Stipulations, participation in good faith

STIPULATIONS: Parties not participating in good faith in proposed stipulations, given one more chance to avoid sanctions… Molloy.

The Court noted at the preliminary pretrial conference 12/21/12 that BNSF had failed to file any proposed stipulations of fact as required by LR 16.2(b)(1)(G). In its preliminary pretrial statement it stated only that “stipulations may be appropriate as discovery progresses.” That might be true, but the LR require more — proposed stipulations are appropriate (and required) at the preliminary pretrial conference. Plaintiffs filed 17 proposed stipulations. BN agreed to 3, with some revision. Rule 16(f)(1)(B) permits a court to sanction a party that “is substantially unprepared to participate — or does not participate in good faith — in the conference.” Rather than sanction BN at the conference, the Court ordered the parties to confer and file additional stipulations within 10 days. BN filed 17 proposed stipulations — 4 pages worth — 12/28/12. The parties then filed 4 joint stipulations 1/4/13, which are almost identical to the 3 stipulations to which the parties agreed at the conference. While BN is at fault for not initially proposing any stipulations, Plaintiffs now appear to be at fault. The fact that they could not agree to even one of BN’s proposed additional stipulations suggests that they are not participating in good faith.

The parties have now filed a combined 9 pages of proposed stipulations, some of which overlap, but they can agree to only a few basic facts: BN’s corporate structure, BN’s ownership of a tie-treating plant, and the fact that zinc and creosote entered the groundwater under the plant and migrated off the plant. These are thin stipulations in light of what both parties have proposed, as well as the record before the Court.

The Court will not force a party to agree to the other’s proposed facts, but the record certainly suggests that there are additional facts to which both parties can agree. The rules require the parties to make an effort to work together. The Court will give the parties one more chance to show that they can do so. They shall file additional joint stipulations by 1/14. If a party has proposed stipulations to which the opposing party cannot agree, the opposing party shall file a detailed explanation of why it cannot agree to that proposed stipulation. If the parties fail to act in good faith in complying with this order, the Court may impose sanctions under 16(f)(1) (B). The Court will not issue a scheduling order until the parties have demonstrated good faith compliance with this order.

Graham et al v. BNSF, 40 MFR 126, 1/7/13.

David Slovak, Mark Kovacich, and Tom Lewis (Lewis, Slovak, Kovacich & Marr), Great Falls, for Plaintiffs; Daniel Hoven, William Tietz, and Christy McCann (Browning, Kaleczyc, Berry & Hoven), Helena, for BN.