W.D.N.Y. Loc. R. Civ. P. 16

(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backup, archival, and legacy data (outdated formats or media) and ESI that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.

1Except 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.