4.8 Sanctions Under Rule 16(f)

• Library: Attorney Fees and Sanctions - Virginia and Federal Courts (Virginia CLE) (2016 Ed.)

4.8 SANCTIONS UNDER RULE 16(f)

4.801 In General. Under Rule 16(f)(1), "[o]n motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: (A) fails to appear at a scheduling or other pretrial conference; (B) is substantially unprepared to participate—or does not participate in good faith—in the conference; or (C) fails to obey a scheduling or other pretrial order." Under Rule 16(f)(2), "the court must order the party, its attorney, or both to pay the reasonable expenses—including attorney's fees—incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust."

Courts have "wide latitude in imposing sanctions on parties who fail to comply with pretrial orders and procedures." ³²⁸ "While on the whole Rule 16 is concerned with the mechanics of pretrial scheduling and planning, its spirit, intent and purpose is clearly designed to be broadly remedial, allowing courts to actively manage the preparation of cases for trial." ³²⁹ Rule 16(f) authorizes any sanction available under Rule 37(b)(2)(A)(ii)-(vii), including dismissal ³³⁰ as well as expenses incurred because of noncompliance, and also authorizes attorney fees in lieu of dismissal. ³³¹ In determining whether to

[Page 301]

impose sanctions under Rule 16(f), the court considers substantially the same factors as those considered under Rule 37(c). ³³²

Because a party must disclose its experts and their reports "in the sequence that the court orders" under Rule 26(a)(2)(C), a party that fails to make a timely and complete disclosure of an expert may be subject to a range of sanctions under Rules 16(f) and 37(c), including the exclusion of the expert's testimony under Rule...