Planning Discovery: The Initial Scheduling or Preliminary Conference

Courts today recognize that it helps to plan how discovery will progress.  In federal court, this is done at an Initial Scheduling Conference.  In New York State courts, it is done at a Preliminary Conference.

THE INITIAL SCHEDULING CONFERENCE:  In federal court, the initial scheduling conference is mandatory, and automatic.  The parties cannot engage in discovery until this conference has taken place.  How quickly this conference takes place largely depends on the availability of the the judge or the magistrate assigned to oversee discovery.

After the conference is scheduled, but before it is held, the parties are supposed to discuss their respective discovery needs with one another, and develop a plan for the progress of discovery, including goals and deadlines.  In part, this process includes reviewing the judge’s or magistrate’s standard form initial scheduling order, agreeing on the dates required by the form order, or agreeing to modifications to the standard form to accommodate the peculiarities of their particular case.  The end product of this process is a proposed initial scheduling order, which one party, by agreement, files with the court in advance of the conference so that is it available to the judge or magistrate at the conference, and serves as the basis for discussion at the conference.  Although this process may sound involved, it is often taken care of in one or two telephone calls.

Although in more complicated cases the conference may be more involved, the initial scheduling conference itself is often a short, uncomplicated affair, lasting maybe 30 minutes or so.  At the conference, the court gives each party an opportunity to describe their respective positions, and discusses the content of the initial scheduling order.  The court does not simply accept the positions of the parties, or their proposed scheduling order.  The court is probing the parties to determine whether there are any discovery issues that the parties have overlooked.  The end product of this conference is an scheduling order.  The order generally sets deadlines for the completion of various items of discovery.  It also sets dates for one or two additional conferences, including a conference often referred to as a final pre-trial conference, but which might more accurately be called a conference to certify the completion of discovery.

THE PRELIMINARY CONFERENCE:  The preliminary conference takes place only in cases pending in New York State Supreme Court.  It is basically mandatory, but is not automatic.  It isn’t scheduled until a party requests it in a package of documents including a Request for Judicial Intervention (“RJI”) and a request for preliminary confrence.  Generally, no one requests a conference until the case is ready for certification or a problem comes up concerning discovery.  The discovery problem may only be that discovery is taking too long.  The preliminary conference might be requested early in the case, or it might not be scheduled until discovery is effectively done.  In some cases, the preliminary conference serves as the certification conference, where the parties certify that discovery is done, and the case is ready for trial.

Exactly how the preliminary conference is conducted varies by county.  In some counties, the preliminary conference isn’t even held in a courtroom.  In some counties, when a party, any party, checks-in, that party is given a blank form preliminary conference order.  While that party is waiting, that party might start filling in the order.  Once all parties have arrived, the parties negotiate the final content of the form order.  In other counties, all parties have to first arrive before checking in, and obtaining a form order.  They then negotiate the contents of the order.  In either case, once the parties have reached agreement, they sign-off on the order, and return it to a court clerk.  The order is entered in one way or another.  Officially, a judge signs the order, but, in practice, the judge’s order may be a rubber stamp affixed by a court clerk.  In this part of the process, the court sets dates for future conferences.  After the form order is processed, each party receives a copy of the order as entered by the court.  In many counties, the parties do not even see a judge.

In most cases, most of the time spent on a preliminary conference is spent waiting.  The process of negotiating and filing a proposed order may take only a few minutes.

There is usually nothing in lower state courts as formal as a preliminary conference.  However, after discussion with the parties at a conference, when warranted, a judge might issue an order, generally not a form, which functions at least in some ways like a preliminary conference order, that is, establishing a schedule for discovery, including deadlines.


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