3.1 Initial Scheduling Orders

• Library: Federal Civil Practice in Virginia (Virginia CLE) (2023 Ed.)

3.1 INITIAL SCHEDULING ORDERS

While the parties must confer "as soon as practicable" by participating in a Fed. R. Civ. P. 26(f) conference, the manner by which it is implemented differs significantly between the districts and even between the divisions.

3.101 Eastern District.

Judges in the Eastern District of Virginia formally set the litigation process in motion by issuing initial scheduling orders. Among other things, these orders set a date for a scheduling conference with the court pursuant to Fed. R. Civ. P. 16(b) (a "Rule 16(b) scheduling conference" or "initial pretrial conference"), require the parties to confer in advance of the Fed. R. Civ. P. 16(b) scheduling conference pursuant to Fed. R. Civ. P. 26(f), and set other deadlines.

Counsel should be aware that the Alexandria, Richmond, and Norfolk divisions of the court take different approaches to scheduling. While the initial scheduling orders entered by the Richmond judges and Norfolk division generally address only the Fed. R. Civ. P. 16(b) scheduling conference date and matters concerning the parties' Fed. R. Civ. P. 26(f) conference, the initial scheduling order entered in the Alexandria division addresses a number of other matters, including discovery cutoff dates, limitations on depositions and interrogatories, and trial exhibits. ⁸⁴⁴ In the Richmond and Norfolk divisions, those matters are addressed in the scheduling orders that are entered after the parties' initial pretrial conference with the court.

A. Alexandria Division.

In the Alexandria division, an initial scheduling order will be issued by the judge assigned to the case soon after there is an appearance of counsel for the defendant. ⁸⁴⁵

The initial scheduling order:

1. Will set forth a date for an initial pretrial conference before a magistrate judge (usually on a Wednesday at 11 a.m. approximately four weeks after issuance of the order);

2. Requires the parties to confer pursuant to F ed. R. Civ. P. 26(f) to consider and discuss claims, defenses, possibilities of prompt settlement or resolution of the case, trial before a magistrate judge, F ed. R. Civ. P. 26(a)(1) disclosures, and a discovery plan;

3. Sets a discovery cutoff date (approximately three months after the F ed. R. Civ. P. 16(b) pretrial conference);

4. Requires parties to file a discovery plan one week before the F ed. R. Civ. P. 16(b) conference;

5. Directs any party required to file an answer to do so within 20 days;

6. Provides that discovery may begin upon receipt of the initial order;

7. Limits parties to five nonparty, nonexpert witness depositions and thirty interrogatories (including parts and subparts), except with leave of court;

8. Sets the date of the final pretrial conference (approximately 4½ months after the F ed. R. Civ. P. 16(b) conference and a week after the close of discovery);

9. Provides that parties must bring to the final pretrial conference their F ed. R. Civ. P. 26(a)(3) disclosures and list of exhibits and witnesses and written stipulation of uncontested facts. Exhibits should be exchanged before the conference. Objections to exhibits must be filed within 10 days of the conference or will stand admitted;

10. Provides that trial will occur within four to eight weeks of the final pretrial conference; and

11. Directs parties to redact personal identifiers.

B. Richmond Division.

1. Judge Gibney.

The parties receive an initial scheduling order (styled as "Initial Scheduling Order") notifying counsel of the initial pretrial conference date, usually scheduled for 30 to 60 days after receipt of the order. The initial pretrial conference is held in chambers, but counsel whose office is more...