Pretrials

PRETRIALS

Ortega v. O’Connor, 50 F.3d 778 (9th Cir. 1995), aff’d, 146 F.3d 1149 (9th Cir. 1998)

Exclusion of witnesses for failure to serve list on opposing attorney improper where proof

of service filed showing service (N.D. Cal. Rules interpreted)

Rogers v. Raymack Industries, Inc., 922 F.2d 1426 (9th Cir. 1991)

Rule 16 of the FRCP provides that a final pretrial order controls the subsequent course of

action in a trial unless modified “to prevent manifest injustice.” See FRCP 16(e). Local Rule 235-

8 of the Northern District of California incorporates Federal Rule 16 and provides that “the parties

shall, not less than seven calendar days prior to the date on which the trial is scheduled to

commence…exchange copies of all exhibits to be offered and all schedules, summaries, diagrams

and charts to be used at the trial other than for impeachment or rebuttal.”

We have applied a 3-part test to determine whether a party may present new evidence or

testimony not contained in the pretrial order. Modification is permitted only when (1) the

opposing party would not sustain substantial injury, (2) refusal might result in injustice, and (3)

inconvenience to the court is slight. (cites omitted)

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