(a) Alternative Dispute Resolution. This Court has adopted an Alternative Dispute
Resolution Plan (“ADR”), as implemented by Standing Order, under which certain civil
cases are referred automatically to ADR upon filing. A copy of the Plan is available on
the Court’s website, http://www.nywd.uscourts.gov. The Clerk of Court will provide
notice to the parties when a case is automatically referred. Any civil case that is not
automatically referred may be referred to ADR by order of the presiding Judge, in their
discretion. The ADR process is confidential. Litigants in cases not referred automatically
to ADR must consider possible agreement to the use of an ADR process.
(b) Initial Pretrial Conference
(1) Purpose. The Court shall hold an initial pretrial conference in all cases except
those exempted from initial disclosure requirements under Fed. R. Civ. P.
26(a)(1)(B). The purpose of this conference is to establish a case management plan.
(2) Party Conference. Prior to the initial pretrial conference, counsel for all parties
and any pro se litigants shall confer as required by Fed. R. Civ. P. 26(f), and shall
file with the Court a joint, written discovery plan consistent with Fed. R. Civ. P.
26(f). If they are unable to agree to a plan, each party shall file its own proposed
plan.
(A) Electronically Stored Information. The Court expects the parties to
cooperatively reach agreement on how to preserve and conduct discovery
of electronically stored information (“ESI”).1 Prior to the Fed. R. Civ. P.
26(f) conference, counsel should become knowledgeable about their clients’
information management systems and their operation, including how
information is stored and retrieved. In addition, counsel should make a
reasonable attempt to ascertain the contents of their client’s ESI, including
backup, archival, and legacy data (outdated formats or media) and ESI that
may not be reasonably accessible. In particular, prior to or at the Fed. R.
Civ. P. 26(f) conference, the parties should confer regarding the following
matters:
(i) Preservation. Counsel should attempt to agree on steps the parties
will take to segregate and preserve ESI in order to avoid accusations
of spoliation.
(ii) E-mail Information. Counsel should attempt to agree on the scope
of e-mail discovery and e-mail search protocol.
(iii) Back-up and Archival Data. Counsel should attempt to agree on
whether responsive back-up and archival data exists, the extent to
which back-up and archival data is reasonably accessible, and who
will bear the cost of obtaining such data.
(iv) Format and Media. Counsel should attempt to agree on the format
and media to be used in the production of ESI, and whether
production of some or all ESI in paper form is agreeable in lieu of
production in electronic format.
(v) Reasonably Accessible Information and Costs. Counsel should
attempt to determine if any responsive ESI is not reasonably
accessible, i.e., is accessible only by incurring undue burdens or
costs.
(B) Privileged or Trial Preparation Materials. Counsel also should attempt
to reach agreement regarding what will happen in the event privileged or
trial preparation materials are inadvertently disclosed.
Except for the term “document,” which is defined at Loc. R. Civ. P. 26(d)(3)(B), the Court will rely
on The Sedona Conference Glossary: E-Discovery & Digital Information Management (Second
Edition), for definitions of terms related to discovery of ESI.
(3) Content of the Initial Conference. In addition to all of the matters in Fed. R. Civ.
P. 16(c)(2), counsel and unrepresented parties shall be prepared to discuss
meaningfully the following:
(A) if the case is referred automatically to ADR pursuant to the Court’s
Alternative Dispute Resolution Plan, selection of a neutral, and timing for
ADR;
(B) if the case is not referred automatically to ADR, possible stipulation to the
use of a confidential ADR process;
(C) any problems currently known and reasonably anticipated to arise in
connection with discovery of ESI;
(D) proposed methods to limit and/or decrease the time and expense of
discovery;
(E) the use of experts during discovery and at trial;
(F) the possibility of consent to the Magistrate Judge conducting all or part of
the proceedings in a case provided, however, that unless there is unanimous
consent among the parties, no party shall discuss its position with the
Court; and
(G) for cases in which class claims are alleged,
(i) the timing of the filing of a motion for class certification;
(ii) the appointment of interim class counsel;
(iii) the timing and scope of discovery, including discovery of
Electronically Stored Information, prior to resolution of the motion
for class certification, pursuant to Loc. R. Civ. P. 23(c); and
(iv) a schedule for briefing a motion for class certification.
(4) Scheduling Order. After the initial pretrial conference, pursuant to Fed. R. Civ.
P. 16(b), the Court shall issue an order providing:
(A) deadlines for joinder of parties and amendment of pleadings;
(B) deadlines for Alternative Dispute Resolution, if applicable;
(C) if applicable, deadlines for the items described in Loc. R. Civ. P.
16(b)(3)(G);
(D) a discovery cut-off date;
(E) a deadline for filing dispositive motions;
(F) deadlines for the disclosure of expert witnesses, if applicable; and
(G) any other matter decided or agreed upon at the initial pretrial conference.
A scheduling order cannot be modified except by Court order.
(c) Settlement Conferences.
(1) Applicable Cases. Unless a case will proceed to ADR, the Court retains the
discretion whether to hold a judicial settlement conference.
(2) Party Obligations. The plaintiff(s) shall provide the defendant(s) with a written
settlement demand at least fourteen (14) days before the first settlement conference,
and the defendant(s) shall respond to the demand in writing at least seven (7) days
before the conference, so that the parties and their attorneys have a meaningful
opportunity to consider and discuss the settlement proposals. In cases involving
insurance coverage, defense counsel also shall consult with the insurance carrier
prior to the conference regarding its position. Judges may, at their discretion,
require a preconference, written submission from each party.
(3) Attendance. At the settlement conference, the attorneys shall be present and shall
be prepared to state their clients’ respective positions to the Court. Judges may, at
their discretion, require the attendance of parties, party representatives, insurance
carriers, and others whose attendance they believe may facilitate settlement, either
in person or by telephone.
(4) Further Settlement Conferences. If a settlement is not reached at the first
conference, the Court may schedule additional settlement conferences from time
to time, as appropriate.
(d) Additional Pretrial Conferences. The Court may schedule additional pretrial
conferences in its discretion, or at a party’s request. Counsel and pro se litigants shall be
prepared to provide a status update on discovery, motion practice, and the prospects for
settlement.
(e) Final Pretrial Conference.
(1) Timing and Content. A final pretrial conference shall be held at the direction of
the Court within thirty (30) days of the trial date. Trial counsel shall be present at
this conference and shall be prepared to discuss all aspects of the case and any
matters which may narrow the issues and aid in its prompt disposition, including:
(A) the possibility of settlement;
(B) motions in limine;
(C) the resolution of any legal or factual issues raised in the pre-trial statement
of any party (see subsection 2);
(D) stipulations (which shall be in writing); and
(E) any other matters that counsel or the Court deems appropriate.
(2) Pretrial Statement. No later than fourteen (14) days before the date of the final
pretrial conference, or by such other date as may be set by Court order, counsel for
each party shall file and serve a pretrial statement which includes the following:
(A) a detailed statement of contested and uncontested facts, and of the party’s
position regarding contested facts;
(B) a detailed statement of the issues of law involved and any unusual questions
relative to the admissibility of evidence, together with supporting authority;
(C) proposed jury instructions and verdict form, if any, which shall also be
provided to chambers in Word format;
(D) the names and addresses of witnesses (other than rebuttal witnesses)
expected to testify, together with a brief statement of their anticipated
testimony;
(E) a brief summary of the qualifications of all expert witnesses, and a concise
statement of each expert’s expected opinion testimony and the material
upon which that testimony is expected to be based;
(F) a list of exhibits anticipated to be used at trial, except exhibits which may
be used solely for impeachment or rebuttal;
(G) a list of any deposition testimony to be offered in evidence;
(H) an itemized statement of each element of special damages and other relief
sought; and
(I) such additional submissions as the Court directs.
Counsel are encouraged to review the individual Rules of the assigned District
Judge or Magistrate Judge for specific pretrial statement requirements.
(3) Marking Exhibits. Prior to the final pre-trial conference, counsel shall meet to
mark and list each exhibit contained in the pre-trial statements. At the conference,
counsel shall produce a copy of each exhibit for examination by opposing counsel
and for notice of any objection to its admission in evidence.
(4) Post-Conference Order. Following the final pretrial conference, a pretrial order
may be entered as directed by the Court, and the case certified as ready for trial.
(f) Attorneys’ Binding Authority. Each party represented by an attorney shall be represented
at each Court conference by an attorney who has the authority to bind that party regarding
all matters previously identified by the Court for discussion at the conference and all
reasonably related matters.
