Lone Pine orders are most often used in complex litigation to identify meritless claims and to streamline the litigation. Courts most often rely on Federal Rule of Civil Procedure 16 or similar state rules as providing the authority for issuing Lone Pine orders. For example, Federal Rule of Civil Procedure 16(c)(2)(L) and analogous state rules allow the court to “consider and take appropriate action on... adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems.”

The court crafted a unique sanction against the EEOC under Federal Rule of Civil Procedure (FRCP) 16(f) to curb further misconduct. The court's decision is the first published decision of its kind to impose sanctions for e-Discovery misconduct under FRCP 16, as opposed to the more traditional methods of awarding sanctions under FRCP 37 or the court's inherent authority to impose discovery sanctions. Significantly, a sanction under FRCP 16 does not require a finding of bad faith.

The Third Circuit recently affirmed the significant discretion that district court judges have to manage their dockets when it confirmed that “good cause” must be shown under Federal Rule Civ. P. 16(b)(4) to add a party or amend a pleading after the deadline in a district court’s scheduling order has passed rather than Rule 15(a)’s more liberal (“[t]he court should freely give leave when justice so requires”) standard. In Premier Comp Solutions, LLC v. UPMC, 970 F.3d 316 (3d Cir. 2020), the plaintiff made a motion to amend its complaint and add a party, relying on Rule 15 of the Federal Rules of Civil Procedure.

The Strudleys appealed the dismissal to the Colorado Court of Appeals, which reversed the trial court and reinstated the claims.Colorado Supreme Court Decision In considering whether the Colorado Rules of Civil Procedure authorize a trial court to issue a Lone Pine order, the Supreme Court first noted that Lone Pine orders developed from an unpublished opinion of the Superior Court of New Jersey in Lore v. Lone Pine Corp. Lone Pineorders, typically used in toxic tort cases, are issued to require plaintiffs to provide evidence sufficient to establish a prima facie case of injury, exposure and causation prior to conducting discovery. Authorized by Federal Rule of Civil Procedure 16(c), they are used to manage complex cases and mitigate potential burdens on the defendants and the court. In reaching the conclusion that the Colorado Rules of Civil Procedure do not allow for Lone Pine orders, the Court first undertook a textual comparison of Fed. R. Civ. P. 16 with Rule 16 of the Colorado Rules of Civil Procedure: The federal rules authorize Lone Pine orders because of a provision allowing the court to adopt “special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems.”

The court had a point: Lone Pine orders are most useful in larger proceedings, and the application of an order as detailed as this one to a relatively straightforward case probably contributed to the court’s feeling that the trial court overstepped. Regardless, the opinion is noteworthy for its detailed discussion of Lone Pine orders and their purported grounding in Federal Rule of Civil Procedure 16. Thus, at the core of its holding, the Colorado Supreme Court held that Colorado’s version of Rule 16 differed significantly from Federal Rule 16 and, for that reason, it could not support the trial court’s Lone Pine order.

Lassiter v. City of Philadelphia, 716 F.3d 53 (3d Cir. 2013). The initial conference under Federal Rule of Civil Procedure 16 is a time for the court to set a proper course for a case including, in the words of Rule 16, “formulating and simplifying the issues, and eliminating frivolous claims or defenses.” Here, at the initial conference, “without being prompted by either party, the District Court observed that the statute of limitations appeared to have expired but that defendants failed to raise the issue in their answer.”

Can rule changes streamline litigation to make discovery proportional to the case, improve case management, cut down foot-dragging in response to document requests, eliminate “over-preservation” of records and expedite deadlines? Effective December 1, 2015, amendments to Federal Rules of Civil Procedure 1, 4, 16, 26, 34, 37 and 84 seek to do exactly that. Because the Amendments will apply to pending cases as well as those commenced after December 1, every litigator and party needs to learn their implications now. Here are the seven most important takeaways from the 2015 Amendments. For the deep dive on these issues, join one of the national “Roadshow” events sponsored by the ABA Section of Litigation and Duke Law Center for Judicial Studies, such as Los Angeles, January 27, or San Francisco, January 28. But sign up soon, as these events have been selling out.Hello, “proportional,” narrowed discovery. Under pre-existing Rule 26(b)(1), the scope of discovery included “any nonprivileged information relevant to any party’s claims or defenses;” for good cause shown and pursuant to court order, discovery could expand to include information relevant to “the subject matter involved in the action.” The Amendments eliminate the “subject matter” proviso. More important, they define the scope of discove

Plaintiffs face dismissal if they cannot provide such evidence. While Federal Rule of Civil Procedure 16(c)(2) provides for the use of Lone Pine orders in subsection (L) by allowing trial courts to adopt “special procedures for managing potentially difficult actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems,” Colorado Rule of Civil Procedure 16 lacks such language, despite being modeled after the federal rule. Compare Fed. R. Civ. P. 16with C.R.C.P. 16.

Under Rule 16(b), the issuance of a scheduling order is, unlike under the Tennessee Rules of Civil Procedure, mandatory. Specifically, Rule 16(b) states that the district court "must issue a scheduling order" after receiving the Rule 26(f) report or after consulting with the parties' attorneys. The rule continues:The judge must issue the scheduling order as soon as practicable, but in any event within the earlier of 120 days after any defendant has been served with the complaint or 90 days after any defendant has appeared.Fed. R. Civ. P. 16(b)(2).There are required and permissible contents of the scheduling order as well. The scheduling order must include deadlines for the following:To join other parties;To amend the pleadings;To file motions; andTo complete discovery.Fed.

Corp. v. DeGeorge Fin’l Corp., 306 F.3d 99 (2d Cir. 2002)). The Advisory Committee notes indicate that the loss of information outside of a party’s control should not give rise to sanctions and that proportionality applies to the duty to preserve ESI. See FRCP 37, Advisory Comm. Note. Proportionality in this context may require a court to consider the sophistication of a party, the reasonableness of the steps taken by a party to preserve ESI and the resources of a party available for ESI preservation. See id. Additionally, the Advisory Committee Note makes clear that parties should not be sanctioned for the loss of ESI due to events outside of their control (e.g. flooding, “cloud” service failure, malware), but should consider the efforts taken to mitigate these risks. Id. Courts are now encouraged to include agreements regarding the preservation of ESI and to incorporate clawback agreements regarding privileged material under Federal Rule of Evidence 502 into the scheduling order (FRCP 16(b)(3)(B)(iii) and (iv)). Additionally, the discovery plan agreed to by the parties must address issues related to the preservation of ESI and the parties’ positions on clawback of privileged material (FRCP 26(f)(3)(C) and (D)).Timing is Everything – Or at Least Something to Consider The amendments make several changes to the timing of various events during the course of litigation of which practitioners should be aware. These include: The complaint must now be served within 90 days of being filed, not 120. (FRCP 4(m)); Scheduling conferences must be held in some manner that allows for “simultaneous communication” (FRCP 16(b)(1)(B) and Advisory Comm. Note) and scheduling orders must issue 90 days after the defendant is served with the complaint or 60 days after the defendant appears, rather than 120 days and 90 days, respectively (FRCP 16(b)(2)); Document requests under Rule 34 may now be issued to or by a party 21 days after the summons and complaint are served on that party (FRCP 26(d)(2));