(a) General Provisions. In most cases, the court will conduct a pretrial conference after discovery is complete and before the filing of dispositive motions (e.g., summary judgment). If the case remains at issue after dispositive motions have been decided, the judge who will preside at trial usually will conduct another pretrial conference (or conferences) to formulate a trial plan to facilitate the admission of evidence at trial; the court will set deadlines for filing and ruling on any objections to final witness and exhibit disclosures and deposition designations, motions in limine, proposed instructions in jury cases, proposed findings of fact and conclusions of law in non-jury cases, and any other matters calculated to make trial more efficient.
The pretrial conferences contemplated by Fed. R. Civ. P. 16(d) will be held before a judge or magistrate judge with court participation throughout unless otherwise directed by the court. Parties may be present at the pretrial conference and they must be present when ordered by the court.
The court will prepare the pretrial order or designate counsel to do so. At a time as may be ordered by the court under Fed. R. Civ. P. 16(b)(3)(B)(v), the parties must submit a proposed pretrial order in the form prescribed by the court. The parties have joint responsibility to attempt in good faith to formulate an agreed order which the judge can sign at the conference. If the parties disagree on any particulars, they are each to submit proposed language on the points in controversy, for the judge to rule on at the conference. To attempt in good faith to formulate an agreed order means more than mailing or faxing a form or letter to the opposing party. It requires that the parties in good faith converse, confer, compare views, consult and deliberate, or in good faith attempt to do so. Objections to the pretrial order must be made in writing and within such time as the court may specify.
(b) Effect of Pretrial Order. The pretrial order, when approved by the court and filed with the clerk, together with any memorandum entered by the court at the conclusion of the pretrial conference, will control the subsequent course of the action unless modified by consent of the parties and court, or by an order of the court to prevent manifest injustice.
(c) Sanctions. Should counsel or a pro se litigant fail to appear at the pretrial conference or fail to comply in good faith
36 with the provisions of this rule, the court may, in its discretion, enter a judgment of dismissal or default. Alternatively, or in addition thereto, the court may impose any sanction provided for in Fed. R. Civ. P. 16(f) or D. Kan. Rule 11.1.
(d) Witness and Exhibit Disclosures. At times ordered by the court under Fed. R. Civ. P. 16(b) and (c)(1)(G), the parties will exchange and file witness and exhibit disclosures pursuant to Fed. R. Civ. P. 26(a)(3).
(1) Content of Disclosures. Witness disclosures must set forth the address of each witness as well as the subject matter about which each witness is expected to testify. Witness and exhibits disclosed by one party may be called or offered by the other party. If a witness or exhibit appears on a final Fed. R. Civ. P. 26(a)(3) disclosure that has not previously been included in a Fed. R. Civ. P. 26(a)(1) disclosure (or timely supplement thereto), that witness or exhibit probably will be excluded at trial. See Fed. R. Civ. P. 37(c)(1). This restriction does not apply, however, to rebuttal witnesses or documents, the necessity of which could not reasonably be anticipated as of the deadline for filing final witness and exhibit disclosures. The parties' disclosures must also specifically identify specific deposition exhibits to be used. Witnesses expected to testify as experts must be so designated.
(2) Trial Exhibits. Before meeting with the courtroom deputy to mark exhibits, the parties must exchange copies of all proposed exhibits and attempt to agree as to their authenticity and relevancy.
(3) Testimony by Deposition. With respect to any witness who will appear by deposition, the disclosure must designate by page and line (or other appropriate designation in the case of a videotaped deposition) those portions of the deposition the offering party intends to read into evidence. The opposing party must then serve upon the offering party a counter designation of those portions of the deposition which the opposing party believes in fairness ought to be considered with the part the offering party has designated in accordance with Fed. R. Civ. P. 32(a)(4). Any disputes between the parties concerning deposition testimony, including any unresolved evidentiary objections, must be brought to the attention of the court by a separate filing with the Clerk of Court, by the deadline set forth in the pretrial order. The objecting party must deliver a copy of the deposition to the judge along with this filing. A party intending to offer deposition evidence at trial must provide the trial judge a copy of the deposition before the commencement of trial. For any depositions used at trial, all exhibit designations must be re-marked by the offering party to correspond to the trial exhibit designations.
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As amended 10/13, 3/04, 9/00, 3/20/92.