GUIDELINES FOR PREPARATION OF THE CASE CONFERENCE REPORT1. There can be no formal discovery done prior to the filingof the Case Conference Report without an Order from the DiscoveryCommissioner or Judge.2. Follow the Case Conference Report form promulgated by theoffice of the Discovery Commissioner. Almost all reports should bejoint; if one is not, a red flag is raised, indicating that one orboth parties are not cooperating.3. The Early Case Conference and the Case Conference Reportare not meant to be mere procedural paperwork stops along thelitigation road of a civil case. The purpose of the rules is toforce counsel to make a reasonable investigation of their casesprior to filing and to prepare for and participate in an Early CaseConference after the Answer or Answers have been filed. The rulesrequire counsel to think about their case at an early stage in thelitigation, get the case settled if possible, and if furtherlitigation is required, the case will be off to a good startbecause of the exchange of large amounts of information at theEarly Case Conference or shortly thereafter. This takes the placeof the traditional course of formal discovery.4. In order to demonstrate compliance with the rules thesection of the report dealing with proceedings prior to the filingof the report must be completed. Stipulations to extend time tohold the Early Case Conference should be noted or counsel will beexposed to sanctions for disregarding the time limitations ofN.R.C.P. 16.1.5. The brief description called for in Part II of the reportrequires more than a regurgitation of the allegations of theinitial pleadings. The description, including that of the claimsand defenses, must be specific in that some facts must be stated togive the Judge and/or Discovery Commissioner insight into the case.The rules of pleading will no longer tolerate either frivolousclaims or frivolous defenses.6. In regard to documents provided, identify those documentsproduced at the Early Case Conference with as much specificity aspossible, so in the event a problem comes up as to the productionof a document or other item at the time of trial, reference can bemade to the report for a clear determination as to what the partiesproduced or were responsible to produce. Such information as datesand the number of pages of a particular item should prevent anyproblems. Numbering the pages of large sets of documents can savetime in report preparation by obviating the need for furtherdescription of the documents. Also, when documents or other itemsare to be produced after the conference, please note a cut-off datefor the production of those items. When that is done, it will thenbe easy for the requesting party to seek relief from the DiscoveryCommissioner for materials not supplied as promised. If suchdocuments are not listed in the report and provided to opposingcounsel at the Early Case Conference or as soon thereafter aspossible, such materials are in danger of being excluded at trial.7. Section IV of the report only requires completion when oneparty refuses production of materials requested by another. Theparty refusing must state his reasons; this may often lead to adiscovery dispute which would be handled by the DiscoveryCommissioner.8. In addition to the names and addresses of your witnessesyou must also give a brief description of the subject matter of thetestimony for each one. Once again, specific facts or opinions towhich each witness will testify are required and not simply astatement that witness Jones will testify as to liability andwitness Smith will testify as to damages. This will help the Courthave a better picture of the contemplated testimony and will helpthe parties narrow the issues prior to the time of trial, as wellas demonstrate their preparedness pursuant to the mandate ofN.R.C.P. 16.1.9. The additional discovery plan should be just that, a plan,not a statement which says the parties will send outinterrogatories and take the depositions of all witnesses and beready in one year. There should be no need for general sets ofinterrogatories and broad requests for production. All earlydiscovery should be taken care of at the Early Case Conference.The discovery plan should be tailored to the individual case,taking into consideration the amount of money at stake, thecomplexity of the issues, location and types of witnesses, as wellas the pressing needs of your clients. It is only after thinkingabout, and detailing how and when you are going to schedulediscovery, that you will arrive at that workable plan and areasonable time frame in which you can complete your discovery.Your estimate for the time required for discovery will bemeaningful and your case will be placed upon a stacked calendar inaccordance with the contemplated time for discovery. Alwaysindicate the estimated time for trial of the matter, in the eventthe case should go that far.10. Unresolved discovery problems should be set forth insection VII. These problems can be raised for resolution by theDiscovery Commissioner by simply checking the line on the front ofthe Case Conference Report form which requests a dispute resolutionconference. When such a conference is requested, you will receivea notice to appear from the Commissioner’s office. However, if theparties feel they can work out the problem, they may not wish torequest dispute resolution. If later the problem does not resolveitself, either side may set a “motion to resolve dispute” beforethe Commissioner. All discovery disputes are first heard by theDiscovery Commissioner.11. The section on stipulations is simply a place to writedown any significant agreements the parties may reach. This is aplace to note how you may have agreed to clean up the pleadings toconform to Rule 11 or to list material facts which are not indispute. It is a place to put agreements on routine matters anddemonstrate you have considered your case and are not playingdiscovery “games.” This section of the report can be especiallyhelpful in detailing partial agreements in divorce cases.12. Whereas it is important to discuss settlement and toindicate the nature of settlement discussions in your CaseConference Report, refrain from putting in figures as to where theparties stand. This is not so much a concern where a jury trialhas been demanded, but it would obviously cause problems in theevent the case were to go to trial and the Judge were the trier offact. If the Court is ever able to work out arrangements for aseparate settlement Judge or settlement conference by the DiscoveryCommissioner or if the parties can agree to anyone else hearingsettlement negotiations, then the nuts and bolts of “how much”would be perfectly appropriate for a report to that person. Untilthen, however, please keep the settlement discussion materialgeneral, yet informative.13. Do not forget the Rule requires the parties tosupplement, but need not repeat, the contents of prior reportsafter any subsequent case conference. Also, the parties mustsupplement the report with any new information discovered after thefiling of the original report, particularly witnesses and documents.
GUIDELINES FOR PREPARATION OF THE CASE REPORT
October 16th, 2022