Change. Everyone resists it, particularly lawyers. But change we must if we practice in Arkansas's federal district courts. The 1993 amendments to the Federal Rules of Civil Procedure introduced profound changes to pre trial practice. Particularly, the 1993 amendments introduced the requirement of "initial disclosures" ­ the exchange, at the early stages of the case, of information regarding potential witnesses, and the identification and production of pertinent documents.¹ Coupled with the requirement of initial disclosures were limitations on the number of depositions and interrogatories that a party could take and propound.² And parties were further prohibited from engaging in any type of discovery until after conferring regarding discovery needs and scheduling.³

Those amendments also contained "opt-out" provisions⁴ that enabled each district to decide whether to reject these novel (and to some, alarming) procedures and adhere to the methods we all knew and were comfortable with. The United States District Courts for both the Eastern and the Western Districts of Arkansas chose to opt out. In identical orders⁵ the courts rejected these changes, finding them "unnecessary," "unduly burdensome," and "working an unnecessary hardship and potential increase in litigation costs on litigants and attorneys[.]" Both courts dismissed the limits on the number of depositions and interrogatories as "blindly and without consideration of the requirements of the case at hand, limit[ing] such discovery."

Effective December 1, 2000, the Rules were amended to delete the "opt-out" provisions, thereby mandating uniform compliance with the "new" Rules for every district in the country. Also, some of the Rules were amended to meet concerns and problems that came to light during the prior seven years.

With this article, our hope is to provide useful information, practice tips, and a few "caveats" about the new methods of federal court practice in Arkansas ­ and maybe ease the pain of change a little bit, in the process. I. THE INITIAL SCHEDULING ORDER, RULE 26(f) CONFERENCE, INITIAL DISCLOSURES, RULE 26(f) REPORT, RULE 16 SCHEDULING CONFERENCE, AND FINAL SCHEDULING ORDER.

The purpose of the "new" rules is to establish a format by which scheduling and case management, and information central to the parties' claims and defenses, are established and disclosed at the early stages of the case. Both federal district courts in Arkansas have adopted a series of Local Rules to facilitate that process.

This part of the article presents, in roughly chronological order, the steps and deadlines created by the rules.
(a) The Initial Scheduling Order.
    Both of the Arkansas federal district courts have adopted Local Rule 16.1, which requires the issuance by the Court of the Initial Scheduling Order ("ISO").
The ISO is issued after an appearance is made by at least one defendant.
   Tip: If you represent a defendant in a multiple-defendant case, you should check with the court clerk (or    the Pacer docket on the internet) to determine whether any of the other defendants have made an    appearance and thus whether the ISO has already been issued. At this time, the clerks' offices are    issuing the ISO only once ­ to the plaintiff and to the defendant who makes the first appearance.
The ISO contains the following important dates:
• Deadline for Rule 26(f) conference;
• Deadline for Rule 26(f) report;
• Proposed trial date;
• Date for Rule 16(b) conference;
• Date for final scheduling order.
(b) The Rule 26(f) conference.
   The Rule 26(f) conference among counsel for the parties must be held by the deadline stated in the ISO. Usually, this will be scheduled to occur about 30 to 45 days after the issuance of the ISO. Under Rule 26(d), no discovery may be conducted by any party until after the Rule 26(f) conference is held.

The matters to be discussed at the Rule 26(f) conference are set forth in Rule 26 (f) and in Local Rule 26.1 and include:
•  The nature and basis of claims and defenses;
•  The possibilities for early settlement or resolution of the case;
•  Arrangements for Rule 26(a)(1) disclosures;
•  A discovery plan, including discovery sequence, deadlines, protective orders, changes in discovery     limitations imposed by the rules, and other matters set forth in Rule 26(f)(1) ­ (4) and Local Rule 26.1;     and
•  The procedures for disclosing electronic or computer-based media, as set forth in Local Rule 26.1(4).

CAVEAT: Any objections to making the initial disclosures required under Rule 26(a)(1) must be stated both at the 26(f) conference and in the 26(f) report; otherwise, those objections are waived. Fed. R. Civ. P. 26a)(1). The typical objection is that a threshold dispositive motion, such as a Rule 12(b) motion or a motion to compel arbitration, will be made or is pending, and if granted would make the disclosures unnecessary.

(c) The Rule 26(a)(1) disclosures.
   There are eight types of cases that are specifically exempted from the disclosure requirements. They are enumerated in Rule 26(a)(1)(E). Unless your case falls within one of those exemptions, your Rule 26(a)(1) disclosures are to be made at, or within 14 days after, the Rule 26(f) conference, unless an objection is stated at that conference and included in the Rule 26(f) report. (See Caveat, above.) If your party is joined after the Rule 26(f) conference, the disclosures are to be made within 30 days after being served or joined, absent a stipulation or court order to the contrary.

The information to be disclosed is set forth in Rule 26(a)(1)(A)-(D) and includes the following:
• The names, addresses and telephone numbers of individuals (other than those used solely for    impeachment) having discoverable information that the disclosing party may use in support of its    claims or defenses, and the subject matter of that information;
• A copy of, or a description by category and location of, documents, data compilations, and tangible    items (other than materials used solely for impeachment) in the possession, custody or control of the    disclosing party and that the disclosing party may use in support of its claims or defenses;
• A computation of any category of damages claimed by the disclosing party, and making available for    production all non-privileged materials on which the computations are based, including materials bearing    on the nature and extent of the injuries suffered;
• Production of any insurance policy that may provide a source of payment for any judgment, whether    direct or by indemnity.

TIPS AND CAVEATS:
• The boldfaced language marks a significant departure from the 1993 disclosure requirements. Under the   original provisions, a party was required to disclose witnesses, documents and things which were   "relevant to the facts pleaded with particularity in the pleadings." This language placed parties and their   attorneys in a quandary; under the strict letter of this language arguably they were required to disclose to   the opposition not only witnesses and materials that supported their claims or defenses, but also   witnesses and materials that were detrimental to their claims or defenses. The 2000 amendments to   Rule 26(a)(1)(A) and (B) now make clear that a party is required to disclose only those individuals and   materials that it intends to use to support its claims or defenses. Thus detrimental witnesses and   materials still must be ferreted out through traditional discovery.
• The disclosures must be based on information reasonably available to the party at the time of disclosure.   Rule 26(a)(1) expressly provides that disclosures are not excused for failure to complete investigation, or   because other parties have failed to make their disclosures.
• Under Rule 26(e), A party is under a duty to supplement its initial disclosures (as well as expert and   pretrial disclosures under Rule 26(a)(2) and (3)).
• Sanctions. Under Rule 37(c), unless the failure to make Rule 26(a) disclosures is "harmless," the   undisclosed testimony or information is to be excluded from evidence.
• Rule 26(a)(1) disclosures are not filed with the court.
(d) The Rule 26(f) report.

The deadline for filing the Rule 26(f) report is contained in the ISO. The items to be included in the Rule 26(f) report are enumerated in Local Rule 26.1 and include, among other things, deadlines for making Rule 26 disclosures (including initial disclosures and expert disclosures); any need to deviate from limits on discovery imposed by the rules (such as the number of depositions and interrogatories); any needed protective orders; sequencing and deadlines for joining parties and amending pleadings, for discovery, and for filing dispositive motions; objections to the proposed trial date; and any objections to making the initial disclosures required under Rule 26(a)(1). Again, any objection to Rule 26(a)(1) disclosures must be made at the Rule 26(f) conference and stated in the Rule 26(f) report.

The Rule 26(f) report should be a joint submission unless the parties disagree on any points to be contained in that report. In that case, separate Rule 26(f) reports should be filed.
(e) The Rule 16 Scheduling Conference and the Final Scheduling Order.

The ISO will include a date for a Rule 16(b) scheduling conference, which will be scheduled on a date after the deadline for the Rule 26(f) report. If the Rule 26(f) report contains nothing requiring the Court's attention or action, then the Rule 16 scheduling conference will not be held. After the scheduling conference, or if one is not held, the Court will then issue the Final Scheduling Order ("FSO"). The FSO will contain the trial date, the deadlines for adding parties and amending pleadings, the expert disclosure deadline, the discovery cutoff, the dispositive motion deadline, and the deadlines for filing pre-trial disclosure sheets and objections thereto, exhibit lists, jury instructions, trail briefs, and findings of
fact/conclusions of law.
     TIP: To avoid a FSO that might deviate from the parties' agreements, consider preparing and      submitting a proposed FSO for the Court's entry.

II. ATTORNEY- AND COURT-MANAGED DISCOVERY AND OTHER LIMITS; FILING REQUIREMENTS; EXPERT DISCLOSURES, PRETRIAL DISCLOSURES, AND SANCTIONS.
(a) Attorney- and Court-Managed Discovery.
     Another of the more significant changes under the "new" rules is the distinction between attorney- and court managed discovery contained in Rule 26(b)(1). Under that rule, the scope of discovery in which parties may engage without court supervision is limited to "discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party[.]" Otherwise, "For good cause, the court may order discovery on any matter relevant to the subject matter involved in the action."

Thus Rule 26(b)(1) establishes a dichotomy between "claim-or-defense" discovery and "subject matter" discovery. Unfortunately, the difference is hard to discern, and the comments to the rule offer little concrete guidance:
     The Committee intends that the parties and the court focus on the actual claims and defenses involved in the action. The dividing line between information relevant to the claims and defenses and that relevant only to the subject matter of the action cannot be determined with precision. A variety of types of information not directly pertinent to the incident in suit could be relevant to the claims or defenses raised in a given action. For example, other incidents of the same type, or involving the same product, could be properly discoverable under the revised standard. . . .The rule change signals to the court that it has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings." . . . When judicial intervention is invoked, the actual scope of discovery should be determined according to the reasonable needs of the action. The court may permit broader discovery in a particular case depending on the circumstances of the case, the nature of the claims and defenses, and the scope of discovery requested." (Emphasis added.)⁶

Perhaps the better way to articulate this rule change is to say that it is designed to forestall overbroad, "fishing expedition" discovery that can needlessly protract a case and cause undue burden and expense to the parties. The touchstone of the rule is the case's pleadings: the scope of attorney-managed discovery should not exceed the parameters of the facts, claims and defenses specifically set forth in the pleadings. For example, if a plaintiff's claim against a lawnmower manufacturer in a product liability action is that he was injured as a result of a defectively attached blade on a specific model, attorney-managed discovery would not permit him to inquire either into other, unrelated types of malfunctions with respect to that model, or into blade attachment malfunctions in other models made by the manufacturer.

The dichotomy established under Rule 26(b)(1) may well create more discovery skirmishes than it avoids. In any event, the protection is there if attorney-managed discovery becomes excessive.
(b) Other limits on discovery ­ interrogatories, depositions, and the limitations of Rule 26(b)(2).
   Under Rule 33(a), absent leave of court a party is limited to 25 interrogatories "including all discrete subparts." Under Rule 30(a)(2)(A), each side in a case ­ not each party ­ is limited to ten depositions. Thus in multi-defendant cases, the defendants should work together in determining which depositions are necessary. Additionally, under Rule 30(d)(2), each deposition must be completed within one day and may not exceed seven hours.

Under Rule 26(b)(2) the Court may modify these limitations. The parties can modify the ten-deposition limit by written stipulation. A written stipulation or leave of the court is also required in order to permit a party to serve more than 25 interrogatories. Counsel who desire to take more than ten depositions per side or to serve more than 25 interrogatories per party should raise the issue at the Rule 26(f) conference and include a report of the parties' positions in the 26(f) report. A party seeking extra interrogatories should be prepared to explain to the district judge why they are needed, and perhaps to produce the extra interrogatories for the court's consideration, as recently required by one Eastern District judge. A lawyer who seeks extra depositions should be prepared to identify the persons sought to be deposed and state to the district court what the lawyer believes will be accomplished in the extra depositions.⁷

Rule 26(b)(2) also empowers the courts to intervene and limit discovery if (i) the discovery is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient or less expensive; (ii) the party already has had ample opportunity to obtain the information by other discovery; or (iii) the burden or expense of the discovery is outweighed by its value, in light of the needs of the case, the parties' resources, and its importance to the issues. (Again, query whether this provision only invites more discovery-related litigation.)
(c) Abolition of discovery filing requirements.
      Under Rule 5(d), no discovery materials of any type are to be filed with the court. This includes depositions and interrogatories, requests for production, requests for admission and responses thereto. Additionally, the comment to the 2000 amendment to Rule 5(d) explains that deposition notices under Rule 30(b) and objections to written discovery are not to be filed.^{8
(d) Expert disclosures.
     Rule 26(a)(2) requires each party to disclose any expert who may be used to present evidence under Fed. R. Evid. 702, 703 or 705. Subpart (C) of this rule states that disclosures of primary experts must be made at least 90 days prior to trial, with rebuttal experts to be identified within 30 days after the disclosure of the primary experts.}

TIP: The deadlines contained in the Rule often will not mesh with the discovery plan the parties establish at the Rule 26(f) conference. Accordingly, the attorneys should develop expert disclosure deadlines as part of that conference and include them in the Rule 26(f) report, so that they will be adopted in the FSO.

Note that subpart (B) of Rule 26(a)(2) defines an expert to include not only non-party "hired guns," but also anyone "whose duties as an employee of the party regularly involve giving expert testimony." This subpart also requires a written report prepared and signed by the expert containing the following information:
• A complete statement of all opinions to be expressed and the basis and reasons therefor;
• The data or information considered by the expert in forming the opinions;
• Any exhibits to be used as a summary of, or support for, the opinions;
• The qualifications of the witness, including all publications authored by the expert in the past ten years;
• The compensation to be paid for the expert's services, including testimony;
• A list of all cases in which the expert has testified at trial or in deposition for the past four years.

All disclosures made under Rule 26(b)(2) are subject to the supplementation requirements of Rule 26(e)(1).
CAVEAT: Rule 26(e)(1) specifies that both expert reports and expert deposition testimony are to be supplemented, if necessary, by the time that the pretrial disclosures are made under Rule 26(a)(3) (next discussed).
(e) Pretrial disclosures.
     Rule 26(a)(3) and Local Rule 26.2 combine to establish the pretrial disclosures to be made by each party. These disclosures are largely the same as those that were made in the former Pretrial Conference Information Sheet that the Arkansas federal district courts used in past practice. The FSO will establish the deadline for making the pretrial disclosures and objections thereto.
CAVEATS: Under Rule 26(a)(3), all objections to pretrial disclosures, including objections to the use of depositions and to the admissibility of documents and demonstrative evidence, must be made within 14 days after the disclosures, or they are waived. The only exception to the waiver is for objections made under Fed. R. Evid. 402 and 403, or for other objections not made which are excused by the court from good cause. Also, any supplements to an expert report or expert depositions are to be made by the deadline for the Rule 26(a)(3) pretrial disclosures.

Local Rule 26.2 enumerates the information to be provided. Under that rule, witnesses and exhibits are to be identified in two separate categories: those witnesses that the party expects to call, and those that it may call; and those exhibits that it expects to offer, and those that it may offer.
(f) Sanctions.
     With the adoption of the "new" rules, attorneys should pay heed to the additional sanctions applicable under Rule 37:
• Rule 37(c) exposes a party to sanctions if it fails to make the disclosures required under Rule 26(a)(1),   (2) or (3) or if it fails to supplement those disclosures under Rule 26(e);
• Rule 37(g) exposes the party and its attorney to sanctions for failure to participate in the development   and submission of a discovery plan under Rule 26(f).

Additionally, Rule 37(c)(1) was amended in 2000 to specifically include sanctions for failure to seasonably amend or correct answers to prior written discovery (including requests for admission), as required under Rule 26(e)(2).

CONCLUSION
This article does not provide all of the information one will need in order to comply with the 2000 amendments to the Federal Rules of Civil Procedure. There is no substitute for reading the rules (and particularly the new Local Rules) and cases interpreting them. Patience and lenience will be the greatest virtues as old dogs learn these new tricks.
1. Fed. R. Civ. P. 26(a)(1)-(4) (1993).
2. Fed. R. Civ. P. 30(a)(2)(A), 31(a)(2)(A), 33(a) (1993).3. Fed. R. Civ. P. 26(d),(f) (1993).
4. See rules cited in notes I ­ iii.
5. U. S. Dist. Ct. W.D. Ark. Gen'l Order No. 25 (Feb. 2, 1994); U.S. Dist. Ct. E. D. Ark. Gen'l Order     42 (Feb. 22, 1994).
6. Comments, 2000 Amendments, Fed. R. Civ. P. 26(b)(1), reprinted in FEDERAL CIVIL     PROCEDURE AND RULES, (West 2001 ed.) at 157.
7. See, e.g., Bell v. Fowler, 99 F.3d 262, 271 (8th Cir. 1996) (district court did not abuse its discretion in     refusing to allow additional depositions where party did not explain need for them or information sought.
8. Comments, 2000 Amendments, Fed. R. Civ. P. 5(d), reprinted in FEDERAL CIVIL PROCEDURE     AND RULES, (West 2001 ed.) at 79.