Scheduling Orders

Scheduling Orders

Rule 16(b) directs the district judge to issue a scheduling order, a written timetable that fixes deadlines for the main stages of the case.¹ The verbs mark the difference from a conference. Rule 16(a) says the court may hold one; Rule 16(b) says the judge must set a schedule in many cases.² A judge can decline to hold a single conference and still owe the parties a timetable.

Federal judges manage their cases actively, and the scheduling order records the result. Often an early scheduling conference sets deadlines for stages such as preliminary motions, automatic disclosure, document production and depositions, summary judgment motions, and amendment of the pleadings; the order puts those deadlines in writing.³ This section follows the order through its life: when it must issue and what triggers it, what it must contain, what it may add, and when its dates can move.

Timing and Triggers

Rule 16(b)(1) makes the order a duty. Except in categories of actions exempted by local rule, the district judge, or a magistrate judge when a local rule so authorizes, must issue a scheduling order.⁴ A local rule exempting a category of actions is the only exemption the rule recognizes; a judge's impression that a particular case is simple does not excuse the order. The magistrate-judge clause changes who may sign the order and leaves the duty untouched.

Two routes lead to the order. The judge may issue it after receiving the parties' report under Rule 26(f), the discovery plan the lawyers prepare after conferring, or after consulting the parties' attorneys and any unrepresented parties at a scheduling conference.⁵ Either route suffices, so a judge can issue the order on the lawyers' report alone, with no conference. That flexibility explains how the order reaches nearly every case while conferences stay optional.

The conference route is narrower than it once was. Before the 2015 amendment, the judge could consult counsel by telephone, mail, or other means; the current text speaks only of consulting counsel and unrepresented parties at a scheduling conference. The Committee Note gives the reason: a scheduling conference works better when the court and the parties communicate directly and at the same time.⁶ A judge who mails counsel a proposed schedule and issues an order after reading their written responses has therefore not used the conference route. The order stands only if it rests on the Rule 26(f) report.

The report route rests on planning that happens before the judge acts. Rule 26(f) requires the attorneys to meet before the scheduling order is due and to discuss what discovery they plan to take and how they will take it.⁷ The Rule 26(f) conference is not a perfunctory exercise.⁸ In the usual sequence the lawyers meet and report, the judge confers with them at the Rule 16 conference, and the scheduling order follows, generally based in part on the parties' report.⁹ The judge thus sets dates with knowledge of the case instead of guessing.

Rule 16(b)(2) supplies the clock. Take Peter Painter's suit against the Toyota Car Company over an alleged design defect in a Camry sedan. The complaint gives only minimal notice, but it states a claim adequately, so Toyota cannot count on a motion to dismiss for failure to state a claim to end the case.¹⁰ The scheduling clock therefore starts to matter once Toyota is served. The judge must issue the order as soon as practicable and, unless the judge finds good cause for delay, within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared.¹¹ As soon as practicable is the standard; the two periods are outer limits, so a judge who can act sooner should.

The rule offers two periods and takes the earlier because each guards against a different delay. The 60-day appearance period shortens the wait once a defendant has engaged. The 90-day service period caps the wait when a defendant is slow to appear or never appears; without it, the appearance period would never start. The word any governs cases with several defendants: the earliest service or appearance by any defendant starts the corresponding period, and the earliest resulting date controls.

Stems that supply a service date and an appearance date test step three. The usual error is to measure from only one of the two events. Measuring only from service gives day 90 where day 80 is correct in the first variation, and measuring only from appearance gives day 130 where day 90 is correct in the second.

Required Contents

Rule 16(b)(3)(A) states the mandatory core of every order: it must limit the time to join other parties, amend the pleadings, complete discovery, and file motions.¹³ Those limits make the order a timetable for the joinder of additional parties, the amendment of pleadings, and the completion of discovery, with a deadline for motions to close the sequence.¹⁴ The list is a floor. The court may add the optional items taken up next, but no addition can replace one of the four.

The four limits mark the four points at which a case changes shape or builds its record. Joinder adds participants, amendment alters the claims and defenses, discovery gathers the evidence, and motions ask the court to rule on that evidence. Leave any one stage open-ended and it keeps reopening the rest: a party added late needs its own discovery, a claim added late needs its own proof, and a late motion crowds the trial calendar. Fixed dates for all four let the lawyers plan backward, finishing discovery before the motion papers are due and bringing every party into the case before discovery closes.

An order can give the case a trial date and still fail the rule, because a trial date belongs to the permitted contents discussed below. A vague promise that discovery will end in due course fails the same way. The order must actually limit the time for each stage.

Deadlines matter most when someone misses one. In Cleveland v. Porca Co., the trial court properly denied a motion to add a new claim after the deadline for amendments had passed and the defendant had already filed its witness and exhibit lists for trial.¹⁵ A written deadline gives the court, and the opposing party, something concrete to point to. How such a deadline can move is the subject of the last subsection.

Permitted Contents

Rule 16(b)(3)(B) adds a second list, and its verb is may.¹⁷ The order must limit the time for joinder, amendment, discovery, and motions; beyond those limits, it may do any of the following:

1. Modify the timing of disclosures under Rules 26(a) and 26(e)(1).¹⁸
2. Modify the extent of discovery.¹⁹
3. Provide for disclosure, discovery, or preservation of electronically stored information.²⁰
4. Include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after production, including agreements under Federal Rule of Evidence 502.²¹
5. Direct that, before moving for an order relating to discovery, the movant must request a conference with the court.²²
6. Set dates for pretrial conferences and for trial.²³
7. Include other appropriate matters.²⁴

Each item answers a problem that only some cases have. Every case needs the four limits, so the rule requires them. A protocol for electronically stored information is worth drafting when electronic records are central to the dispute, and a pre-motion conference is worth requiring when discovery disputes are likely. A permissive list lets the judge tailor the order to the case at hand instead of forcing every case into one form.

The first two items let the judge adjust the machinery of discovery. The order may move the timing of the disclosures that Rules 26(a) and 26(e)(1) govern, and it may change the extent of discovery. The general timing and limits in the discovery rules apply to every case alike, while a judge setting the schedule can see how many parties, claims, and witnesses this case involves.

Amendments in 2006 and 2015 emphasized the discovery process, including electronically stored information, agreements on asserting privilege and work-product protection, and the handling of discovery disputes.²⁵ Three items on the permissive list arrived in 2015: preservation of electronically stored information, agreements under Federal Rule of Evidence 502, and a requirement that the movant ask for a conference with the court before making any motion in a discovery dispute.²⁶

The preservation item ties to the planning the lawyers must do before the judge acts. Rule 26(f)(3)(C) now requires the parties to state their views and proposals on preserving electronically stored information in the plan they submit before the court's Rule 16 conference. The requirement forces them to confront preservation and e-discovery at the outset instead of facing sanctions motions on the back end for failing to preserve or produce information.²⁷ The scheduling order can then carry the result.

The privilege item follows the same logic. An order under Evidence Rule 502(d) can provide that producing a privileged document in the pending litigation waives nothing, in that action or in any other state or federal proceeding. That is powerful protection against inadvertent production, and the commentary sees little reason for either the parties or the court not to request one.²⁸ The scheduling-order item speaks of agreements the parties reach, so the order records what the lawyers negotiated and imposes no terms of its own.

The pre-motion conference item adds a step ahead of the motion. The movant must request a conference with the court before filing a motion relating to discovery, so the judge hears about the dispute before formal motion practice begins. Dates for pretrial conferences and for trial also sit on this list, a placement that surprises students who treat a trial date as the heart of any schedule. The last item, other appropriate matters, leaves the list open-ended, but it too sits under may, so it cannot substitute for a required limit.

The instinct that loses points is to treat the 2015 additions as mandatory because they are recent and prominent. Newness does not change the verb: those three items sit under may, with the other four. The opposite error costs as much. An order that adopts every permissive item but omits a limit on the time to file motions is still deficient.

Modifying a Schedule

Once the order issues, its dates can move, but only on the rule's terms. Rule 16(b)(4) provides: “A schedule may be modified only for good cause and with the judge's consent.”³⁰ The rule speaks of “a schedule,” so it reaches every date in the order, the four required limits and any optional date the judge added, such as a trial date. The two conditions are joined by and, and each must be met.

Each half of the rule has its own job. The first puts a burden on the party who wants a different date: that party must give the court a reason that justifies departing from a deadline the judge set after reviewing the lawyers' own plan, and a bare wish for more time gives the judge nothing to weigh. The second half keeps the decision with the court. A persuasive reason does not amend the order; the judge's consent does.

The consent requirement protects the court's calendar. The dates interlock, because the motions deadline typically follows the discovery cutoff and the trial date rests on both, so moving one date can push several others onto the judge's calendar. If lawyers could move deadlines by agreement, the schedule would be a suggestion, and cooperative lawyers could stretch any case as long as they liked. Requiring good cause as well keeps the judge's consent from becoming automatic.

Lawyers who proceed on an unapproved stipulation risk violating the order, and failing to obey a scheduling or other pretrial order is one of the grounds on which Rule 16(f) permits sanctions, a point taken up later in this chapter.³¹

The standard matters most in one recurring setting: a motion to amend a pleading after the deadline for amendments has passed. Every order must limit the time to amend the pleadings, so nearly every case has such a deadline, and a request to amend after it passes asks the court to modify the schedule. The movant must therefore satisfy Rule 16's good-cause standard, which is stricter than the liberal amendment policy of Rule 15.³² A liberal test after the deadline would let a party who missed the date face the same easy test as a party who met it, and the deadline would limit nothing. Good cause gives the deadline its force by requiring the late movant to account for the lateness. The stakes are practical as well, since a claim added late may need its own discovery and motions, which reopens the stages the order was meant to close.

Good cause under Rule 16(b)(4) is the first of several modification standards in this chapter. A later section sets it beside the standards for other pretrial changes, so that the right one can be chosen by asking what has been filed and when.