(a) General Provisions.
(1) Pretrial Conference. The pretrial conference contemplated by Fed. R. Civ. P. 16(d) will be held before a judge or magistrate judge with court participation throughout unless the court otherwise directs. Parties may be present at the pretrial conference and must be present when the court orders.
(2) Discovery. Ordinarily the parties should have completed discovery before the pretrial conference. If a party discovers additional witnesses or evidence after the pretrial conference, the discovering party must immediately alert all parties and the court in writing.
(3) Pretrial Order. The court will prepare the pretrial order or designate that the attorneys do so. At a time ordered by the court under Fed. R. Civ. P. 16, the parties must submit a proposed final pretrial order in the prescribed form.
(4) Good Faith Duty. The parties are jointly responsible for attempting in good faith to formulate an agreed order the judge or magistrate judge can sign at the conference. If the parties disagree on any particulars, they each must submit proposed language on the points in controversy for the court 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 the parties in good faith converse, confer, compare views, consult, and deliberate, or in good faith attempt to do so.
(5) Objections. Objections to the pretrial order must be made in writing and within such time as the court may specify.
(b) Procedure at Final Pretrial Conference. The court will conduct the final pretrial conference substantially in conformity with the following procedural steps:
(1) The parties must state the basis for the court’s jurisdiction and any objections to jurisdiction, venue, or propriety of the parties.
(2) The parties must state concisely their factual contentions and the theories of their claims, defenses, and claims for relief.
(3) The court may rule upon any proposed amendments.
(4) The court and attorneys will confer regarding undisputed matters and attempt to obtain admissions and stipulations.
(5) The parties must state the issues of fact and law.
(6) The court and attorneys will discuss uncompleted discovery. The court may permit parties to complete discovery and establish guidelines for completion.
(7) Provision must be made for the exchange and filing of lists of witnesses to be called at trial and exhibits to be offered at trial. Ordinarily, only witnesses and exhibits listed pursuant to pretrial orders may be used at trial. But the court may permit a party to call a witness not previously listed under such circumstances as the court considers just.
(8) The parties must identify pending motions and anticipated motions.
(9) A determination as to whether the case is for trial to the court or to a jury must be made.
(10) The court and the attorneys will consider the position of the parties relative to settlement and explore the possibility of settlement, including the feasibility of a settlement conference, summary trial, mediation, arbitration, or other alternative methods of dispute resolution.
(c) Effect of Pretrial Order. The pretrial order, when approved by the court and filed, together with any memorandum entered by the court at the conclusion of the final pretrial conference, controls the subsequent course of the action unless modified by:
(1) consent of the parties and court; or
(2) an order of the court to prevent manifest injustice.
(d) Sanctions. If an attorney or a pro se litigant fails to appear at the pretrial conference or fails to comply in good faith with this rule, the court may enter a judgement of dismissal or default. Alternatively, or in addition, the court may impose any sanction provided for in Fed. R. Civ. P. 16(f) or D. Kan. Rule 11.1.
(e) Witness and Exhibit Disclosures. At times ordered by the court under Fed. R. Civ. P. 16(b) and (c)(7), the parties will exchange and file witness and exhibit disclosures pursuant to Fed. R. Civ. P. 26(a)(3).
(1) Content of Witness Disclosures. Witness disclosures must set forth the following for each witness:(A) the witness’s address;(B) the subject matter of the testimony; and(C) a brief synopsis of the substance of the facts to which each witness is expected to testify.
(2) Witnesses Previously Disclosed. Witness and exhibits disclosed by one party may be called or offered by the other party.
(3) Witnesses Previously Undisclosed. If a witness or exhibit not previously included in a Rule 26(a)(1) disclosure (or timely supplement thereto) appears on a final Rule 26(a)(3) disclosure, 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.
(4) Deposition Exhibits. The parties’ disclosures must also identify specific deposition exhibits to be used.
(5) Expert Witnesses. Witnesses expected to testify as experts must be so designated.
(6) Trial Exhibits. Before exhibits, the parties must exchange copies of all proposed exhibits and attempt to agree as to their authenticity and relevancy.
(7) Testimony by Deposition.
(A) Deposition Designations. 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 present.
(B) Counter Designations. The opposing party must then counter designate those portions of the deposition 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).
(C) Disputes Regarding Deposition Testimony. The parties must notify the court of any disputes concerning deposition testimony, including any unresolved evidentiary objections, by filing an appropriate document in accordance with deadlines set forth in the pretrial order. The objecting party must deliver a copy of the deposition to the judge along with this filing.
(D) Copies and Exhibits. 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, the offering party must re-mark all exhibit designations to correspond to the trial exhibit designations.
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