Caution About Case Management Orders “For Discovery Only.”

Rule 16 scheduling orders “control” further proceedings in a case. Parties may stipulate to Rule 16 limits on discovery, thinking that the final pretrial order will become the governing document at trial. For example, counsel may agree to limits on depositions, which would be unpalatable during trial. Deposition strategy – what is asked then and what is saved to ask at trial – enables these Rule 16 stipulations. But without all the caveats made express, presuming the effect of the stipulated limits can bite you, as indicated in Judge Whyte’s ruling in the consolidated Rambus v. Hynix cases.The parties agreed in a Rule 16 order that deps taken in any “related” case could be used “as if taken” in the California case. That served to avoid duplicative depositions, and to enforce the time limits for deposing a single witness. The defendant manufacturers believed that their Rule 16 agreement would not carry forward and become a right to read at trial every dep taken in a “related” case. The deps were not noticed as de bene esse examinations for use at trial, but only asĀ  discovery deps. In that situation, a party may prefer at a dep not to ask a non-party witness about a particular matter, preferring instead to wait and see if the witness shows up on the trial witness list.Bad presumption by the manufacturers, according to Judge Whyte’s March 10th ruling. In essence, he decides that the manufacturers needed to be more diligent in asserting their objection to use of the deps at trial, when they agreed that the “related” cases deps could be used “as if taken” in the case before Judge Whyte. Wasn’t there a story about two ships with the same name, and the mutual mistake about that? The takeaway is that the Rule 16 stipulation needs to state that once discovery is over, that all objections as to admissibility and use of discovery at trial are preserved, and that the final pretrial order will supplant the case management order.