Rule 16

Resolving Daubert Challenges

Rule 16 Conferences

At the outset of most civil actions in federal court, the judge is required to convene a scheduling conference. Under Fed. R. Civ. P. 16, district courts enjoy very wide discretion in setting schedules for pretrial proceedings, including expert-related discovery and motion practice. Indeed, Rule 16(c)(4) expressly authorizes the trial court to consider "limitations or restrictions on the use of testimony under Rule 702 of the Federal Rules of Evidence." Once a Rule 16 scheduling order is entered, it may not be modified except by the court upon a showing of good cause.

Counsel, therefore, should enter into the Rule 16 process with Daubert issues firmly in view. It may often seem premature to address issues of expert testimony in detail at the first pretrial conference. But counsel should at least be alert for proposals, from the court or the adversary, that may work to their prejudice, and should consider taking the initiative and suggesting procedural approaches that counsel may find affirmatively congenial. Plaintiffs' counsel, in particular, often shy away from bringing up Daubert issues, and sometimes this reticence is justified, lest counsel be perceived as acquiescing in attempts to turn Daubert proceedings into unduly sacramental occasions. The time is past, however, when it could be realistically hoped that the adversary might never consider filing Daubert motions unless reminded of the possibility. And Daubert practice is sufficiently ubiquitous in federal court that acknowledging its potential occurrence will not be regarded as a confession of weakness.

It is counsel's job to get the Rule 16 process rolling. Under Fed. R. Civ. P. 26(f), counsel for all parties must meet prior to the scheduling conference and attempt in good faith to develop an agreed discovery plan. Rule 26(f) provides that no discovery may be served prior to this meeting, except as otherwise authorized by the rules or by local rule or judicial order.

Rule 16