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Judicature

PUBLISHED BY:
Bolch Judicial Institute
Duke Law School

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Reviving Rules 16 and 26

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Vol. 109 No. 1 (2025) | Celebrating a Decade at Duke | Download PDF Version of Article
Illustration of five diverse hands interacting with interlocking gears of various sizes, symbolizing teamwork, collaboration, and systems working together. The background is composed of overlapping dark teal shapes, enhancing the sense of motion and unity.

Rule 16 (on pretrial conferences and scheduling) and Rule 26 (on disclosures and discovery) give judges important tools to improve case management. Here’s how they should use them.

Click here to download this article’s accompanying appendix as a PDF.

Federal Rules of Civil Procedure 16 and 26(a) (1) (A) provide powerful tools that can assist courts in narrowing claims, creating efficient schedules, and understanding parties’ disputes — but only if they are used to their full potential.1 Used consistently, these rules can prevent abusive litigation conduct, promote efficient resolution, and reduce discovery expenses.2 Despite these substantial benefits, empirical research shows that most judges are not taking full advantage of these rules.3 Moreover, courts have refused to impose Rule 37(c)’s automatic sanction for 26(a)(1)(A) violations.4

Two common practices tend to reduce the effectiveness of Rule 26(a)(1)(A):

  • requesting and adopting — without the required conference and substantive discussion — pro forma schedules from counsel, and
  • failing to emphasize, during the Rule 16 and 26(a)(1)(A) conference, the severe consequences of noncompliance with 26(a)(1)(A)’s disclosure requirements.

The effectiveness of Rules 16 and 26(a)(1)(A) is sometimes further weakened by referring the 16/26(a)(1)(A) conference to a magistrate judge who, as a practical and statutory matter, lacks the authority to ultimately impose the sanctions that are designed to make Rules 16 and 26(a)(1)(A) effective.5

By consistently enforcing these sometimes marginalized rules through a substantive Rule 16/Rule 26(a)(1)(A) conference, courts can improve the disposition rates of civil cases on their dockets and assist litigants in resolving their cases efficiently.

The Need for Early Disclosure

The purpose of the Federal Rules of Civil Procedure is “to secure the just, speedy, and inexpensive determination of every action and proceeding.”6 The American discovery system, however, has grown unwieldy, expensive, and painful to parties.7 In a survey of 1,490 attorneys, the American College of Trial Lawyers Task Force on Discovery found that 81 percent regarded the civil justice system as too expensive, 71 percent felt discovery was used as a tool to force settlement, and 68 percent viewed the Federal Rules as “not conducive to the goal of Rule 1.”8 A survey of 3,300 attorneys by the American Bar Association found that discovery was “the primary cause for cost and delay” and “can become an end in itself.”9

With trials declining,10 pretrial discovery and trial by paper11 can lead to abusive conduct and efforts to use discovery expenses to force settlements.12 Delays in a civil justice system with overcrowded dockets also reduce access to justice and compromise equitable resolution.13 Despite these challenges, the application of Rule 16 — which by its terms empowers judges to assist in the judicial management process — has come to “be perceived as a ‘mere exchange of legalistic contentions without any real analysis on the particular case,’ accomplishing ‘nothing but a formal agreement on minutiae.’”14

A number of scholars and practitioners have proposed remedies for the cost and arduousness of modern discovery.15 Others theorize that the incentives for bad behavior are baked into the American civil litigation system.16 Regardless, using a uniform Rule 16 scheduling conference for each civil case — and enforcing Rule 26(a)(1)(A)’s disclosure requirements — could assist in mitigating many of the worst excesses of discovery abuse while facilitating judicial case and docket management.

Early Case Evaluation Tools

Federal Rules of Civil Procedure 16 and 26(a) work together to create a more efficient early disclosure process. They also provide a mechanism for early, substantive, robust case evaluation and, where possible, elimination of potential issues in a case before the court. Rule 26(a)(1)(A) focuses on materials that the party “may use to support its claims or defenses.”17 Rule 16 provides a mechanism for organizing matters before the court and eliminating frivolous claims or defenses as well as “obtaining admissions and stipulations.”18 The rules are complementary but distinct: Rule 16 lays out the lawyers’ role in applying the law to known facts, and Rule 26(a)(1)(A) encourages early development and articulation of the factual basis (or lack thereof) for the parties’ claims and defenses.

Rule 16 states:

. . . in any action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences [to] . . . [ ] expedit[e] disposition of the action; [ ] establish [ ] early and continuing control so that the case will not be protracted because of lack of management; [ ] discourag[e] wasteful pretrial activities; [ ] improv[e] the quality of the trial through more thorough preparation; and [ ] facilitat[e] settlement.19

Rule 16(c)(1) provides that “a party must authorize at least one of its attorneys to make stipulations and admissions about all matters that can be reasonably anticipated for discussion at a pre-trial conference . . . .”20

Rule 16(c)(2) specifies that “reasonably anticipated” matters include formulating and simplifying the issues, eliminating frivolous claims or defenses, obtaining admissions and stipulations about facts and documents to avoid unnecessary proof, ruling in advance on the admissibility of evidence, and “facilitating in other ways the just, speedy, and inexpensive disposition of the action.”21 Rule 16(c)(2) and its subparts require both parties to have a thorough understanding of the facts and actual legal theories of their case prior to the scheduling conference.22 Rule 16, properly used, also allows for the resolution of undisputed factual and legal issues at the outset of a case, without expensive and time-consuming briefings.23

Rule 26(a) similarly requires a cogent understanding of parties’ positions and the case at the time of initial disclosures. Rule 26(a) is designed to provide a procedure for early initial disclosures “without awaiting a discovery request.”24 Under Rule 26(a)(1), a party through counsel should be required to provide an early and thorough disclosure of documents (including electronically stored information) and persons “that the disclosing party may use to support its claims and defenses.”25 The disclosures required under Rule 26 include “the identification of individuals likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.”26 Rule 26(a)(1)(A)(ii) covers the disclosure of documents, electronically stored information, and tangible things.27

Rule 26(a)(1)(iii) specifically requires the disclosure of “a computation of each category of damages claimed by the disclosing party — who must also make available for inspection and copying . . . the documents or other evidentiary material . . . on which each computation is based, including materials bearing on the nature and extent of injuries suffered.”28 Rule 26(a)(1)(iv) requires production of insurance agreements “under which an insurance business may be liable to satisfy all or part of a potential judgment or to indemnify or reimburse for payments made to satisfy the judgment.”29

The Federal Rules are designed to make Rule 26(a) mandatory, and under a plain reading of Rule 37(c)(1), undisclosed materials may not be used as evidence in trial or other proceedings.30

Reimagining Scheduling Conferences

Experience shows that Rules 16 and 26(a)(1)(A) can be effectively explained by the judge and utilized in discussion with the parties’ counsel in simple and time-saving telephonic scheduling conferences. At these conferences, which typically take 30 minutes to an hour,31 parties are encouraged to describe their views of the facts and discuss the proposed scheduling order. Careful questioning by the judge at the telephonic scheduling conference assists in eliciting stipulations of facts and identifying key areas of agreement or disagreement. In one recent case, for example, the need for substantive motions related to a complex choice-of-law issue was obviated when questioning of counsel revealed that, contrary to the position articulated in the complaint and answer, the parties agreed on the applicable state law. Judges can also use the telephonic scheduling conference to ascertain the need for (or futility of) alternative dispute resolution (ADR) or mediation and to tailor schedules to the individualized needs of the case and parties. The transcript of the telephonic scheduling conference memorializes stipulations made, which can be helpful at the summary judgment stage, or when parties prepare the pretrial order.

For each case, the court also requires completion of a “proportionality form” several days prior to the telephonic scheduling conference.32 This form can greatly assist the judicial officer in both assessing the potential for discovery abuse and improving the focus of the court and counsel at the conference. A sample form can be found in the Appendix, available here.

In more complex cases, an initial Rule 16/Rule 26(a)(1)(A) conference and a follow-up conference may be useful. In relatively simple cases, requiring 26(A)(1)(A)(ii) document production (as opposed to mere categorization and location) is a particularly useful tool. Substantive preparation by the parties and the court will bear meaningful results — unprepared counsel should be rebooked for a thorough telephonic scheduling conference in seven to 14 days.33 This rescheduling is especially useful with attorneys without previous substantive telephonic scheduling conference experience. Attorneys typically adjust quickly to use of telephonic scheduling conferences and prepare accordingly.

In addition to providing the judge with an understanding of parties’ positions, a telephonic scheduling conference34 provides an opportunity to impress on parties the importance of compliance with Rule 26(a)(1)(A)’s disclosure requirements. This not only encourages — and indeed requires — comprehensive early disclosure but also helps prevent claims of unfair surprise if a party inadvertently fails to disclose evidence, and opposing counsel objects at trial, potentially leaving the nondisclosing party without critical or necessary evidence.35

Facilitating Judicial Case Management

As California Superior Court Judges Carolyn B. Kuhl and William F. Highberger pointed out in a 2023 Judicature article on the findings of the Conferences of Chief Justices’ Civil Justice Initiative, case management has been “embraced as a technique for ‘relieving the congested condition of trial calendars.’”36 Judges Kuhl and Highberger also noted that while “setting deadlines is an incomplete approach to case management[,]” if done correctly, “case management is the antidote to abusive litigation tactics.”37 While active judicial case management was initially treated with suspicion in the Federal Rules,38 “there is no substitute for managerial judges.”39 In the 2015 Year-End Report on the Federal Judiciary, Chief Justice John G. Roberts Jr. noted that, especially after the 2015 Amendments to the Civil Rules:

[j]udges must be willing to take on a stewardship role, managing their cases from the outset rather than allowing parties alone to dictate the scope of discovery and the pace of litigation. Faced with crushing dockets, judges can be tempted to postpone engagement in pretrial activities. Experience has shown, however, that judges who are knowledgeable, actively engaged, and accessible early in the process are far more effective in resolving cases fairly and efficiently, because they can identify the critical issues, determine the appropriate breadth of discovery, and curtail dilatory tactics, gamesmanship, and procedural posturing.40

This stewardship goal is well-served by an early Rule 16/Rule 26(a)(1)(A) conference. Further, the strategies articulated by Judges Kuhl and Highberger, including tailoring calendar events “that are likely to meaningfully advance the goals of litigation[,]” “giving priority to case activity that reduces uncertainty as to core issues[,]” and “using differential case management . . . including triag[ing] cases by readily determinable characteristics[,]” are all made practicable through the use of substantive Rule 16 conferences.41

Moreover, using telephonic scheduling conferences to ask for a brief articulation of a case’s critical facts permits meaningful sorting into case management tracks, even where pleadings include a buried lede. Especially in fact-intensive pleadings with multiple causes of action, the most important or complex claim may appear as stock language or argument in the alternative. In several cases in the past year, seemingly routine administrative reviews or insurance benefit denial disputes took on complex dimensions that — while sufficiently pled — would not have indicated the need for management as a complex case without parties’ discussion at a Rule 16/Rule 26(a)(1)(A) conference. By discussing the case with the parties in a Rule 16 conference, case management strategies can be meaningfully applied. Without an early conference, cases may be shoehorned into “complex” or “standard” case management tracks that fit poorly and increase costs.42 Further, as new technologies allow for increased streamlining of case administration, Rule 16 conferences provide an opportunity for personalization and humanization of the process.43

Eliminating Frivolous Claims

Rule 16 allows for and encourages attorneys to eliminate at an early stage insufficiently supported — often mostly theoretical — issues. Remember, Rule 16 anticipates the application of legal principles to the agreed-upon facts or facts that are stipulated or incapable of being disputed. Attorneys will often narrow the issues from those presented in the complaint or answer and eliminate unnecessary discovery — often after appropriate judicial inquiry or on their own — to avoid wasting their time and the court’s time.

The Rule 16/Rule 26(a)(1)(A) conference prevents counsel from using courts as a screening or research device (under the Federal Rules and canons of attorney ethics, counsel should have already performed that function), clogging the court systems with unsupported arguments. Claims that cannot pass Rule 12 muster or are destined to fail later under a Rule 56 motion can be reduced, if not eliminated, by serious substantive discussion at Rule 16/Rule 26(a)(1)(A) conferences, thus reducing the cost of litigation by avoiding briefs on obviously deficient claims or defenses.

Moreover, without Rule 26 (and, to a lesser extent, Rule 11), a more resourced party could wield two self-contradictory arguments as a sword of Damocles to prevent early resolution or attempt to force their lesser-resourced opponent into a favorable settlement. Take the example of a Title VII employment discrimination claim in which the defendant asserts, in their answer, a copy-paste smorgasbord of defenses, including both that the plaintiff was not replaced and that the plaintiff was replaced by an individual with the same protected characteristic. Logically, discovery cannot demonstrate that both are true. The Rule 16/Rule 26(a)(1)(A) conference allows a judge, through questioning, to determine whether the case uniquely allows for this Schrödinger’s defense,44 or whether (more likely) the defendant must choose which defense to assert. The rules require counsel to be prepared to admit and/or stipulate to facts, and a conference can enforce this proposition, thus simplifying and/or eliminating issues that would lead to unnecessary discovery and motion practice.

Just as “pretrial procedures make a trial less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest possible extent,”45 the interaction of Rules 16 and 26(a), applied in a telephonic scheduling conference, gives counsel and the parties insight into the scope of the claims and defenses asserted and their factual bases. To be clear, the rules do not require attorneys to produce every item on which they rely, but rather to provide their counterparts with the propositions they intend to prove and the materials to which they have access (i.e., “in their care, custody, or control”) and on which they may base their claims or defenses.46 Due diligence is required by counsel and the parties, and failure to exercise due diligence should routinely result in the applicable Rule 37 exclusion sanction. In many ways, the Rule 16/Rule 26(a) interplay acts as a way for parties to verify that their opponents comply with Rule 11’s requirements that pleadings be based on claims and defenses warranted by existing law or credible argument and supported or likely to be supported by existing evidence in their care, custody, or control.47

Preventing Abusive Discovery Conduct

As detailed above, the operation of Rules 16 and 26(a)(1)(A), when actively encouraged and enforced by judges, prevents attorneys from staking out unsupported arguments in the alternative. Eliminating frivolous claims and defenses and identifying undisputed facts in the telephonic scheduling conference reduce the cost of discovery on those facts and claims. This also avoids the pitfalls of early requests for admission.48

Rule 26(a)(1)(A)’s disclosure requirements should also be used to compel defendants to produce the material within their control on which their defenses may rely. By requiring parties to produce documents themselves, rather than lists of documents, parties avoid the expenses associated with drafting, litigating, and answering discovery requests for materials that both know must exist for a claim or defense to be meritorious.49

While Rule 26’s disclosure requirements do not prevent all forms of abusive discovery or litigation conduct (for example, overproduction of documents), they can provide one tool for ensuring fairness between the parties. Further, early resolution of key discovery disputes and clarification of the scope of discovery can rein in litigants’ worst instincts.50

Assisting Equitable Early Resolution of Claims

Early disclosure requirements and Rule 16 conferences can also assist in early and fair resolution of claims through settlement.51 Take, for example, two hypothetical premises liability cases. In one, a shopper is injured when a grocery store sign falls on his head, leading to severe brain damage and loss of work. In another, a YouTube prankster scales grocery store shelves, swings from the grocery store sign, which falls and hits him, and, aside from a few bruises, is uninjured. Both potential plaintiffs reach out to overworked attorneys seeking representation on a contingency fee basis. Both cases eventually lead to a complaint that asserts plaintiffs were shopping and injured by a falling grocery store sign. Both cases allege $1 million in damages for compensatory and punitive damages.

Without a substantive Rule 16 conference and enforcement of Rule 26(a)(1)(A) required disclosures, both cases might be treated the same by the parties: a long discovery process, perhaps interspersed by dispositive motions. An untailored early settlement offer may undercompensate the injured plaintiff — who may still accept, especially if they are unemployed and worried about a long litigation process — but would overcompensate the uninjured prankster and potentially encourage future frivolous lawsuits. Enforcing the requirements of Rules 16 and 26(a)(1)(A) allows parties to tailor their discovery processes and settlement negotiations to the facts of the case and can push attorneys to fully investigate — and have serious discussions with their clients about — the merits of their claims or defenses.

Improving Docket and Schedule Management

That is not to say that the interaction of Rules 16 and 26(a)(1)(A) promotes settlement in every case. Indeed, in many cases a Rule 16 conference makes clear that, absent a settlement, a case will almost certainly go to trial. In these cases — which often include sexual harassment claims without independent witnesses, “bet the farm” patent litigation, and some civil rights cases — the court can design a scheduling order structured to expedite the time to trial. Substantive Rule 16 conferences can also allow tailoring of scheduling orders to avoid continuances — for example, by providing for immediate Rule 12 or early Rule 56 motions, or by scheduling a sufficient but early deadline time for motions in limine or Daubert hearings for cases in which more complex evidentiary issues are anticipated.

Substantive Rule 16/26(a)(1)(A) conferences can also allow courts an early view into parties’ working relationship. As a procedural and efficiency matter, this knowledge allows judges to determine whether mediation or ADR would be advisable and avoid scheduling it when unnecessary, unhelpful, or unjustifiably expensive. A settlement deadline may also be appropriate for experienced and analytical attorneys who have adequately evaluated the liability question and are primarily focused on damages assessment. To these lawyers, unnecessary private mediation only adds time and expense.

Finally, telephonic scheduling conferences allow an early view into idiosyncratic elements of case management. For example, identifying cases likely to have high levels of pretrial publicity allows judges to proactively address heightened courtroom security needs and other concerns. Early and detailed planning in these cases is especially vital to ensuring smooth administration.

Using Magistrate Judges Effectively

As discussed at the outset, the use of magistrate judges to conduct telephonic scheduling conferences has significant downsides. First, magistrate judges lack the authority in most cases to impose Rule 37 sanctions.52 While magistrate judges can assist in identifying and discouraging unsupported theories, the questioning and opinion of the district judge — who will ultimately dismiss the claim or defense or impose a Rule 37 sanction — has greater heft. Similarly, while magistrate judges can provide substantive summaries of telephonic scheduling conference, these summaries can neither capture the full nuance of a conference nor realize the full benefits of early engagement by the presiding judge. This is especially true in districts where the magistrate judge may only see parties for the telephonic scheduling conference.

For judges who cannot accommodate telephonic scheduling conferences, the use of magistrate judges accompanied by enforcement of Rules 16 and 26(a)(1)(A) can be effective. Strongly worded local rules or court policies emphasizing compliance with Rules 16 and 26(a)(1)(A) can help, but they still do not realize all of the benefits derived from an Article III judge-led Rule 16/Rule 26(a)(1)(A) conference. However, while delegating telephonic scheduling conferences to magistrate judges may save time in the short term, having a district judge lead them yields greater long-term efficiency.

Conclusion

While a one-hour scheduling conference and preparation time may seem unwieldy to courts with crowded dockets, the time savings through deconfliction, understanding of key issues, and early stipulations is invaluable. In a federal system with increasingly open pleading standards, Rule 16 conferences and enforcement of Rule 26(a) provide a near costless way to assist in judicial efficiency and docket management, while also providing attorneys with incentives to fully investigate their claims and defenses, hone their positions, and drop frivolous issues.

JON PHIPPS MCCALLA has served as district judge (Western District of Tennessee) since 1992. He served as chief judge from 2008 until 2013, when he took senior status. A Vanderbilt Law graduate, he clerked for Chief District Judge Bailey Brown and was in private practice for 17 years. He has conducted hundreds of jury trials.

  1. Without the assistance of my law clerk, Elodie O. Currier, the existence of the extensive endnotes and able citations would not have been possible. Her observation of numerous Rule 16/Rule 26 conferences contributed to the articulation of several insights relevant to the functioning and interplay of Rule 1, Rule 11, Rule 16, Rule 26, and Rule 37 as reflected in this article. Thanks also to Magistrate Judge Annie Christoff for her helpful comments. Nothing in this piece reflects in any way on any pending or future case that may come before the court.
  2. A survey of mandatory disclosure that went beyond the strictures of Rule 26(a)(1) in the District of Arizona and Northern District of Illinois showed that cases in the pilot project had shorter times to disposition, and attorneys reviewed the pilot positively. See Mandatory Initial Discovery Pilot Project Model Standing Order, Fed. Jud. Ctr. (Nov. 15, 2021), https://www.fjc.gov/content/320224/midpp-standing-order (explaining the project); Emery G. Lee III & Jason A. Cantone, Mandatory Initial Discovery Pilot Final Report Prepared for the Judicial Conference Advisory Committee on Civil Rules ii (2022) (showing attorney positive reviews and shorter disposition times). The benefits of Rule 26(a) and Rule 16, however, can be fulfilled even without the broader scope of the pilot project.
  3. See Paul W. Grimm & David S. Yellin, A Pragmatic Approach to Discovery Reform: How Small Changes Can Make a Big Difference in Civil Discovery, 64 S.C. L. Rev. 495, 499 n.39 (2013) (citing Rebecca M. Hamburg & Matthew C. Kolski, Nat’l Emp’t Lawyers Ass’n, Summary of Results of Federal Judicial Survey of NELA Members, Fall 2009 at 7 (2010) [hereinafter Hamburg & Kolski] (two-thirds of judges do not invoke Rule 26 on their own)). This flies in the face of the 2015 Rule Amendments, which emphasized through Committee Notes the link between the Rules’ proportionality-focused amendments and Rule 16. Fed. R. Civ. P. 26 advisory committee’s note to 2015 amendment (“The present amendment again reflects the need for continuing and close judicial involvement in the cases that do not yield readily to the ideal of effective party management.”).
  4. See Fed. R. Civ. P. 37(c) (“If a party fails to provide information or identify a witness as required by 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless that failure was substantially justified or is harmless. In addition, . . . the court, on motion and after giving an opportunity to be heard [ ] may order payment of reasonable expenses, including attorney’s fees, caused by the failure; [ ] may inform the jury of the party’s failure; and [ ] may impose other appropriate sanctions.” (emphasis added); but see Grimm & Yellin, supra note 3, at 506 (“[M]any courts have refused to impose an automatic sanction and have simply refused discovery violations”).
  5. Some courts make extensive use of magistrate judges in the scheduling process. The process only works efficiently if the district judge supports the strict Rule 16 and Rule 26 disclosure requirements imposed by the magistrate judge.
  6. Fed. R. Civ. P. 1.
  7. See Gordon W. Netzorg & Tobin B. Kern, Proportional Discovery: Making it the Norm, Rather than the Exception, 87 Denv. U. L. Rev. 513, 515 (2010) (“Judges and litigants now regularly describe modern discovery as a ‘morass,’ ‘nightmare’ ‘quagmire,’ ‘monstrosity,’ and ‘fiasco’”); Frank H. Easterbrook, Discovery as Abuse, 69 B.U. L. Rev. 635, 635 (1989) (citing John J. Seatar, The Barrister and the Bomb: The Dynamics of Cooperation, Nuclear Deterrence, and Discovery Abuse, 69 B.U. L. Rev. 569 (1994)) (“That discovery is war comes as no surprise.”); see also Erica Gorga & Michael Halberstam, Litigation Discovery and Corporate Governance: The Missing Story about the “Genius of American Corporate Law,” 63 Emory L.J. 1383 (2014) (characterizing discovery as such a painful and invasive proposition that it has changed corporate decision-making processes).
  8. Am. Coll. of Trial Lawyers & Inst. for the Advancement of the Am. Legal Sys., Final Report of the Joint Project of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the Legal System 2 (2009), available at https://www.uscourts.gov/sites/default/files/actl_task_force_iaals_report_to_the_2010_civil_litigation_conference.pdf.
  9. ABA Section of Litigation, Member Survey on Civil Practice: Detailed Report, 5, 6, available at https://www.uscourts.gov/sites/default/files/aba_section_of_litigation_survey_on_civil_practice_0.pdf; see also John H. Beisner, Discovering a Better Way: The Need for Effective Civil Litigation Reform, 60 Duke L.J. 547, 549 (2010) (citing H.R. Rep. No. 104-369 at 37 (1995) (Conf. Rep.)) (“By some estimates, discovery costs now comprise between 50 and 90 percent of the total litigation costs in a case.”); Jay Tidmarsh, The Litigation Budget, 68 Vand. L. Rev. 855, 861–77 (2015) (incentives for engaging in abusive conduct).
  10. Margie Allsbrook, Untangling Unreliable Citations, 37 Georgetown J. of Legal Ethics 415, 430 (2024). (“As trials have become increasingly rare, discovery practice has become increasingly important, and the rules that govern pre-trial litigation have become dizzyingly complex.”)
  11. See Grimm & Yellin, supra note 3, at 502 (quoting Hamburg & Kolski, supra note 3, at 7 (“trial by paper is to a large extent supplanting trial by jury in our civil justice system”)).
  12. See Grimm & Yellin, supra note 3, at 525 (“The truth is that lawyers and clients avoid cooperating during discovery . . . because they want to make the discovery process as expensive and punitive as possible for their adversary, in order to force a settlement to end the costs rather than having the case decided on their merits”) (citing Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 360–61 (D. Md. 2008)).
  13. Id. at 505 (federal district judges’ delays in deciding motions, especially pretrial motions “can be particularly harmful”).
  14. Carolyn B. Kuhl & William F. Highberger, Toward Fairer, Quicker, Cheaper Litigation: A Unified Theory of Civil Case Management, 107 Judicature 34, 36 (2023) (quoting Fed. R. Civ. P. 16 advisory committee’s note (1937)) [hereinafter Kuhl & Highberger].
  15. See, e.g., Grimm & Yellin, supra note 3; Netzorg & Kern, supra note 7; Alexandra D. Lahav, A Proposal to End Discovery Abuse, 71 Vand. L. Rev. 2037, 2045 (2018).
  16. See, e.g., Grimm & Yellin, supra note 3, at 528–30 (discussing pessimistic views of the incentives for discovery misuse and summarizing them as stating that “it would appear that there is something in the DNA of the American civil justice system that resists cooperation during discovery”).
  17. Fed. R. Civ. P. 26(a)(1)(A).
  18. Fed. R. Civ. P. 16(c)(2)(C).
  19. Fed. R. Civ. P. 16(a)(1-5).
  20. Fed. R. Civ. P. 16(c)(1) (emphasis added).
  21. Fed. R. Civ. P. 16(c)(2)(A-D).
  22. See Fed. R. Civ. P. 16(c)(1-2) (requiring a represented party to authorize “stipulations and admissions about all matters that can reasonably be anticipated for discussion at a pretrial conference” and allowing the court broad discretion to consider “frivolous claims or defenses”).
  23. Interestingly, “adopting a rule that encourages informal conferences with the court . . . especially when, as is so often the case, a telephone or personal conference with the judge will resolve the issues without the need for briefing” has been a proposed solution to the escalating cost of discovery since at least 2013. See Grimm & Yellin, supra note 3, at 519.
  24. Fed. R. Civ. P. 26(a).
  25. Fed. R. Civ. P. 26(a)(1)(A).
  26. Fed. R. Civ. P. 26(a)(1)(A) (emphasis added).
  27. Fed. R. Civ. P. 26(a)(1)(A)(i).
  28. Fed. R. Civ. P. 26(a)(1)(A)(iii).
  29. Fed. R. Civ. P. 26(a)(1)(A)(iv).
  30. Fed. R. Civ. P. 37(c)(1).
  31. A Federal Judicial Center survey sent to almost 10,000 attorneys in civil cases found that 73 percent of respondents reported that a Rule 26(f) meeting met for 30 minutes or less. Are ‘Drive By’ Rule 26(f) Meetings the Norm?, U.S. Cts. (Jun. 1, 2012), https://www.uscourts.gov/data-news/judiciary-news/2012/06/01/are-drive-rule-26f-meetings-norm.
  32. See Fed. R. Civ. P. 26(b) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.”).
  33. Cf. Best Practices: What to do with the Unprepared Attorney, In. Ct. Times, (Apr. 13, 2011), available at https://times.courts.in.gov/2011/04/13/best-practices-what-to-do-with-the-unprepared-attorney/ (“Sometimes when attorneys begin trying the case, the judge realizes that one (or both) does not understand the burden of proof or what standard the judge will use to make a finding. That is when the judge wonders if the hearing is going to be a waste of time and effort. If a case is scheduled for one-half day or more, there should be a pre-trial conference date for the attorneys only to meet with the judge to discuss the case.”).
  34. While these conferences certainly could be conducted in person, the “balance between justice, efficiency, and cost” embodied by Federal Rule of Civil Procedure 1 favors using video or telephone conferencing for these conferences. See Lee Rosenthal, Scott Dodson & Christopher J. Dodson, The Zooming of Federal Civil Litigation, 104 Judicature 13, 13 (2020) (arguing for such conferencing at the onset of the COVID-19 pandemic).
  35. See Fed. R. Civ. P. 37(c) (providing for sanctions or prohibition on using evidence upon violation of Rule 26(a) or 26(e)).
  36. Kuhl & Highberger, supra note 14, at 36.
  37. Id.
  38. Id. at 35 (citing Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909, 975–76 (1987); Steven S. Gensler, Judicial Case Management: Caught in the Crossfire, 60 Duke L.J. 669, 678–79, 721–22 (2010)). But see Fed. R. Civ. P. 16 (as adopted by the Supreme Court in 1937).
  39. Robert M. Dow Jr., Managerial Judges: The Long View (Sidebar), 107 Judicature 45, 45 (2023); see also Civil Justice Reform Act of 1990, 28 U.S.C. § 471; FED. R. CIV. P. 16 (as amended in 1983); Chief Justice John G. Roberts Jr., 2015 Year-End Report on the Federal Judiciary 10–11; Lee H. Rosenthal, From Rules of Procedure to How Lawyers Litigate: ‘Twixt the Cup and the Lip, 87 Denv. U. L. Rev. 227, 231–32 (2010).
  40. Chief Justice John G. Roberts Jr., 2015 Year-End Report on the Federal Judiciary 10–11 (emphasis in original) [hereinafter Roberts Report].
  41. Id. at 37–39.
  42. Compare Kuhl & Highberger, supra note 14, at 40–41 (“Toolkit for Complex Case Management”) with id. at 40 (“Toolkit for Simple, Repetitive Litigation”).
  43. Roberts Report, supra note 40, at 5 (AI “risks dehumanizing the law.”); id. at 6 (AI will assist in moving toward Rule 1’s goals).
  44. “Schrödinger’s cat” is a quantum mechanics thought experiment in which a cat in a box can be considered both dead and alive, which is used to illustrate the paradoxical nature of unobserved particles existing in a superposition of states. Used, as here, as a figure of speech, it refers to a situation in which two opposite positions can be considered simultaneously possible because critical information is missing or in disagreement.
  45. United States v. Proctor & Gamble Co., 356 U.S. 677, 682 (1958).
  46. Fed. R. Civ. P. 26(a)(1)(A)(i); Fed. R. Civ. P. 34(a)(1).
  47. See Fed. R. Civ. P. 11(b)(1-4).
  48. See generally Colin Flora, It’s a Trap! The Ethical Dark Side of Requests for Admission, 8 St. Mary’s J. Legal Malpractice & Ethics 2 (2018) (arguing that requests for admission are often abused, especially if served along with the complaint, and can lead to increased costs).
  49. See Grimm & Yellin, supra note 3, at 525 (“The truth is that lawyers and clients avoid cooperating with their adversary during discovery — despite the fact that it is in their clear interest to do so — for a variety of inadequate and unconvincing reasons.”
  50. Flora, supra note 48, at 5 (citing W. Bradley Wendell, Rediscovery Discovery Ethics, 79 Marq. L. Rev. 895, 901 (1996) (“[T]he dearth of guidance for a process largely controlled by litigants [is identified as] a leading factor in discovery abuse.”).
  51. While the erosion of the jury trial’s role in the American system of jurisprudence is not an unequivocal good, it is a reality of the current system, and, to the extent that settlements represent the majority of case dispositions, ensuring their fairness is vital to ensuring the just working of the judicial system. See Robert P. Burns, What Will We Lose if the Trial Vanishes?, 37 Ohio N.U. L. Rev. 575 (2011); Hon. William G. Young, An Open Letter to U.S. District Judges, 50 Fed. Law. (2003).
  52. If Rule 37 sanctions are dispositive, the magistrate judge generally cannot impose them. See Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 5 (1st Cir. 1999) (holding such motions “ordinarily should be classified as nondispositive). But see Kiobel v. Millson, 592 F.3d 78, 97–98 (2d Cir. 2010) (finding that Rule 37 sanctions were nondispositive matters). Some courts make extensive use of magistrate judges in the scheduling process. The process only works efficiently if the district judge supports the strict Rule 16 and Rule 26 disclosure requirements imposed by the magistrate judge.

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