APPENDIX G
PROCEDURES BEFORE TRIAL
I. GENERAL
1. The judge may modify these procedures as appropriate in the circumstances of the case, or the parties may suggest such modification of these procedures.
II. EARLY MEETING OF COUNSEL
2. Within 15 days after the date defendant's answer is served or 15 days after a reply to a counterclaim is served, plaintiff's counsel shall communicate with defense counsel, and the counsel shall confer:
a. To initiate preparation of the joint preliminary status report pursuant to 3–4, and
b. Unless exempted by 6, to:
(1) identify each party's factual and legal contentions;
(2) discuss each party's discovery needs and discovery schedule, including providing access to documents that are to be the subject of discovery, e.g., determine what is needed; the objections, if any, to supplying it; and where it is available, with follow-up letters to provide a record. Agreement to informal discovery is encouraged; and
(3) discuss settlement of the action.
Participating counsel shall be counsel of record and such other attorneys as are necessary so that participating counsel for each party are knowledgeable about the case and the identity of witnesses and location of documents.
III. JOINT PRELIMINARY STATUS REPORT
3. No later than 30 days after the early meeting of counsel, the parties shall file with the clerk a Joint Preliminary Status Report, signed by both parties, setting forth answers to the following questions. Separate views may be set forth on any point on which parties cannot agree.
a. Does the court have jurisdiction over the action?
b. Should the case be consolidated with any other case and the reasons therefor;
c. Should trial of liability and damages be bifurcated and the reasons therefor;
d. Should further proceedings in this case be deferred pending consideration of another case before this court or any other tribunal and the reasons therefor;
e. In cases other than tax refund actions, will a remand or suspension be sought and the reasons therefor and the proposed duration;
f. Will additional parties be joined and, if so, a statement describing such parties, their relationship to the case, and the efforts to effect joinder and the schedule proposed to effect joinder;
g. Does either party intend to file a motion pursuant to RCFC 12(b), 12(c) or 56 and, if so, a schedule for the intended filing;
h. What are the relevant issues?
i. What is the likelihood of settlement?
j. Do the parties anticipate proceeding to trial. Does any party or do the parties jointly, request expedited trial scheduling, see 6b, and, if so, the reasons why the case is appropriate therefor. A request for expedited trial scheduling is generally appropriate when the parties anticipate that discovery, if any, can be completed within a 90-day period, the case may be tried within 3 days, no dispositive motion is anticipated, and a bench ruling is sought. The requested place of trial shall be stated. Before such a request is made, the parties shall confer specifically on this subject;
k. Is there any other information of which the court should be aware at this time?
4. If discovery is required, the Joint Preliminary Status Report should set forth a proposed discovery plan, see 6b, including a proposed deadline.
5. The Joint Preliminary Status Report shall be deferred indefinitely if on or before the date the Joint Preliminary Status Report is due a dispositive motion addressing all issues is filed.
6. Scheduling Orders.
a. In Standard Cases. After the Joint Preliminary Status Report is filed or after a status conference is held after the report is filed, the judge promptly shall enter the scheduling order called for by RCFC 16(b). If the judge does not accept the parties' proposed discovery deadline, the judge shall set a deadline or take other appropriate action to monitor the progress of discovery until a deadline can be set. Scheduling of the pretrial conference, 9, and submissions due in 11–15 may be scheduled at a later time.
b. In Expedited Trial Cases. If the judge grants a request for expedited trial scheduling, a scheduling order shall be entered promptly. The scheduling order shall set a deadline for discovery, the date for the pretrial conference, and the trial date. A date shall be set for trial to commence as soon as practicable. Except by agreement of the parties or leave of court, each party shall be limited to 5 discovery depositions and 30 interrogatories, including subparts. Within 30 days after issuance of the scheduling order, each party shall deliver to the other a list of all witnesses and exhibits described in 10a, b. These lists may be supplemented pursuant to RCFC 26(e)(1). The meeting of counsel called for by 10 shall be held not later than 7 days before the pretrial conference. The filings required by 12 and 13 shall be filed by the date of the pretrial conference. The requirements of 9, 11 and 14 shall not apply.
IV. DISCOVERY
7. Form of Interrogatories, Requests for Admission, Responses. A party shall number interrogatories and requests for admission sequentially without repeating the numbers it has used in any prior set of interrogatories or requests for admission. Each interrogatory and request for admission shall be started at the top of a new page. Answers or objections must be typed by the opposing party on the page containing the interrogatory or request for admission. If additional space is required, the answering party may add pages immediately succeeding the page on which the interrogatory or request for admission is written, denominating the pages by the same number but adding a sequential letter designation, e.g., 10a, 10b, etc. By counsel's signature to the answers and pursuant to RCFC 11, counsel for the responding party shall certify that counsel has made diligent effort to provide answers to all portions of interrogatories or requests for admission not specifically objected to.
8. Discovery Motions. A motion to compel or protect from discovery shall contain a statement by the movant that the parties have consulted in good faith to resolve the matters in dispute.
V. PRETRIAL CONFERENCE
9. Scheduling. Prior to or promptly upon the close of discovery, the judge shall enter a pretrial scheduling order. The judge shall also set the dates by which the memoranda called for by 11–15 are due. The attorneys appearing at the pretrial conference shall be the attorneys who will try the case, are thoroughly familiar with it, and are authorized to act for their principals.
10. Meeting of Counsel. No later than 60 days before the pretrial conference, counsel for the parties shall:
a. Exchange all exhibits to be used at trial, unless previously exchanged, except those to be used for impeachment. Failure to list an exhibit or to amend the list to add an exhibit at the earliest possible practicable time, if the existence or relevance of the exhibit did not become apparent until after exchange of the exhibit list, shall result, absent a showing of a compelling reason for the failure, in an exclusion of the exhibit at trial. Each exhibit shall be identified by an exhibit number and description.
b. Exchange a final list of names and addresses of witnesses, including expert witnesses and telephone numbers of third-party witnesses to be called at trial, except those to be used for impeachment, unless previously exchanged. Failure of a party to list a witness, or to amend the list to add a witness at the earliest practicable time if the existence or relevance of the witness did not become apparent until after the exchange of the witness list, shall result, absent agreement of the parties or a showing of a compelling reason for the failure, in the exclusion of that witness' testimony at trial. Any witness whose identity has not been previously disclosed shall be subject to discovery. As to each witness, the party shall indicate the specific topics to be addressed in the expected testimony. If expert witnesses are to be called, the parties shall exchange a short narrative statement of the qualifications of the expert, if this information has not already been obtained through discovery. If reports of experts to be called at trial have been prepared, and not yet exchanged, they shall be exchanged by this date, but shall not take the place of the narrative statement.
The parties shall also confer in order:
c. To disclose to opposing counsel the intention to file a motion pursuant to 16 leave to file transcript of deposition for introduction at trial;
d. To resolve, if possible, any objections to the admission of oral or documentary evidence;
e. To disclose to opposing counsel all contentions as to applicable facts and law, unless previously disclosed;
f. To engage in good-faith, diligent efforts to stipulate and agree to facts about which the parties know, or have reason to know, there can be no dispute for the purpose of simplifying the issues at trial; and
g. To exhaust all possibilities of settlement.
11. Memorandum of Contentions of Fact and Law. Unless the judge orders the filing of simultaneous memoranda or requires filing of proposed findings of fact, see 11a–b, in addition to the other memoranda called for, no later than 45 days before the pretrial conference, plaintiff shall file a Memorandum of Contentions of Fact and Law containing a summary of plaintiff's basic factual contentions together with any applicable legal authority. The memorandum shall contain a full but concise exposition of plaintiff's theory of the case and a statement in narrative form of what plaintiff expects to prove. The memorandum shall also address all anticipated legal questions, including evidentiary problems, that plaintiff expects may arise during the course of trial. If plaintiff believes bifurcation of issues for trial is appropriate, the memorandum shall contain a request therefor, together with a statement of reasons. No later than 21 days before the pretrial conference, defendant shall file its responsive memorandum with the same form and contents as plaintiff's.
a. Plaintiff's Proposed Findings of Fact. The judge may order plaintiff to file proposed findings of fact in lieu of the memorandum of factual contentions. Each proposed finding shall be listed on a separate page.
b. Defendant's Proposed Findings of Fact. If the judge orders proposed findings of fact, defendant shall respond to each of plaintiff's proposed findings on the same page. Defendant may propose additional findings of fact, on a separate page, to which plaintiff shall respond on the same page.
12. Witness List. a. Each party shall file, together with the Memorandum of Contentions of Fact and Law, a separate statement setting forth a list of witnesses to be called at trial, other than those to be used exclusively for impeachment. As to each witness, the party shall indicate the specific topics to be addressed in the expected testimony and the time needed for direct examination. Absent agreement of the parties or a showing of a compelling reason for the failure timely to identify the witness, no witness, expert or otherwise, will be permitted to testify, other than for impeachment, who has not been identified in time to allow the witness' deposition to be taken or the substance of the witness' knowledge ascertained, or, in the case of an expert, to allow the facts relief upon and opinions held by the expert to be obtained by RCFC 26(b)(3)(A) or deposition.
b. Any party intending to present substantive evidence by way of deposition testimony, other than as provided by Federal Rules of Evidence 801(d), shall serve and file a separate motion for leave to file the transcript of this testimony. The motion shall show cause why the deposition testimony should be admitted and identify specifically the portions of the transcript the party intends to use at trial. If the motion is granted, only those portions of the transcript may be filed.
13. Exhibit List. Each party shall file, together with the Memorandum of Contentions of Fact and Law, a separate statement setting forth a list of exhibits it expects to offer at trial, other than those to be used exclusively for impeachment. In addition, any party intending to introduce more than 50 document exhibits shall provide as to each document, following its description, a short synopsis of the relevant portion of its contents and a brief statement of the document's significance to issues at trial. For multiple-page documents, reference shall be made to specific page numbers.
14. Stipulations. The judge may direct the parties before or after the pretrial conference to file a stipulation setting forth all matters to which the parties stipulate.
15. Issues of Fact and Law. No later than the date for filing the defendant's Memorandum of Contentions of Fact and Law, the parties shall also file a joint statement setting forth the issues of fact and the issues of law to be resolved by the court. Issues should be set forth in sufficient detail to enable the court to resolve the case in its entirety by addressing each of the issues listed. The statement of issues shall control the admissibility of evidence at trial and evidence will be deemed to be irrelevant unless it pertains to one or more of the issues.
16. Responses. The parties are expected to cooperate in the preparation of the documents specified in 11–15. Any responses to matters raised by the opposing party should therefore be included in each party's initial submission. However, if anything new or unexpected is discovered, it may be addressed in a brief response which must be filed under cover of motion for leave immediately upon learning of it.
VI. OTHER MATTERS
17. Post-Trial Briefing. The judge may order the filing of post-trial briefs. Post-trial briefing is not a matter of right.
(As amended Dec. 4, 1992.)