(a)Scheduling order.(1) Issuing order. Except in categories of actions exempted by Rule 12(b) of this Rule and cases designated as complex litigation under Rule 12(c) of this Rule, the trial judge must issue a scheduling order after consulting with the parties' attorneys and any self-represented parties at a scheduling conference.(2) Time to issue. The judge must issue the scheduling order as soon as practicable, but unless the judge finds good cause for delay, the judge must issue it within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared.(3) Contents of the scheduling order. (A)Required contents. The judge shall enter an order governing and addressing: (i) the setting of a date for trial;(ii) disclosures under Rule 26(a) of the Hawai'i Rules of Civil Procedure;(iii) the extent of discovery to be permitted;(iv) the discovery completion date;(v) deadlines for motions to be filed and heard, to join other parties, and to amend pleadings; and(vi) the assignment of a case to a track under Rule 16.1 of the Hawai'i Rules of Civil Procedure.(B)Permitted Contents. The scheduling order may: (i) modify the timing of disclosures under Rules 26(a) and 26(e) of the Hawai'i Rules of Civil Procedure;(ii) modify the extent of discovery;(iii) provide for disclosure, discovery, or preservation of electronically stored information;(iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced;(v) direct that before moving for an order relating to discovery, the movant must request a conference with the court;(vi) set dates for pretrial conferences, including a final pretrial conference;(vii) set deadlines for the exchange and submission of trial materials, including exhibits, stipulations, depositions and trial preservation testimonies, proposed jury instructions, and proposed questions for jury selection; and(viii) include other appropriate matters.(4)Scheduling conference. Within the earlier of 14 days after any defendant has been served with the complaint or has appeared, the plaintiff shall file a notice requesting a Scheduling Conference to be set by the court. The court shall then issue an order or a notice setting the Scheduling Conference date. The plaintiff shall promptly serve the order or notice issued by the court setting the Scheduling Conference date on all parties who have been served with the complaint, except those who have appeared in the case before the order or notice was issued. The Scheduling Conference shall be attended by each party who has appeared in the case or that party's lead counsel. In a case with multiple defendants, where despite plaintiff's diligent efforts it appears likely that not all defendants will be served with the complaint prior to the first Scheduling Conference, the plaintiff may request that the Scheduling Conference be rescheduled to allow additional time for service.(5)Modifying a schedule. A schedule may be modified only for good cause and with the judge's consent.(6)Conference of the parties; planning for discovery.(A)Timing of parties' conference. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) of the Hawai'i Rules of Civil Procedure or when the court orders otherwise, the parties must confer as soon as practicable - and in any event at least 21 days before a scheduling conference is to be held under Rule 16(b) of the Hawai'i Rules of Civil Procedure.(B)Matters considered in parties' conference; parties' responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1) of the Hawai'i Rules of Civil Procedure; discuss whether the case should be assigned to an expedited or non-expedited track under Rule 16.1 of the Hawai'i Rules of Civil Procedure; discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all self-represented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person. (C)Discovery plan. A discovery plan must state the parties' views and proposals on: (i) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a) of the Hawai'i Rules of Civil Procedure, including a statement of when initial disclosures were made or will be made;(ii) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;(iii) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;(iv) any issues about claims of privilege or of protection as trial-preparation materials, including - if the parties agree on a procedure to assert these claims after production - whether to ask the court to include their agreement in an order;(v) what changes should be made in the limitations on discovery imposed under the Hawai'i Rules of Civil Procedure or these rules, and what other limitations should be imposed; and(vi) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c) of the Hawai'i Rules of Civil Procedure.(7)Scheduling conference statement. Unless otherwise ordered by the court, each party shall file with the court and serve on all parties a "Scheduling Conference Statement" no later than 7 days prior to the scheduling conference. The Scheduling Conference Statement shall include the following:(A) A short statement of the nature of the case;(B) A statement of jurisdiction with cited authority for jurisdiction and a short description of the facts conferring venue;(C) Whether jury trial has been demanded;(D) Whether the case should be assigned to an expedited or non-expedited track under Rule 16.1 of the Hawai'i Rules of Civil Procedure;(E) A statement addressing the appropriateness, extent, and timing of disclosures pursuant to Rule 26 of the Hawai'i Rules of Civil Procedure that are not covered by the report(s) filed pursuant to Rule 26(f) of the Hawai'i Rules of Civil Procedure; (F) A list of discovery completed, discovery in progress, motions pending, and hearing dates;(G) A statement addressing the appropriateness of any of the special procedures or other matters specified in Rule 16(c) of the Hawai'i Rules of Civil Procedure that are not covered by the report(s) filed pursuant to Rule 26(f) of the Hawai'i Rules of Civil Procedure;(H) A statement identifying any related case, including pending cases as well as cases that have been adjudicated or have otherwise been terminated, in any state or federal court; and(I) Additional matters at the option of the parties. Each party shall certify that it has conferred pursuant to paragraph (a)(6) of this Rule or state the reasons why the parties did not fulfill the requirement to confer.
(8) Attendance and matters for consideration at a scheduling conference. All parties receiving notice of the scheduling conference shall attend remotely (either through counsel or personally) or in person as ordered by the court. Lead counsel and self-represented parties shall be prepared to discuss the following subjects: (A) Service of process on parties not yet served;(B) Jurisdiction and venue;(C) Anticipated motions, and deadlines as to the filing and hearing of motions;(D) Appropriateness and timing of motions for dismissal or for summary judgment under Rule 12 or Rule 56 of the Hawai'i Rules of Civil Procedure;(E) Deadlines to join other parties and to amend pleadings;(F) Whether the case should be assigned to an expedited or non-expedited track under Rule 16.1 of the Hawai'i Rules of Civil Procedure;(G) Anticipated or remaining discovery, including discovery cut-off;(H) The control and scheduling of discovery, including orders affecting disclosures and discovery pursuant to Rule 16.1, Rule 26, and Rules 29 through 37 of the Hawai'i Rules of Civil Procedure;(I) Further proceedings, including setting dates for additional pretrial conference(s), settlement conference, final pretrial conference, submission and exchange of trial materials, and trial, and compliance with Rule 12.1 of these Rules;(J) Appropriateness of special procedures such as consolidation of actions for discovery or pretrial, alternative dispute resolution procedures, or application of procedures for cases designated as complex litigation;(K) Modification of the standard pretrial procedures specified by this rule on account of the relative simplicity or complexity of the action or proceeding;(L) Prospects for settlement, including participation in the court's mediation program or any other alternative dispute resolution process; and(M) Any other matter that may be conducive to the just, efficient, and economical determination of the action or proceeding, including the definition or limitation of issues, or any of the other matters specified in Rule 16(c) of the Hawai'i Rules of Civil Procedure.(b)Exempt actions.(1) Categories of exempt actions. The following categories of actions are exempt from the provisions of Rule 12(a) of this Rule:(B) cases included in and not exempted from the Court Annexed Arbitration Program established by Hawai'i Revised Statutes § 601-20;(C) agency appeals pursuant to Hawai'i Revised Statutes;(D) consumer debt collection;(2) Scheduling for exempt actions. For actions exempted under paragraph (b)(1) of this Rule, unless otherwise ordered by the court, within 8 months after the complaint has been filed, the plaintiff shall file a notice requesting a trial setting/status conference to be set by the court. After holding the trial setting/status conference, or based on the pleadings, the court shall establish the trial date or other appropriate deadlines for resolving the case. The court, in its discretion, may require the parties in whole or in part to follow the scheduling conference procedures set forth in Rule 12(a) of this Rule. The court may also consider alternative dispute resolution options and other matters which may be conducive to the just, efficient, and economical determination of the case. (c)Designation as complex litigation. Any party may move to have a case designated by the court as Complex Litigation within 8 months after a complaint has been filed or at any time upon good cause shown. The judge hearing the Motion for Designation as Complex Litigation will have complete and unreviewable discretion in making the determination. Upon such a designation by the court, in cases where a jury will decide all issues the case will be assigned to a trial judge for handling until conclusion. In non-jury cases, the case will be assigned to a trial judge for handling until trial, but may be reassigned to a separate judge for the actual trial. This rule shall apply to cases filed in the First Circuit and other circuits as ordered by the Civil Administrative Judge of that circuit Once a case is designated by the court as Complex Litigation, the scheduling and case management of the case shall be governed by orders issued by the judge assigned to the case pursuant to this paragraph (c). (1) Criteria. In determining whether a case should be designated as Complex Litigation, the court shall consider the following criteria: (A) The estimated amount in controversy is in excess of $750,000, excluding interest, attorney's fees and costs; (B) The estimated length of trial is 6 weeks or more; (C) The number of parties, including all plaintiffs and defendants is 10 or more; (D) One or more of the parties is a person who is not a citizen or resident of the United States; (E) The anticipated number of expert witnesses is 8 or more; (F) The case involves complex and multiple issues; (G) The subject matter of the case involves either natural catastrophes, national trends, construction or class actions; (H) Discovery is anticipated to be complex; or (I) Any other matters which may be conducive to the just, efficient, and economical determination of the case. (2) Motion for designation. The motion for designation as Complex Litigation shall identify which of the criteria set forth in section (1) above applies to the case, and shall set forth wherever applicable, the following information: (A) A short statement of the nature of the case; (B) A list of parties served, in the process of being served or anticipated to be joined in the action; (C) Whether jury trial has been demanded or will be demanded; (D) A list of anticipated discovery, discovery in progress and completed discovery; (E) A list of anticipated motions, motions pending and hearing dates; and (F) Any other matters which may be conducive to the just, efficient, and economical determination of the action or proceeding, including the definition or limitation of issues. (3) Case management conferences. The judge assigned to the complex case shall conduct case management conference(s) to determine all deadlines under these rules at which the court may: (A) Establish deadlines for the following: (i) A meeting with the Judiciary Center for Alternative Dispute Resolution; and (ii) Other matters as deemed applicable by the court. (B) Discuss the following: (i) Appointment of special masters pursuant to Rules 26 and 53 of the Hawai'i Rules of Civil Procedure; (ii) Discovery schedule, including setting of any further case management conferences; and (iii) Other matters which may be conducive to the just, efficient, and economic determination of the case. (4) Complex case management order(s). The court may issue complex case management order(s) which may include, but shall not be limited to, the items set forth in section (3) above. The order(s) shall be binding as to all parties. The provisions of any order shall not excuse compliance with otherwise applicable rules or deadlines unless specifically ordered by the court. (d)Final naming of witnesses. 60 days prior to the discovery cut off date plaintiff must name all theretofore unnamed witnesses. 30 days prior to the discovery cut off date defendant must name all theretofore unnamed witnesses. (e)Further discovery. After the deadline for Final Naming of Witnesses, a Motion for Further Discovery can be filed upon a showing of good cause and substantial need In ruling on a Motion for Further Discovery, the court shall give due consideration to the factors under Rule 26(b)(2)(iii) of the Hawai.i Rules of Civil Procedure. (f)Exclusion of witnesses. Any party may move the court for an order excluding a witness named by an opposing party if said witness was or should have been known at an earlier date and allowing the witness to testify will cause substantial prejudice to the movant. The movant under this motion must make a statement concerning the prejudice that will be suffered should this new witness be allowed to testify, and why the opposing party either knew or should have known of the witness at an earlier date. The opposing attorney must submit an affidavit stating that the witness was not known at an earlier date, nor with due diligence should have been known. (g)Additional witness. At any time after the time for Final Naming of Witnesses, upon a showing of good cause and substantial need a party may move for the addition of a witness. (h)Deviation in time for filing. Deviations from the time requirements for the filing of any document under this rule shall be allowed only upon good cause shown. (i)Dismissal for want of prosecution. An action may be dismissed sua sponte with written notice to the parties if a notice requesting a Scheduling Conference or trial setting/status conference has not been filed as required by this Rule 12 Such dismissal may be set aside and the action reinstated by order of the court for good cause shown upon motion duly filed not later than 10 days from the date of the order of dismissal. (j)Discovery cut off. Discovery shall be cut off 60 days before the assigned trial date.(k)Additional party practice. Any party joining a new party after trial has been set must serve, with the initiating pleading, a copy of the current order(s) setting the trial date and pretrial deadlines. Within 30 days of filing a responsive pleading, any newly joined party may move for a continuance of the trial date or other deviation from the time requirements under these rules or orders setting pretrial deadlines.(I)Sanctions. Failure of a party or the party's attorney to comply with any section of this rule is deemed an undue interference with orderly procedures and unless good cause is shown, the court may, in its discretion, impose sanctions in accord with Rule 12.2(a)(6) of these Rules. Amended June 22, 1983, effective 7/1/1983, further amended May 24, 1984, effective 7/1/1984; further amended July 26, 1990, effective 9/1/1990; further amended September 11, 1996, effective 1/1/1997; further amended September 20, 1996, effective 1/1/1997; further amended May 15, 1997, effective 6/2/1997; further amended May 16, 2007, effective 7/1/2007; amended October 8, 2020, effective 1/1/2021; amended November 5, 2020, effective 7/1/2021; amended March 30, 2021, effective 1/1/2022; amended August 3, 2021, effective 1/1/2022.