evidentiary needs in a case, and ex parte preservation orders should issue only in exceptional circumstances. Cf. id. (stating that preservation orders should be narrowly tailored where objections are made and cautioning against “blanket” or ex parte preservation orders); CONFERENCE OF CHIEF JUSTICES, GUIDELINES FOR STATE TRIAL COURTS REGARDING DISCOVERY OF ELECTRONICALLY-STORED INFORMATION 10 (approved August 2006) (“When issuing an order to preserve electronically stored information, a judge should carefully tailor the order so that it is no broader than necessary to safeguard the information in question.”).

If the amount of documents and electronic data to be disclosed is voluminous, an agreement among the parties minimizing the risks associated with the inadvertent production of privileged or otherwise protected material may be helpful in lessening discovery costs and expediting the litigation. As with its counterpart in the Federal Rules of Civil Procedure, this Rule does not provide the court with authority to enter such an order without party agreement, or limit the court’s authority to act on motions to resolve privilege issues. Cf. Fed. R. Civ. P. 16(b), Advisory Committee Notes on 2006 Amendment (clarifying the rule’s scope).

Comment 2014 Amendment to Rule 16(c)

A primary goal of civil case management is the creation of public confidence in a predictable court calendar. Courts should avoid overlapping trial settings that necessitate continuances when the court is unable to hold a trial on the date scheduled. Continuances of scheduled trial dates impose unnecessary costs and inconvenience when counsel, parties, witnesses, and courts are required to engage in redundant preparation. Although early trial settings may be appropriate, a court should employ a case management system that ensures it will be in a position to conduct each trial on the date it has been set.