There was a time when parties to an action pending in the New York State court system would, as a matter of course, ignore a discovery request until the court set a preliminary conference. Once the preliminary conference was scheduled, the parties, often represented by the most junior members of a law firm, would agree, with the court's approval, upon a timetable for discovery. And, unlike federal court scheduling orders, even when a preliminary conference order was agreed to amongst the parties, observance of the exact terms of the stipulated order, which is not appealable, was more common in the breach than in compliance. A number of recent cases, however, illustrate the consequences of taking the preliminary conference process lightly.
The consequences of failing to be prepared for a preliminary conference, to promptly comply with the terms of the order in a meaningful way and to diary for all necessary follow up proceedings can be devastating. In the past two years, the courts have imposed sanctions with increasing frequency based upon conduct directly related to the preliminary conference procedure. By statute, the trial and appellate courts have been provided a range of suitable penalties where a party fails to comply with a court order, ". . . wilfully fails to disclose information which the court finds ought to have been disclosed" or fails to appear at any scheduled call of the calendar. The failure to proffer a valid excuse for non-compliance permits the inference that failure to comply was willful. The decision as to whether or not to impose sanctions, ranging from costs to dismissal of a case, is within the discretion of the court. While the sanction should generally be commensurate with the nature and extent of the disobedience, the courts have upheld the ultimate sanction of striking a pleading for defaults related to the preliminary conference process ranging from failure to appear to failure to timely comply to failure to adequately respond. Faced with the potential dismissal of the complaint or defense, the fact that a motion to strike a pleading must be made on notice and cannot be incorporated in the terms of a preliminary conference order is of small comfort.
On the rare occasion a discovery sanction case reaches the Court of Appeals, the issue is not whether the sanction was warranted but rather whether the trial or appellate court properly exercised its discretion in imposing the sanction. Last November, in Kihl v. Pfeffer, the Court of Appeals took the opportunity to reiterate the broad discretion vested in the lower court and affirmed the dismissal of plaintiff's complaint against defendant auto manufacturer based upon the failure to timely provide interrogatory responses in accordance with the terms of a preliminary conference order and a subsequent order directing compliance. The message relayed by the Court of Appeals was loud and clear: If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a "court may make such orders as are just," including dismissal of an action (CPLR 3126).
At first glance, Kihl may appear to be the just desserts for a recalcitrant litigant. However, a closer review of the decision and the procedural history of the case indicates the plaintiff's difficulties originated at the time of the preliminary conference.
To avoid the pitfalls associated with defaults related to the preliminary conference order, one must redefine the value of the preliminary conference to the litigation process. Instead of looking at the file while waiting for one's adversary in the courthouse, the preliminary conference should be viewed as the opportunity to take control of the litigation: to examine what proof is required to prosecute or defend the case and ascertain the most efficient means of obtaining the necessary discovery. As a result, preparation for the preliminary conference should begin at the time the discovery responses are first drafted.
More than simply setting deadlines for discovery, at a preliminary conference, litigants are expected to consider and be prepared to discuss:
None of these tasks are appropriately assigned at the last minute to an associate unfamiliar with the file.
It is anticipated that the importance of the preliminary conference will increase in light of the recent implementation of the Comprehensive Civil Justice Programs in the various Judicial Districts in the State of New York in accordance with the mandates of the Differentiated Case Management Rule promulgated last year.
Under the Differentiated Case Management Rule, a preliminary conference must be scheduled within 45 days after a Request for Judicial Intervention is filed. At the preliminary conference, civil cases subject to the program, are assigned by the court to one of three classifications: Expedited - discovery to be completed within 8 months; Standard - discovery to be completed within 12 months; and Complex - discovery to be completed within 15 months. A compliance conference will be scheduled no later than 60 days before completion of discovery in order "to monitor the progress of discovery, explore potential settlement, and set a deadline for the filing of the Note of Issue." Notwithstanding the existence of the compliance conference, it is expected that the time frames will be adhered to unless otherwise ordered by the court.
Once discovery demands directed to the information required for one's case are served, detailed reminder letters should be sent should the adversary fail to respond. If the responses are sent, but remain deficient, a letter should be immediately sent specifying the outstanding discovery and the basis upon which discovery is appropriate. The nature of each demand in question should be evident from a review of the letter. Upon implementation of this procedure, at the time of the preliminary conference, an outline of what remains outstanding will be evident from a review of the correspondence to counsel and may be easily incorporated into the handwritten order.
Once a preliminary conference is demanded, it is a good practice to alert the client to the request and suggest that the client advise of any time periods where a deposition date would be inconvenient. In addition to keeping the client abreast of the developments in the litigation, such a letter will at least minimize the need to adjourn the deposition because of the unavailability of the client. At the same time, the existence of any outstanding discovery should be reiterated to the adversary in detail in writing. If discovery demands are necessary but not yet prepared or served, be certain service is effected sufficiently in advance of the preliminary conference date to ensure that the adversary has had time to review the propriety of the demands before the conference. In that manner, reasonable parameters for compliance may be established.
In completing the preliminary conference order, be wary of the adversary who fixes a date for service of discovery demands but then insists that a date be set for compliance with demands not yet served. Although the better practice is to insist upon seeing the discovery demands before an outside date is set for compliance, in many venues litigants are not permitted to vary the terms of the preliminary conference order form. In those circumstances, if the terms of the order cannot be negotiated, be certain that the response includes the right to timely raise valid objection to unduly burdensome or onerous demands.
Once the order is completed and signed by the court, treat the preliminary conference order as one would any other order of the court. Develop procedures within your office to ensure that the terms of every preliminary conference order are docketed as soon as the attorney returns to the office. In addition to the deadline dates, reminder dates should be established and docketed providing sufficient lead time to complete the necessary responses.
The discovery timetable set by the preliminary conference order should be provided to the client as soon as the conference is held, together with a list of what and by when the client is required to produce information. If it is apparent that demands served after the preliminary conference order are improper, file timely written objections. Substantive responses should be prepared as soon as the order is entered into and, in any event, before the deadline set by the court. It is not enough to provide a timely response to a discovery order; the response must also " . . . evince[s] a good-faith effort to address the requests meaningfully." If a deadline cannot be met, obtain the written consent of the adversary for any extension and the approval of the court if required by the terms of the order or the court's rules.
If the adversary has not timely fulfilled his or her obligations under the terms of the order, do not assume that the court will support an adjournment of the depositions. Rather, attempt to delineate in the preliminary conference order what information is a necessary predicate to conducting the deposition and provide in the order that the deposition schedule is contingent upon timely production of the information in question. Without such a safeguard, a litigant may be required to proceed to depositions with inadequate information. On the other hand, be judicious in selecting what information is absolutely necessary before the deposition is conducted. The goal of the court is to move the discovery along and a wholesale deferral of depositions until all documentary discovery is completed will likely not be supported by the court.
The parameters for the completion of discovery set by the Differentiated Case Management Rule are unlike any that have been imposed on practitioners in the recent history of the New York State Courts. The implementation of the rules was not intended to place attorneys at a disadvantage or to prevent the proper representation of one's client. The system designed by the Office of Court Administration depends upon the ability of litigators to resolve discovery and scheduling issues amongst themselves without the necessity of court intervention but within the parameters established by the Rule. Civility and professionalism go hand in hand. Civility ". . . is not some bumper-sticker slogan, 'Have you hugged your adversary today?' Civility is the mark of an accomplished and superb professional, but it is even more than this. It is an end in itself. Civility has deep roots in the idea of respect for the individual." Careful planning and preparation, combined with a new respect for the preliminary conference process and the always important goal of professionalism, will enable us to work within the system and provide our clients with the excellent representation they deserve.