1. These case management procedures are intended to promote cooperation among counsel, assist in the early identification of issues, minimize the cost and delay of litigation, and enhance the potential for settlement. (As used in this appendix, “counsel” shall be construed to include unrepresented parties.)

2. Uniformity of practice within the court also is an important goal of these procedures. For the purpose of promoting the efficient administration of justice, a judge may modify these procedures as appropriate, or the parties may suggest modification of these procedures to meet the needs of a particular case.

3. Subsequent to the filing of defendant’s answer or, if applicable, a reply to a counterclaim, and, in any event, within sufficient time to permit the parties to file a Joint Preliminary Status Report in accordance with paragraph 4, below, plaintiff’s counsel shall communicate with defense counsel, and counsel shall confer:

(a) to initiate preparation of the Joint Preliminary Status Report pursuant to paragraphs 4–6;

(b) to identify each party’s factual and legal contentions;

(c) to discuss each party’s discovery needs and discovery schedule, including the initial disclosures required by RCFC 26(a)(1) and additional documents that are to be the subject of discovery, e.g., determining what is needed, the objections, if any, to supplying it, and where it is available, along with follow-up letters to provide a record. Informal discovery is encouraged. The parties are also encouraged to cooperate in the conduct of discovery and to make additional voluntary disclosures through informal discovery;

(d) to discuss the expected means of resolving the dispute, i.e., whether by trial or dispositive motion; and

(e) to discuss settlement of the action, including use of alternative dispute resolution. See Appendix H.

4. No later than 49 days after defendant’s answer or plaintiff’s reply to a counterclaim is served, the parties shall file with the clerk a Joint Preliminary Status Report, signed by both parties, setting forth answers to the following questions (separate views may be set forth on any point on which the parties cannot agree):

(a) Does the court have jurisdiction over the action?

(b) Should the case be consolidated with any other case and, if so, why?

(c) Should trial of liability and damages be bifurcated and, if so, why?

(d) Should further proceedings in the case be deferred pending consideration of another case before this court or any other tribunal and, if so, why?

(e) In cases other than tax refund actions, will a remand or suspension be sought and, if so, why and for how long?

(f) Will additional parties be joined? If so, the parties shall provide a statement describing such parties, their relationship to the case, the efforts to effect joinder, and the schedule proposed to effect joinder?

(g) Does either party intend to file a motion pursuant to RCFC 12(b), 12(c), or 56 and, if so, what is the schedule for the intended filing?

(h) What are the relevant factual and legal issues?

(i) What is the likelihood of settlement? Is alternative dispute resolution contemplated?

(j) Do the parties anticipate proceeding to trial? Does either party, or do the parties jointly, request expedited trial scheduling and, if so, why? A request for expedited trial scheduling is generally appropriate when the parties anticipate that discovery, if any, can be completed within a 90-day period, the case can be tried within 3 days, no dispositive motion is anticipated, and a bench ruling is sought. The requested place of trial shall be stated. Before such a request is made, the parties shall confer specifically on this subject.

(k) Are there special issues regarding electronic case management needs?

(l ) Is there other information of which the court should be aware at this time?

5. If discovery is required, the Joint Preliminary Status Report shall set forth a proposed discovery plan, including proposed deadlines. The parties shall propose a deadline for fact discovery, for the disclosure of any experts’ reports, and for depositions or other discovery of experts. See RCFC 26(a)(2) concerning disclosure of experts and discovery planning.

6. Unless otherwise ordered, the Joint Preliminary Status Report shall be deferred indefinitely if on or before the date the Joint Preliminary Status Report is due a dispositive motion addressing all issues is filed.

7. Preliminary Scheduling Conference. After the filing of the Joint Preliminary Status Report, the judge will ordinarily conduct the preliminary scheduling conference contemplated by RCFC 16(b) to acquaint the court with the issues in the case, to discuss any special problems that may exist, and to establish a schedule for further proceedings. In the interest of justice and judicial economy, a preliminary scheduling conference will not be held if, in the court’s assessment, further discussion of the matters presented in the Joint Preliminary Status Report would not be useful.

8. Scheduling Order. After the preliminary scheduling conference or, if none is held, after the filing of the Joint Preliminary Status Report, the judge shall promptly enter the scheduling order called for by RCFC 16(b).

9. Interrogatories, Requests for Admission, Responses. A party shall number interrogatories and requests for admission sequentially without repeating the numbers it has used in any prior set of interrogatories or requests for admission. By counsel’s signature to the answers and pursuant to RCFC 11, counsel for the responding party shall certify that counsel has made a diligent effort to provide answers to all portions of interrogatories or requests for admission to which it does not specifically object.

10. Discovery Motions. A motion to compel or to protect from discovery shall contain a statement that the movant has in good faith conferred or attempted to confer to resolve the matters in dispute.

11. Post-Discovery Conference. Upon completion of all discovery (including discovery of any experts), the court shall hold a post-discovery conference to determine how the case will proceed. The attorneys appearing at the post-discovery conference shall be the attorneys who are expected to try the case and are thoroughly familiar with it. At the conference, counsel will be called upon to (i) address the factual and legal issues in dispute, (ii) discuss the evidence and decisional law that each side offers in support of its position, and (iii) identify the best means of resolving the dispute, i.e., whether by summary judgment, trial, or an alternative method of dispute resolution.

12. Scheduling Order. See generally RCFC 16 and 56. Promptly after the post-discovery conference, the judge shall enter a scheduling order to address further proceedings. For cases that will proceed by summary judgment in accordance with RCFC 56, the order shall establish a schedule for the filing of summary judgment motions and briefs. For cases to be resolved by trial, the order shall set (1) the time and place of trial, (2) the time and place of the final pretrial conference, and (3) the date by which the memoranda and disclosures called for by paragraphs 14–18 are due.

13. Meeting of Counsel. For cases to be resolved by trial, counsel for the parties shall meet no later than 63 days before the pretrial conference and accomplish the following:

(a) Exhibits. Exchange a list of all exhibits (including summaries, see Fed. R. Evid. 1006) to be used at trial for case-in-chief or rebuttal purposes, except those to be used exclusively for impeachment. Each exhibit listed shall be identified by an exhibit number and description. Unless previously exchanged, counsel for the parties shall exchange a copy of each exhibit listed. In the case of exhibits to be offered as summaries under Fed. R. Evid. 1006, the offering party shall provide opposing counsel with a statement with respect to each summary exhibit describing the source(s) for the items or figures listed (e.g., ledgers, journals, payrolls, invoices, checks, time cards, etc.), the location(s) of the source(s), a time when the source(s) may be examined or audited by the opposing party, the name and address of the person(s) who prepared each summary and who will be made available to the opposing party during any examination or audit of the source material to provide information, and explanations necessary for verification of the information in the summary. Failure to list an exhibit shall result in exclusion of the exhibit at trial absent agreement of the parties to the contrary or a showing of a compelling reason for the failure. See also RCFC 26(a)(1), (2).

(b) Witnesses. Exchange a list of names, addresses, and telephone numbers of witnesses, including expert witnesses, who may be called at trial for case-in-chief or rebuttal purposes, except those to be used exclusively for impeachment. Failure of a party to list a witness shall result in the exclusion of the witness’s testimony at trial absent agreement of the parties to the contrary or a showing of a compelling reason for the failure. Any witness whose identity has not been previously disclosed shall be subject to discovery. As to each witness, the party shall indicate the specific topics to be addressed in the expected testimony.

(c) Conference.

(1) Disclose to opposing counsel the intention to file a motion for leave to file a transcript of deposition for introduction at trial.

(2) Resolve, if possible, any objections to the admission of testimony (including deposition testimony) or exhibits.

(3) Disclose to opposing counsel all contentions as to applicable facts and law, unless previously disclosed.

(4) Engage in good-faith, diligent efforts to stipulate and agree to facts about which the parties know, or have reason to know, there can be no dispute for the purpose of simplifying the issues at trial.

(5) Consider agreement to submitting the case to the court for resolution (including any factual disputes) on the basis of a documentary record submitted by the parties. See also RCFC 43(e).

(6) Exhaust all possibilities of settlement.

(d) Certification. Within 7 days after the meeting, counsel shall file a Joint Certification verifying that they met and accomplished all matters required by this paragraph.

14. Memorandum of Contentions of Fact and Law.

(a) Plaintiff’s Memorandum. No later than 49 days before the pretrial conference, plaintiff shall file a Memorandum of Contentions of Fact and Law. The memorandum shall contain the following:

(1) a full but concise statement of the facts plaintiff expects to prove and a discussion of plaintiff’s position with respect to the facts on which defendant is expected to rely;

(2) a statement of the issues of fact and law to be resolved by the court. The issues should be set forth in sufficient detail to enable the court to resolve the case in its entirety by addressing each of the issues listed;

(3) a discussion of the legal principles plaintiff contends are applicable, as well as plaintiff’s response to defendant’s anticipated legal position. Any objection to a witness or exhibit listed under paragraph 13 shall be made in the Memorandum of Contentions of Fact and Law, or in a separate motion filed on the same date;

(4) if plaintiff believes that bifurcation of the issues for trial is appropriate, the memorandum shall contain a request therefor, together with a statement of reasons.

(b) Defendant’s Memorandum. No later than 21 days before the pretrial conference, defendant shall file its responsive memorandum in the same form and content as plaintiff’s.

(c) Responses. The parties shall cooperate in the exchanges specified in paragraph 13. Consequently, any responses to matters expected to be raised by the opposing party shall be included in each party’s Memorandum of Contentions of Fact and Law. However, if anything new or unexpected is discovered, it may be addressed in a brief response which must be filed under cover of a motion for leave immediately upon learning of it.

(d) Proposed Findings of Fact and Conclusions of Law. The judge may, in lieu of the Memoranda of Contentions of Fact and Law, order the filing of Proposed Findings of Fact and Conclusions of Law, including, at the judge’s direction, annotations to the exhibits or witnesses on which the party will rely to prove the findings.

15. Witness List.

(a) Each party shall file, together with the Memorandum of Contentions of Fact and Law, a separate statement setting forth a list of witnesses to be called at trial for case-in-chief or rebuttal purposes, except those to be used exclusively for impeachment. The witness list shall separately identify those whom the party expects to present and those whom the party may call if the need arises. As to each witness, the party shall indicate the specific topics to be addressed in the expected testimony and the time needed for direct examination.

(b) Any party intending to present substantive evidence by way of deposition testimony, other than as provided by Fed. R. Evid. 801(d), shall serve and file a separate motion for leave to file the transcript of such testimony. The motion shall show cause why the deposition testimony should be admitted and identify specifically the portions of the transcript(s) the party intends to use at trial. See RCFC 32(a)(2) and (3). If the motion is granted, only those identified portions of the transcript may be filed.

16. Exhibit List. Each party shall file, together with the Memorandum of Contentions of Fact and Law, a separate statement setting forth a list of exhibits it expects to offer at trial for case-in-chief or rebuttal purposes (including summaries to be offered pursuant to Fed. R. Evid. 1006), other than those to be used exclusively for impeachment. The exhibit list shall separately identify those exhibits that the party expects to offer and those that the party may offer if the need arises.

17. Stipulations. The parties shall file, either before or after the pretrial conference, a stipulation setting forth all factual matters as to which they agree.

18. Joint Exhibits. Prior to the final pretrial conference, the parties shall review the exhibit lists filed with the court and consolidate as many exhibits as possible into a set of joint exhibits for use at trial. All joint exhibits shall be identified in a joint exhibit list that identifies each exhibit by a joint exhibit number and description.

19. Post-Trial Briefing. The judge may order the filing of post-trial briefs, which may include, at the judge’s direction, either a statement of facts or proposed findings of fact, together with citations to the record. Post-trial briefing is not a matter of right.

Appendix A represents the court’s standard pretrial order. The case management procedures contained in Appendix A reflect those procedures that are considered, in the collective experience of the court and the members of its bar, to be most beneficial in securing the prompt and expeditious resolution of claims and disputes. Some important changes have been introduced. Chief among these are procedures calling for a preliminary scheduling conference to be set following the filing of the Joint Preliminary Status Report, and a post-discovery conference following the completion of discovery. The expectation reflected in these conference procedures is that early and ongoing involvement of the court during the pretrial development of a case can contribute both to a prompt identification of the issues and to a narrowing of the scope of the dispute.

The promulgation of Appendix A as a synthesis of the views of the bench and the bar is intended to encourage standardization in pretrial practice procedures. Appendix A recognizes, however, that the pretrial procedures to be followed in any particular case ultimately depend upon the needs of that case. Hence, Appendix A permits modification of its procedures, either at a judge’s initiative or at the parties’ suggestion, when such modification will promote the efficient administration of justice.

Subparagraph (d) has been added to paragraph 13 (Meeting of Counsel) to provide the court with timely confirmation that counsel have exchanged exhibit and witness lists and have conferred regarding: (i) intentions to seek introduction of deposition transcripts; (ii) resolution of objections to the admission of testimony or exhibits; (iii) disclosure of applicable fact and law contentions; (iv) good-faith efforts to stipulate facts and to simplify trial; (v) agreement for submission on the basis of a documentary record; and (vi) exhaustion of settlement efforts. In addition, paragraph 17 (Stipulations) has been amended to emphasize the importance of stipulations in the pretrial process.

The Federal Rules of Evidence, referred to in pars. 13(a), 15(b), and (16), are set out in this Appendix.