Hon. Dominic W Lanza · U.S. District Court for the District of Arizona
=== Case Management Order ===
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Plaintiff, CASE MANAGEMENT ORDER No. CV v. , Defendants. The Court enters the following Case Management Order to govern the litigation in this case: 1. Initial Disclosures. The deadline for making the initial disclosures required by Federal Rule of Civil Procedure 26(a)(1) is 14 days from the date of this Order. 2. Deadline for Joinder, Amending Pleadings, and Filing Supplemental Pleadings. The deadline for joining parties, amending pleadings, and filing supplemental pleadings is 60 days from the date of this Order. 3. Federal Rule of Evidence 502(d) Non-Waiver Order. The Court orders that a communication or information covered by the attorney-client privilege or work-product protection that is disclosed in connection with the litigation pending before the Court does not waive the privilege or protection in this or any other federal or state proceeding. This provision does not require any party agreement, and it avoids the need to litigate whether an inadvertent production was reasonable. By reducing the risk of waiver, this Order affords parties the opportunity to reduce the cost of discovery by reducing preproduction 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 privilege review. 4. Discovery Limitations. Depositions shall be limited to seven hours each, as provided in Rule 30(d)(1) of the Federal Rules of Civil Procedure. A party may serve on any other party up to 25 interrogatories, including subparts, 25 requests for production of documents, including subparts, and 25 requests for admissions, including subparts. The limitations set forth in this paragraph may be increased by mutual agreement of the parties, but such an increase will not result in an extension of the discovery deadlines set forth in this Order. 5. Fact Discovery. The deadline for completion of fact discovery, including discovery by subpoena and all disclosure required under Rule 26(a)(3), shall be ____________. To ensure compliance with this deadline, the following rules shall apply: a. Depositions: All depositions shall be scheduled to start at least five working days before the discovery deadline. A deposition started five days before the deadline may continue up until the deadline, as necessary. b. Written Discovery: All interrogatories, requests for production of documents, and requests for admissions shall be served at least 45 days before the fact discovery deadline. c. Notwithstanding Local Rule of Civil Procedure 7.3, the parties may mutually agree in writing, without Court approval, to extend the time for providing discovery in response to requests under Rules 33, 34, and 36 of the Federal Rules of Civil Procedure. Such agreed-upon extensions, however, shall not alter or extend the deadlines set forth in this Order. d. Notwithstanding any provisions of the Federal Rules of Civil Procedure, non- party witnesses shall not be permitted to attend (either physically, electronically, or otherwise) the deposition of any other witness in this case without an order of this Court to the contrary. 6. Expert Disclosures, Expert Discovery, and Motions Challenging Expert Testimony. a. The party with the burden of proof on an issue shall provide full and complete - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 expert disclosures, as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure, no later than _____________. b. The responding party (not having the burden of proof on the issue) shall provide full and complete expert disclosures, as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure, no later than _____________. c. The party with the burden of proof on the issue shall make its rebuttal expert disclosures, if any, no later than _____________. Rebuttal experts shall be limited to responding to opinions stated by the opposing party’s experts. d. No depositions of any expert witnesses shall occur before the aforementioned disclosures concerning expert witnesses are made. e. Expert depositions shall be completed no later than ______________. All expert depositions shall be scheduled to commence at least five working days before this deadline. f. Disclosures under Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure must include the identities of treating physicians and other witnesses who will provide testimony under Federal Rules of Evidence 702, 703, or 705, but who are not required to provide expert reports under Rule 26(a)(2)(B). Rule 26(a)(2)(C) disclosures are required for such witnesses on the dates set forth above. Rule 26(a)(2)(C) disclosures must identify not only the subjects on which the witness will testify, but must also provide a summary of the facts and opinions to which the expert will testify. The summary, although not as detailed as a Rule 26(a)(2)(B) report, must be sufficiently detailed to provide fair notice of what the expert will say at trial.1 g. As stated in the Advisory Committee Notes to Rule 26 of the Federal Rules 1 In Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817 (9th Cir. 2011), the Ninth Circuit held that “a treating physician is only exempt from Rule 26(a)(2)(B)’s written report requirement to the extent that his opinions were formed during the course of treatment.” Id. at 826. Thus, for opinions formed outside the course of treatment, Rule 26(a)(2)(B) written reports are required. Id. For opinions formed during the course of treatment, Rule 26(a)(2)(C) disclosures will suffice. - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of Civil Procedure (1993 amendment), expert reports under Rule 26(a)(2)(B) must set forth “the testimony the witness is expected to present during direct examination, together with the reasons therefor.” Full and complete disclosures of such testimony are required on the dates set forth above. Absent extraordinary circumstances, parties will not be permitted to supplement expert reports after these dates. The Court notes, however, that it usually permits parties to present opinions of their experts that were elicited by opposing counsel during depositions of the experts. Counsel should depose experts with this fact in mind. h. Each side shall be limited to one retained or specifically employed expert witness per issue. i. An untimely-disclosed expert will not be permitted to testify unless the party offering the witness demonstrates that (a) the necessity of the expert witness could not have been reasonably anticipated at the time of the disclosure deadline, (b) the opposing counsel or unrepresented parties were promptly notified upon discovery of the expert witness, and (c) the expert witness was promptly proffered for deposition. See Wong v. Regents of Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005). j. Any motions challenging expert testimony must be filed no later than 28 days after the deadline for close of expert discovery. k. Rule 35 physical or mental examination will be noticed by _____________. 7. Discovery Disputes. a. The parties shall not file written discovery motions without leave of the Court. Except during a deposition, if a discovery dispute arises and cannot be resolved despite sincere efforts to resolve the matter through personal consultation (in person or by telephone), the parties shall jointly file (1) a brief written summary of the dispute, not to exceed three pages per side,2 explaining the position taken by each party, and (2) a joint written certification that counsel or the parties have attempted to resolve the matter through 2 The discovery dispute summary shall adhere to the formatting requirements of LRCiv 7.1(b)(1). Discovery dispute filings that do not conform to the procedures outlined in this paragraph, including the page limitation, may be summarily stricken. - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 personal consultation and sincere efforts as required by Local Rule of Civil Procedure 7.2(j) and have reached an impasse. If the opposing party has refused to personally consult, the party seeking relief shall describe the efforts made to obtain personal consultation. Upon review of the written submission, the Court may set a telephonic conference, order written briefing, or decide the dispute without conference or briefing. Any briefing ordered by the Court shall also comply with Local Rule of Civil Procedure 7.2(j). b. If a discovery dispute arises in the course of a deposition and requires an immediate ruling of the Court, the parties shall jointly telephone the Court to request a telephone conference regarding the dispute. c. Absent extraordinary circumstances, the Court will not entertain fact discovery disputes after the deadline for completion of fact discovery and will not entertain expert discovery disputes after the deadline for completion of expert discovery. Delay in presenting discovery disputes for resolution is not a basis for extending discovery deadlines. 8. Dispositive Motions. a. b. Dispositive motions shall be filed no later than ______________. No party shall file more than one motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure without leave of the Court. c. Local Rule of Civil Procedure 56.1 is suspended, except for subsection (d). The Court will decide summary judgment motions under Federal Rule of Civil Procedure 56 only. In other words, the parties may not file separate statements of facts or separate controverting statements of facts, and instead must include all facts in the motion, response, or reply itself. All evidence to support a motion or response that is not already part of the record must be attached to the briefs. The evidence may include only relevant excerpts rather than full documents. The only evidence that may be attached to a reply is evidence intended to rebut arguments raised for the first time in the non-movant’s response. Because no separate controverting statement of facts will be permitted, the responding party must carefully address all material facts raised in the motion. Likewise, the reply must carefully - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 address all material facts raised in the response. Any fact that is ignored may be deemed uncontested. Procedurally, immediately following the motion should be a numerical table of contents for the exhibits. The table of contents shall include only a title for each exhibit, not a description. Following the table of contents should be each exhibit (unless the document is already part of the record), numbered individually. Immediately following the response to the motion should be an alphabetical table of contents (again, the table of contents shall include only a title for each exhibit, not a description). Following the table of contents should be each exhibit (unless the document is already part of the record), labeled alphabetically. By way of example, citations to exhibits attached to the motion would be “(Ex. 1 at 7)” and citations to exhibits attached to the response would be “(Ex. D at 3).” Citations to documents that are already part of the record shall reference the docket number where the document can be found and include a pin cite to the relevant page—for example, “(Doc. 15 at 4).” All papers shall be submitted via filing on the docket. Do not send paper courtesy copies. d. The parties shall not notice oral argument on any motion. Instead, a party desiring oral argument shall place the words “Oral Argument Requested” immediately below the title of the motion pursuant to Local Rule of Civil Procedure 7.2(f). The Court may decline the request and decide the motion without holding oral argument. If the request is granted, the Court will issue a minute entry informing the parties of the argument date and time. 9. Motions for Attorneys’ Fees. All motions for an award of attorneys’ fees shall be accompanied by an electronic Microsoft Excel spreadsheet, to be emailed to the Court and opposing counsel, containing an itemized statement of legal services with all information required by Local Rule 54.2(e)(1). This spreadsheet shall be organized with rows and columns and shall automatically total the amount of fees requested to enable the Court to efficiently review and recompute, if needed, the total amount of any award after disallowing any individual billing entries. This spreadsheet does not relieve the moving party of its burden under Local Rule 54.2(d) to attach all necessary supporting - 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 documentation to its motion. A party opposing a motion for attorneys’ fees shall email to the Court and opposing counsel a copy of the moving party’s spreadsheet, adding any objections to each contested billing entry (next to each row, in an additional column) to enable the Court to efficiently review the objections. This spreadsheet does not relieve the non-moving party of the requirements of Local Rule 54.2(f) concerning its responsive memorandum. 10. Tentative Rulings. Before holding oral argument, the Court sometimes issues a “tentative ruling”—a working draft of the order resolving the pending motion(s)—to allow the parties to focus their argument on the issues that seem salient to the Court and to maximize their ability to address any perceived errors in the Court’s logic. If a tentative ruling issues, it is not an invitation to submit additional evidence or briefing. If the parties choose not to proceed with oral argument after reviewing the tentative ruling, the parties may stipulate to issuance of an order substantively identical to the tentative ruling.3 11. Good Faith Settlement Talks. All parties and their counsel shall meet in person and engage in good faith settlement talks no later than ______________. Upon completion of such settlement talks, and in no event later than five working days after the deadline set forth in the preceding sentence, the parties shall file with the Court a joint report on settlement talks executed by or on behalf of all counsel. The report shall inform the Court that good faith settlement talks have been held and shall report on the outcome of such talks. The parties shall indicate whether assistance from the Court is needed in seeking settlement of the case. The Court will set a settlement conference before a magistrate judge upon request of all parties. The parties are reminded that they are encouraged to discuss settlement at all times during the pendency of the litigation, but the Court will not extend the case management deadlines if and when the parties elect to pursue settlement efforts, including a settlement conference before a magistrate judge. The parties should plan their 3 The Court might make stylistic changes before finalizing the order. If the tentative ruling contains any factual error, the parties may note the error in the stipulation to allow for correction. - 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 settlement efforts accordingly. The parties shall promptly notify the Court if settlement is reached. 12. The Deadlines Are Real. The Court intends to enforce the deadlines set forth in this Order, and the parties should plan their litigation activities accordingly. 13. Briefing Requirements. a. All memoranda filed with the Court shall comply with Local Rule of Civil Procedure 7.1(b) requiring 13-point font in text and footnotes. b. Citations in support of any assertion in the text shall be included in the text, not in footnotes. c. To ensure timely case processing, a party moving for an extension of time, enlargement of page limitations, leave to amend, or leave to file a document under seal shall indicate in the motion whether the non-movant opposes the request and intends to file a written response. If such a motion does not so indicate, it may be denied for failure to comply with this Order. 14. Deadline for Notice of Readiness for Trial. The Plaintiff(s) shall notify the Court that the parties are ready to proceed to trial. The Plaintiff(s) shall file and serve this notice within seven days after the dispositive motion deadline if no dispositive motions are pending on that date. If dispositive motions are pending, Plaintiff(s) shall file and serve such notice within seven days after the resolution of the dispositive motions. The Court will then issue an order identifying a window of time when the Court is available for trial and instructing the parties to propose dates from within this window when all parties, counsel, and witnesses are available to begin trial. The Court will then issue an order setting a firm date for trial and the final pretrial conference that (a) sets deadlines for briefing motions in limine, (b) includes a form for the completion of the parties’ joint proposed final pretrial order, and (c) otherwise instructs the parties concerning their duties in preparing for the final pretrial conference. 15. Dismissal for Failure to Meet Deadlines. The parties are warned that failure to meet any of the deadlines in this Order or in the Federal or Local Rules of Civil Procedure - 8 - without substantial justification may result in sanctions, including dismissal of the action or entry of default. 16. Paper Courtesy Copies. Please do not send paper courtesy copies of filings or proposed orders unless specifically ordered to do so by the Court. Dated this ___ day of ____, ____. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 9 -
=== Case Management Order - ERISA Case ===
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Plaintiff, CASE MANAGEMENT ORDER No. CV , v. , Defendant. The Court enters the following Case Management Order to govern the litigation in this case: 1. Deadline for Joinder, Amending Pleadings, and Filing Supplemental Pleadings. The deadline for joining parties, amending pleadings, and filing supplemental pleadings is _______________ days from the date of this Order. 2. Federal Rule of Evidence 502(d) Non-Waiver Order. The Court orders that a communication or information covered by the attorney-client privilege or work-product protection that is disclosed in connection with the litigation pending before the Court does not waive the privilege or protection in this or any other federal or state proceeding. This provision does not require any party agreement, and it avoids the need to litigate whether an inadvertent production was reasonable. By reducing the risk of waiver, this Order affords parties the opportunity to reduce the cost of discovery by reducing preproduction privilege review. 3. Initial Briefs Regarding Discovery: If there is a dispute as to the need for and/or 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 scope of discovery and/or as to the standard of review, the deadline for Plaintiff(s) to file a motion summarizing its position, shall be ______________. This motion may be no longer than seven pages long, must be entitled “Motion for ERISA Discovery/Standard of Review Determination,” must identify—with specificity—any interrogatories, document requests, requests for admission, and/or depositions that Plaintiff(s) would like to pursue, and must set forth any legal authority supporting Plaintiff(s)’ position. The deadline for Defendant(s) to file a response, which may not exceed seven pages in length, shall be _________. No replies may be filed. 4. Motions to Supplement the Administrative Record: Any motion to supplement the administrative record shall be filed by _________________. 5. 6. No Experts: No expert reports may be filed. Fact Discovery. If fact discovery is authorized by the Court or conducted via the joint agreement of the parties, the deadline for completion shall be _____________. To ensure compliance with this deadline, the following rules shall apply: a. Depositions: All depositions shall be scheduled to start at least five working days before the discovery deadline. A deposition started five days before the deadline may continue up until the deadline, as necessary. b. Written Discovery: All interrogatories, requests for production of documents, and requests for admissions shall be served at least 45 days before the fact discovery deadline. c. Notwithstanding Local Rule of Civil Procedure 7.3, the parties may mutually agree in writing, without Court approval, to extend the time for providing discovery in response to requests under Rules 33, 34, and 36 of the Federal Rules of Civil Procedure. Such agreed-upon extensions, however, shall not alter or extend the deadlines set forth in this Order. d. Notwithstanding any provisions of the Federal Rules of Civil Procedure, non- party witnesses shall not be permitted to attend (either physically, electronically, or otherwise) the deposition of any other witness in this case without an order of this Court to - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the contrary. 7. Discovery Disputes Following the Initial Submission of Briefs. a. The parties shall not file written discovery motions without leave of the Court. Except during a deposition, if a discovery dispute arises and cannot be resolved despite sincere efforts to resolve the matter through personal consultation (in person or by telephone), the parties shall jointly file (1) a brief written summary of the dispute, not to exceed three pages per side,1 explaining the position taken by each party, and (2) a joint written certification that counsel or the parties have attempted to resolve the matter through personal consultation and sincere efforts as required by Local Rule of Civil Procedure 7.2(j) and have reached an impasse. If the opposing party has refused to personally consult, the party seeking relief shall describe the efforts made to obtain personal consultation. Upon review of the written submission, the Court may set a telephonic conference, order written briefing, or decide the dispute without conference or briefing. Any briefing ordered by the Court shall also comply with Local Rule of Civil Procedure 7.2(j). b. If a discovery dispute arises in the course of a deposition and requires an immediate ruling of the Court, the parties shall jointly telephone the Court to request a telephone conference regarding the dispute. c. Absent extraordinary circumstances, the Court will not entertain discovery disputes after the deadline for completion of fact discovery. Delay in presenting discovery disputes for resolution is not a basis for extending discovery deadlines. 8. Filing the Administrative Record. The deadline for filing the administrative record shall be _______________. 9. Dispositive Motions. a. Plaintiff(s)’ opening brief shall be filed no later than _____________. Defendant(s)’ response brief shall be filed no later than_____________. Plaintiff(s)’ reply 1 The discovery dispute summary shall adhere to the formatting requirements of LRCiv 7.1(b)(1). Discovery dispute filings that do not conform to the procedures outlined in this paragraph, including the page limitation, may be summarily stricken. - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 shall be filed no later than _____________. b. With respect to page limits, Plaintiff(s)’ opening brief and Defendant(s)’ response brief shall be no longer than ________________, and Plaintiff(s)’ reply shall be no longer than ________________. c. The parties may not file separate statements of facts or separate controverting statements of facts, and instead must include all facts in the opening brief, response, or reply itself, supported by citations to the administrative record. d. The parties shall not notice oral argument on any motion. Instead, a party desiring oral argument shall place the words “Oral Argument Requested” immediately below the title of the motion pursuant to Local Rule of Civil Procedure 7.2(f). The Court may decline the request and decide the motion without holding oral argument. If the request is granted, the Court will issue a minute entry informing the parties of the argument date and time. 10. Motions for Attorneys’ Fees. All motions for an award of attorneys’ fees shall be accompanied by an electronic Microsoft Excel spreadsheet, to be emailed to the Court and opposing counsel, containing an itemized statement of legal services with all information required by Local Rule 54.2(e)(1). This spreadsheet shall be organized with rows and columns and shall automatically total the amount of fees requested to enable the Court to efficiently review and recompute, if needed, the total amount of any award after disallowing any individual billing entries. This spreadsheet does not relieve the moving party of its burden under Local Rule 54.2(d) to attach all necessary supporting documentation to its motion. A party opposing a motion for attorneys’ fees shall email to the Court and opposing counsel a copy of the moving party’s spreadsheet, adding any objections to each contested billing entry (next to each row, in an additional column) to enable the Court to efficiently review the objections. This spreadsheet does not relieve the non-moving party of the requirements of Local Rule 54.2(f) concerning its responsive memorandum. 11. Good Faith Settlement Talks. All parties and their counsel shall meet in person and - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 engage in good faith settlement talks no later than _________________. Upon completion of such settlement talks, and in no event later than five working days after the deadline set forth in the preceding sentence, the parties shall file with the Court a joint report on settlement talks executed by or on behalf of all counsel. The report shall inform the Court that good faith settlement talks have been held and shall report on the outcome of such talks. The parties shall indicate whether assistance from the Court is needed in seeking settlement of the case. The Court will set a settlement conference before a magistrate judge upon request of all parties. The parties are reminded that they are encouraged to discuss settlement at all times during the pendency of the litigation, but the Court will not extend the case management deadlines if and when the parties elect to pursue settlement efforts, including a settlement conference before a magistrate judge. The parties should plan their settlement efforts accordingly. The parties shall promptly notify the Court if settlement is reached. 12. The Deadlines Are Real. The Court intends to enforce the deadlines set forth in this Order, and the parties should plan their litigation activities accordingly. 13. Briefing Requirements. a. All memoranda filed with the Court shall comply with Local Rule of Civil Procedure 7.1(b) requiring 13-point font in text and footnotes. b. Citations in support of any assertion in the text shall be included in the text, not in footnotes. c. To ensure timely case processing, a party moving for an extension of time, enlargement of page limitations, leave to amend, or leave to file a document under seal shall indicate in the motion whether the non-movant opposes the request and intends to file a written response. If such a motion does not so indicate, it may be denied for failure to comply with this Order. 14. Dismissal for Failure to Meet Deadlines. The parties are warned that failure to meet any of the deadlines in this Order or in the Federal or Local Rules of Civil Procedure without substantial justification may result in sanctions, including dismissal of the action - 5 - or entry of default. 15. Paper Courtesy Copies. Please do not send paper courtesy copies of filings or proposed orders unless specifically ordered to do so by the Court. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 6 -
=== Case Management Order - Patent Cases ===
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CV Plaintiff, CASE MANAGEMENT ORDER IN A PATENT CASE Defendants. v. , The Court enters the following Case Management Order to govern the litigation in this case: 1. Initial Disclosures. The deadline for making the initial disclosures required by Federal Rule of Civil Procedure 26(a)(1) is 14 days from the date of this Order. 2. Deadline for Joinder, Amending Pleadings, and Filing Supplemental Pleadings. The deadline for joining parties, amending pleadings, and filing supplemental pleadings is ___ days from the date of this Order. 3. Federal Rule of Evidence 502(d) Non-Waiver Order. The Court orders that a communication or information covered by the attorney-client privilege or work-product protection that is disclosed in connection with the litigation pending before the Court does not waive the privilege or protection in this or any other federal or state proceeding. This provision does not require any party agreement, and it avoids the need to litigate whether an inadvertent production was reasonable. By reducing the risk of waiver, this Order affords parties the opportunity to reduce the cost of discovery by reducing preproduction 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 privilege review. 4. Discovery Limitations. Depositions shall be limited to seven hours each, as provided in Rule 30(d)(1) of the Federal Rules of Civil Procedure. A party may serve on any other party up to 25 interrogatories, including subparts, 25 requests for production of documents, including subparts, and 25 requests for admissions, including subparts. The limitations set forth in this paragraph may be increased by mutual agreement of the parties, but such an increase will not result in an extension of the discovery deadlines set forth in this Order. 5. Patent-Specific Disclosures. Because this case includes a claim of patent infringement, the Court will require the parties to provide certain patent-specific disclosures and abide by certain patent-specific deadlines. A. Asserted Claims and Infringement Contentions. By ____, a party claiming patent infringement must serve on all parties a “Disclosure of Asserted Claims and Infringement Contentions.” Separately for each opposing party, the “Disclosure of Asserted Claims and Infringement Contentions” must contain the following information: 1. Each claim of each patent in suit that is allegedly infringed by each opposing party. 2. Separately for each asserted claim, each accused apparatus, product, device, process, method, act, or other instrumentality (“Accused Instrumentality”) of each opposing party of which the party is aware. This identification must be as specific as possible. Each product, device and apparatus must be identified by name or model number, if known. Each method or process must be identified by name, if known, or by any product, device, or apparatus which, when used, allegedly results in the practice of the claimed method or process. 3. A chart identifying specifically where each element of each asserted claim is found within each Accused Instrumentality, including for each element that such party contends is governed by 35 U.S.C. - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 § 112(6), the identity of the structure(s), act(s), or material(s) in the Accused Instrumentality that performs the claimed function. 4. For each claim which is alleged to have been indirectly infringed, an identification of any direct infringement and a description of the acts of the alleged indirect infringer that contribute to or are inducing that direct infringement. Insofar as alleged direct infringement is based on joint acts of multiple parties, the role of each such party in the direct infringement must be described. 5. Whether each element of each asserted claim is claimed to be literally present and/or present under the doctrine of equivalents in the Accused Instrumentality. 6. For any patent that claims priority to an earlier application, the priority date to which each asserted claim allegedly is entitled. 7. If a party claiming patent infringement asserts or wishes to preserve the right to rely, for any purpose, on the assertion that its own apparatus, product, device, process, method, act, or other instrumentality practices the claimed invention, the party must identify, separately for each asserted claim, each such apparatus, product, device, process, method, act, or other instrumentality that incorporates or reflects that particular claim. 8. If a party claiming infringement alleges willful infringement, the basis for such allegation. B. Noninfringement, Unenforceability, And Invalidity Contentions. By ____, each party opposing a claim of patent infringement must serve on all parties its “Noninfringement, Unenforceability, And Invalidity Contentions,” which must contain the following information: 1. Noninfringement Contentions shall contain a chart, responsive to the chart set forth in the “Disclosure of Asserted Claims and Infringement - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Contentions,” that separately indicates, for each identified element in each asserted claim, to the extent then known by the party opposing infringement, whether such element is present literally or under the doctrine of equivalents in each Accused Instrumentality and, if not, each reason for such denial and the relevant distinctions. Conclusory denials are not permitted. 2. Invalidity Contentions must contain the following information to the extent then known to the party asserting invalidity: a. An identification, with particularity, of each item of prior art per asserted patent that allegedly invalidates each asserted claim. Each prior art patent shall be identified by its number, country of origin, and date of issue. Each prior art publication must be identified by its title, date of publication, and where feasible, author and publisher. Prior art in the form of sales, offers for sale, or uses shall be identified by specifying the item offered for sale or publicly used or known, the date the offer or use took place or the information became known, and the identity of the person or entity which made the use or which made and received the offer, or the person or entity which made the information known or to whom it was made known. For a patent governed by the pre-America Invents Act (“AIA”) amendments to the patent statute, any prior art under 35 U.S.C. § 102(f) shall be identified by providing the name of the person(s) from whom and the circumstances under which the invention or any part of it was derived, and prior art under 35 U.S.C. § 102(g) (pre-AIA) shall be identified by providing the identities of the person(s) or entities involved in and the circumstances surrounding the making of the invention before - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the patent applicant(s). b. For each item of prior art, a detailed statement of whether it allegedly anticipates or renders obvious each asserted claim. If a combination of items of prior art allegedly makes a claim obvious, the Invalidity Contentions must identify each such combination and the reasons to combine such items. c. A chart identifying where specifically in each alleged item of prior art each element of each asserted claim is found, including for each element that such party contends is governed by 35 U.S.C. § 112(6)/112(f), a description of the claimed function of that element and the identity of the structure(s), act(s), or material(s) in each item of prior art that performs the claimed function. d. A detailed statement of any grounds of invalidity based on indefiniteness under 35 U.S.C. § 112(2)/112(b), enablement or written description under 35 U.S.C. § 112(1)/112(a), or any other basis. e. A detailed statement of any grounds for contentions that a claim is invalid as non-statutory/patent ineligible under 35 U.S.C. §101. 3. Unenforceability contentions shall identify the acts allegedly supporting and all bases for the assertion of unenforceability. C. Amendment Of Contentions. Amendment of the “Disclosure of Asserted Claims and Infringement Contentions” or the “Noninfringement, Unenforceability, And Invalidity Contentions” may be made only by order of the Court upon a timely showing of good cause. Non-exhaustive examples of circumstances that may, absent undue prejudice to the non-moving party, support a finding of good cause include: (i) a claim construction by the Court different from that proposed by the party seeking amendment; (ii) recent - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discovery of material, prior art despite earlier diligent search; and (iii) recent discovery of nonpublic information about the Accused Instrumentality which was not discovered, despite diligent efforts, before the service of the “Disclosure of Asserted Claims and Infringement Contentions.” The duty to supplement discovery responses does not excuse the need to obtain leave of court to amend contentions. D. Exchange Of Proposed Terms For Construction. By ____, each party shall serve on each other party a list of claim terms which that party contends should be construed by the Court, and identify any claim term which that party contends should be governed by 35 U.S.C. § 112(6). The parties shall thereafter meet and confer for the purpose of limiting the terms in dispute by narrowing or resolving differences and facilitating the ultimate preparation of a Joint Claim Construction and Prehearing Statement. The parties shall also jointly identify the 10 terms likely to be most significant to resolving the parties’ dispute, including those terms for which construction may be case or claim dispositive. E. Exchange of Preliminary Claim Constructions. By ____, the parties shall simultaneously exchange proposed constructions of each term identified by either party for claim construction. Each such Preliminary Claim Construction shall also, for each term which any party contends is governed by 35 U.S.C. § 112(6), identify the structure(s), act(s), or material(s) corresponding to that term’s function. At the same time the parties exchange their respective Preliminary Claim Constructions, each party shall also identify all references from the specification or prosecution history that support its proposed construction and designate any supporting extrinsic evidence including, without limitation, dictionary definitions, citations to learned treatises and prior art, and testimony of percipient and expert witnesses. Extrinsic evidence shall be identified by production number or by producing a copy if not previously produced. With respect to any supporting witness, percipient or expert, the identifying party shall also provide a description of the substance of that witness’ proposed testimony that includes a listing of any opinions to be rendered in connection with claim construction. The parties shall thereafter meet and - 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 confer for the purposes of narrowing the issues and finalizing preparation of a Joint Claim Construction and Prehearing Statement. F. Joint Claim Construction Statement. By ___, the parties shall complete and file a Joint Claim Construction Statement, which shall contain the following information: 1. 2. The construction of those terms on which the parties agree. Each party’s proposed construction of each disputed term, together with an identification of all references from the specification or prosecution history that support that construction, and an identification of any extrinsic evidence known to the party on which it intends to rely either to support its proposed construction or to oppose any other party’s proposed construction, including, but not limited to, as permitted by law, dictionary definitions, citations to learned treatises and prior art, and testimony of percipient and expert witnesses. 3. An identification of the terms whose construction will be most significant to the resolution of the case up to a maximum of 10. The parties shall also identify any term among the 10 whose construction will be case or claim dispositive. If the parties cannot agree on the 10 most significant terms, the parties shall identify the ones which they do agree are most significant and then they may evenly divide the remainder with each party identifying what it believes are the remaining most significant terms. However, the total terms identified by all parties as most significant cannot exceed 10. For example, in a case involving two parties, if the parties agree upon the identification of five terms as most significant, each may only identify two additional terms as most significant; if the parties agree upon eight such terms, each party may only identify only one additional term as - 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 most significant. 4. Anticipated length of time necessary for the Claim Construction Hearing. 5. Whether any party proposes to call one or more witnesses at the Claim Construction Hearing, and the identity of each such witness. 6. An identification of any factual findings requested from the Court related to claim construction. G. Claim Construction Expert Disclosures. By ___, any party that intends to rely on any witness who will give expert testimony to support that party’s proposed constructions shall serve the other party or parties with a claim construction expert report for that witness. Such reports shall comply with the disclosure requirements of Fed. R. Civ. P. 26(A)(2)(B). H. Claim Construction Discovery. By ___, the parties shall complete all discovery relating to claim construction, including any depositions with respect to claim construction of any witnesses, including experts, identified in the Preliminary Claim Construction statement or Joint Claim Construction Statement I. Claim Construction Briefs. 1. By ___, the party claiming patent infringement (or the party asserting invalidity if there is no infringement issue present in the case) shall serve and file an opening brief and any evidence supporting its claim construction. 2. By ____, each opposing party shall serve and file its responsive brief and supporting evidence. 3. By ___, the party claiming patent infringement (or the party asserting invalidity if there is no infringement issue present in the case) shall serve and file any reply brief and any evidence directly rebutting the supporting evidence contained in an opposing party’s response. J. Claim Construction Hearing Following submission of the reply brief - 8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 specified in § 5.I.3 above, the Court may conduct a Claim Construction Hearing, to the extent the parties or the Court believe a hearing is necessary for construction of the claims at issue. 6. Fact Discovery. The deadline for completion of fact discovery, including discovery by subpoena and all disclosure required under Rule 26(a)(3), shall be __ days following the Court’s issuance of the Claim Construction ruling. To ensure compliance with this deadline, the following rules shall apply: A. Depositions: All depositions shall be scheduled to start at least five working days before the discovery deadline. A deposition started five days before the deadline may continue up until the deadline, as necessary. B. Written Discovery: All interrogatories, requests for production of documents, and requests for admissions shall be served at least 45 days before the fact discovery deadline. C. Notwithstanding Local Rule of Civil Procedure 7.3, the parties may mutually agree in writing, without Court approval, to extend the time for providing discovery in response to requests under Rules 33, 34, and 36 of the Federal Rules of Civil Procedure. Such agreed-upon extensions, however, shall not alter or extend the deadlines set forth in this Order. D. Notwithstanding any provisions of the Federal Rules of Civil Procedure, non- party witnesses shall not be permitted to attend (either physically, electronically, or otherwise) the deposition of any other witness in this case without an order of this Court to the contrary. 7. Expert Disclosures, Expert Discovery, and Motions Challenging Expert Testimony. A. The party with the burden of proof on an issue shall provide full and complete expert disclosures, as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure, no later than _____________. B. The responding party (not having the burden of proof on the issue) shall provide full and complete expert disclosures, as required by Rule 26(a)(2)(A)-(C) of the - 9 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Federal Rules of Civil Procedure, no later than _____________. C. The party with the burden of proof on the issue shall make its rebuttal expert disclosures, if any, no later than _____________. Rebuttal experts shall be limited to responding to opinions stated by the opposing party’s experts. D. No depositions of any expert witnesses shall occur before the aforementioned disclosures concerning expert witnesses are made. E. Expert depositions shall be completed no later than ______________. All expert depositions shall be scheduled to commence at least five working days before this deadline. F. Disclosures under Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure must include the identities of treating physicians and other witnesses who will provide testimony under Federal Rules of Evidence 702, 703, or 705, but who are not required to provide expert reports under Rule 26(a)(2)(B). Rule 26(a)(2)(C) disclosures are required for such witnesses on the dates set forth above. Rule 26(a)(2)(C) disclosures must identify not only the subjects on which the witness will testify, but must also provide a summary of the facts and opinions to which the expert will testify. The summary, although not as detailed as a Rule 26(a)(2)(B) report, must be sufficiently detailed to provide fair notice of what the expert will say at trial.1 G. As stated in the Advisory Committee Notes to Rule 26 of the Federal Rules of Civil Procedure (1993 amendment), expert reports under Rule 26(a)(2)(B) must set forth “the testimony the witness is expected to present during direct examination, together with the reasons therefor.” Full and complete disclosures of such testimony are required on the dates set forth above. Absent extraordinary circumstances, parties will not be permitted to supplement expert reports after these dates. The Court notes, however, that it usually 1 In Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817 (9th Cir. 2011), the Ninth Circuit held that “a treating physician is only exempt from Rule 26(a)(2)(B)’s written report requirement to the extent that his opinions were formed during the course of treatment.” Id. at 826. Thus, for opinions formed outside the course of treatment, Rule 26(a)(2)(B) written reports are required. Id. For opinions formed during the course of treatment, Rule 26(a)(2)(C) disclosures will suffice. - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 permits parties to present opinions of their experts that were elicited by opposing counsel during depositions of the experts. Counsel should depose experts with this fact in mind. H. Each side shall be limited to one retained or specifically employed expert witness per issue. I. An untimely-disclosed expert will not be permitted to testify unless the party offering the witness demonstrates that (a) the necessity of the expert witness could not have been reasonably anticipated at the time of the disclosure deadline, (b) the opposing counsel or unrepresented parties were promptly notified upon discovery of the expert witness, and (c) the expert witness was promptly proffered for deposition. See Wong v. Regents of Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005). J. Any motions challenging expert testimony must be filed no later than 28 days after the deadline for close of expert discovery. 8. Discovery Disputes. A. The parties shall not file written discovery motions without leave of the Court. Except during a deposition, if a discovery dispute arises and cannot be resolved despite sincere efforts to resolve the matter through personal consultation (in person or by telephone), the parties shall jointly file (1) a brief written summary of the dispute, not to exceed three pages per side,2 explaining the position taken by each party, and (2) a joint written certification that counsel or the parties have attempted to resolve the matter through personal consultation and sincere efforts as required by Local Rule of Civil Procedure 7.2(j) and have reached an impasse. If the opposing party has refused to personally consult, the party seeking relief shall describe the efforts made to obtain personal consultation. Upon review of the written submission, the Court may set a telephonic conference, order written briefing, or decide the dispute without conference or briefing. Any briefing ordered by the Court shall also comply with Local Rule of Civil Procedure 7.2(j). 2 The discovery dispute summary shall adhere to the formatting requirements of LRCiv 7.1(b)(1). Discovery dispute filings that do not conform to the procedures outlined in this paragraph, including the page limitation, may be summarily stricken. - 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. If a discovery dispute arises in the course of a deposition and requires an immediate ruling of the Court, the parties shall jointly telephone the Court to request a telephone conference regarding the dispute. C. Absent extraordinary circumstances, the Court will not entertain fact discovery disputes after the deadline for completion of fact discovery and will not entertain expert discovery disputes after the deadline for completion of expert discovery. Delay in presenting discovery disputes for resolution is not a basis for extending discovery deadlines. 9. Dispositive Motions. A. B. Dispositive motions shall be filed no later than ______________. No party shall file more than one motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure without leave of the Court. C. Local Rule of Civil Procedure 56.1 is suspended, except for subsection (d). The Court will decide summary judgment motions under Federal Rule of Civil Procedure 56 only. In other words, the parties may not file separate statements of facts or separate controverting statements of facts, and instead must include all facts in the motion, response, or reply itself. All evidence to support a motion or response that is not already part of the record must be attached to the briefs. The evidence may include only relevant excerpts rather than full documents. The only evidence that may be attached to a reply is evidence intended to rebut arguments raised for the first time in the non-movant’s response. Because no separate controverting statement of facts will be permitted, the responding party must carefully address all material facts raised in the motion. Likewise, the reply must carefully address all material facts raised in the response. Any fact that is ignored may be deemed uncontested. Procedurally, immediately following the motion should be a numerical table of contents for the exhibits. The table of contents shall include only a title for each exhibit, not a description. Following the table of contents should be each exhibit (unless the document is already part of the record), numbered individually. Immediately following the response to the motion should be an alphabetical table of contents (again, the table of - 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contents shall include only a title for each exhibit, not a description). Following the table of contents should be each exhibit (unless the document is already part of the record), labeled alphabetically. By way of example, citations to exhibits attached to the motion would be “(Ex. 1 at 7)” and citations to exhibits attached to the response would be “(Ex. D at 3).” Citations to documents that are already part of the record shall reference the docket number where the document can be found and include a pin cite to the relevant page—for example, “(Doc. 15 at 4).” All papers shall be submitted via filing on the docket. Do not send paper courtesy copies. D. The parties shall not notice oral argument on any motion. Instead, a party desiring oral argument shall place the words “Oral Argument Requested” immediately below the title of the motion pursuant to Local Rule of Civil Procedure 7.2(f). The Court may decline the request and decide the motion without holding oral argument. If the request is granted, the Court will issue a minute entry informing the parties of the argument date and time. 10. Motions for Attorneys’ Fees. All motions for an award of attorneys’ fees shall be accompanied by an electronic Microsoft Excel spreadsheet, to be emailed to the Court and opposing counsel, containing an itemized statement of legal services with all information required by Local Rule 54.2(e)(1). This spreadsheet shall be organized with rows and columns and shall automatically total the amount of fees requested to enable the Court to efficiently review and recompute, if needed, the total amount of any award after disallowing any individual billing entries. This spreadsheet does not relieve the moving party of its burden under Local Rule 54.2(d) to attach all necessary supporting documentation to its motion. A party opposing a motion for attorneys’ fees shall email to the Court and opposing counsel a copy of the moving party’s spreadsheet, adding any objections to each contested billing entry (next to each row, in an additional column) to enable the Court to efficiently review the objections. This spreadsheet does not relieve the non-moving party of the requirements of Local Rule 54.2(f) concerning its responsive memorandum. - 13 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11. Tentative Rulings. Before holding oral argument, the Court sometimes issues a “tentative ruling”—a working draft of the order resolving the pending motion(s)—to allow the parties to focus their argument on the issues that seem salient to the Court and to maximize their ability to address any perceived errors in the Court’s logic. If a tentative ruling issues, it is not an invitation to submit additional evidence or briefing. If the parties choose not to proceed with oral argument after reviewing the tentative ruling, the parties may stipulate to issuance of an order substantively identical to the tentative ruling.3 12. Good Faith Settlement Talks. All parties and their counsel shall meet in person and engage in good faith settlement talks no later than ______________. Upon completion of such settlement talks, and in no event later than five working days after the deadline set forth in the preceding sentence, the parties shall file with the Court a joint report on settlement talks executed by or on behalf of all counsel. The report shall inform the Court that good faith settlement talks have been held and shall report on the outcome of such talks. The parties shall indicate whether assistance from the Court is needed in seeking settlement of the case. The Court will set a settlement conference before a magistrate judge upon request of all parties. The parties are reminded that they are encouraged to discuss settlement at all times during the pendency of the litigation, but the Court will not extend the case management deadlines if and when the parties elect to pursue settlement efforts, including a settlement conference before a magistrate judge. The parties should plan their settlement efforts accordingly. The parties shall promptly notify the Court if settlement is reached. 13. The Deadlines Are Real. The Court intends to enforce the deadlines set forth in this Order, and the parties should plan their litigation activities accordingly. 14. Briefing Requirements. A. All memoranda filed with the Court shall comply with Local Rule of Civil 3 The Court might make stylistic changes before finalizing the order. If the tentative ruling contains any factual error, the parties may note the error in the stipulation to allow for correction. - 14 - Procedure 7.1(b) requiring 13-point font in text and footnotes. B. Citations in support of any assertion in the text shall be included in the text, not in footnotes. C. To ensure timely case processing, a party moving for an extension of time, enlargement of page limitations, leave to amend, or leave to file a document under seal shall indicate in the motion whether the non-movant opposes the request and intends to file a written response. If such a motion does not so indicate, it may be denied for failure to comply with this Order. 15. Deadline for Notice of Readiness for Trial. The Plaintiff(s) shall notify the Court that the parties are ready to proceed to trial. The Plaintiff(s) shall file and serve this notice within seven days after the dispositive motion deadline if no dispositive motions are pending on that date. If dispositive motions are pending, Plaintiff(s) shall file and serve such notice within seven days after the resolution of the dispositive motions. The Court will then issue an order identifying a window of time when the Court is available for trial and instructing the parties to propose dates from within this window when all parties, counsel, and witnesses are available to begin trial. The Court will then issue an order setting a firm date for trial and the final pretrial conference that (a) sets deadlines for briefing motions in limine, (b) includes a form for the completion of the parties’ joint proposed final pretrial order, and (c) otherwise instructs the parties concerning their duties in preparing for the final pretrial conference. 16. Dismissal for Failure to Meet Deadlines. The parties are warned that failure to meet any of the deadlines in this Order or in the Federal or Local Rules of Civil Procedure without substantial justification may result in sanctions, including dismissal of the action or entry of default. 17. Paper Courtesy Copies. Please do not send paper courtesy copies of filings or proposed orders unless specifically ordered to do so by the Court. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 15 -
=== Exhibit Procedures ===
EXHIBIT PROCEDURES United States District Court Honorable Dominic W. Lanza GENERAL INSTRUCTIONS: Marking and listing of exhibits is the responsibility of counsel/party, not the Courtroom Deputy. All exhibits, including 1 set of exhibits for the Clerk, 1 set of exhibits for Judge Lanza, and triplicate copies of the witness and exhibit lists (detailed below), must be delivered to the Courtroom Deputy on an agreed upon date and time no later than three business days prior to the start of trial/hearing. Counsel are required to use the adhesive labels and/or cover sheets as described herein. If you have any questions or need more adhesive exhibit labels, please e-mail the Courtroom Deputy ([email protected]; 602-322-7108). USE OF LABELS/COVER SHEET: 1. Exhibit cover sheets and labels are divided by color to indicate whether the exhibit is offered by Plaintiff (yellow) or Defendant (blue). 2. Exhibit cover sheets are provided to counsel by the Courtroom Deputy (or on the court’s website: www.azd.uscourts.gov → Judge’s Orders, Forms & Procedures → Standard Forms Used By All Phoenix Judges) for numbering and labeling exhibits before trial. Exhibit cover sheets shall be copied on yellow or blue paper and used in cover sheet fashion to identify standard sized paper exhibits. The cover sheet shall be stapled to the top of the original exhibit, and the exhibit shall be placed in a numbered file (manila) folder to correspond with the exhibit number. Prepare extra cover sheets and provide extra file folders to the Courtroom Deputy for exhibits marked during trial. 3. If the exhibit is a photo, staple the photo to the exhibit cover sheet. 4. Large or bulky items may require the use of tie tags with an adhesive exhibit label placed on a tag or may be marked in a logical location on the item or on the plastic bag containing the item. 5. Large charts used for demonstrative purposes should be identified in the lower right-hand corner with an adhesive exhibit label (or placed on the back of the chart). If the item is an enlargement of another marked exhibit, it should be numbered as a sub-part of the smaller exhibit. 6. Before a witness is called to testify at trial/hearing, advise the Courtroom Deputy which exhibits will be needed for the witness. NUMBERING: 1. Blocks of numbers are assigned to each side. Plaintiff starts with number 1 through the estimated number of exhibits. Defendant is to utilize numbers starting after Plaintiff but allowing space for additional exhibits marked during trial (example: Plaintiff 1-80 and Defendant 100 - 180). Failure to comply with this procedure will result in counsel re-marking the exhibits. Court time will not be used for the marking of exhibits. 2. Plaintiff and Defense counsel shall consult with one another prior to marking exhibits to avoid marking duplicates. If Plaintiff marks a document, the Defendant should not mark the same document. The exhibits are considered Court exhibits, not Plaintiff or Defendant. Either side may move the other’s exhibits into evidence. 3. Use numbers only, including when identifying sub-parts (e.g. Exhibit 3-1, Exhibit 3-2, Exhibit 3-3). Categorizing exhibits should be kept as simple and clear as possible. 4. Multiple-page exhibits should be stapled or ACCO fastened; please do not use paper or binder clips or rubber bands. The Court will reject incorrectly-bound exhibits. Regarding bulky documents, BATES stamp numbers may be placed on each page in the bottom right hand corner and shall be continuously numbered for easy reference. 5. Blocks of numbers may be used to categorize exhibits (e.g. series 1-99 are bank records; series 100- 199 are tax returns; series 200-299 are photographs, etc.) USE OF FOLDERS: 1. Place exhibits loose in file folders so that the exhibit may be pulled out of the folder during trial. Do not attach the exhibit to the file folder. Label the folder tab to identify the exhibit. Provide extra folders and exhibit cover sheets to the Courtroom Deputy for exhibits marked during trial/hearing. 2. Place the exhibit file folders in a box in numerical order. Mark the outside of the box to indicate which exhibits are contained therein. Leave room in the box for any extra exhibits that may be submitted during trial. 3. Do not place trial exhibits in binders except when the binder is considered one exhibit. When an exhibit is placed in a binder, mark the binder with an exhibit label in the lower right-hand corner. However, the Judge’s copies of exhibits are to be compiled in binders and must be numerically tabbed. The Judge’s copies should not have original exhibit cover sheets on them. 4. At least three business days prior to trial, counsel must bring and provide to the Courtroom Deputy their marked exhibits (1 set for the Clerk, 1 set for Judge Lanza), three (3) copies of the witness lists, and three (3) copies of the exhibits lists. 3 EXHIBIT LISTS: 1. Exhibits must be listed on the exhibit list available on the Court’s website (www.azd.uscourts.gov → Judge’s Orders, Forms & Procedures → Standard Forms Used By All Phoenix Judges), or the list may be reproduced on a word processor so long as it follows the same format. Include blank rows/pages at the end of the exhibit list to add additional exhibits. 2. Provide the Courtroom Deputy with 3 copies of the exhibit list no later than 3 business days before trial. Do not arrive in court without these copies. Counsel may not provide the courtroom clerk with the list of exhibits provided in the Pretrial Order (civil cases) in lieu of the exhibit list form. WITNESS LISTS: 1. Witness names must be listed on the witness list available on the Court’s website (www.azd.uscourts.gov → Judge’s Orders, Forms & Procedures → Standard Forms Used By All Phoenix Judges), or the list may be reproduced on a word processor so long as it follows the same format. Please provide the full name of each witness and list them in alphabetical order by last name. Include blank rows/pages at the end of the witness list to add additional witnesses. 2. Provide the Courtroom Deputy with 3 copies of the witness list no later than 3 business days before trial. Do not arrive in court without these copies. Counsel may not provide the Courtroom Deputy with the list of witnesses provided in the Pretrial Order (civil cases) in lieu of the witness list form. 4 SENSITIVE EXHIBITS: The Courtroom Deputy will not take custody of any sensitive exhibits. During breaks (morning, lunch and afternoon) and at the close of each day, these exhibits are returned to the government (usually the agent) until court resumes. Pursuant to General Order 98-07 dated July 30, 1987: The arresting or investigative agency or designated representative shall retain custody of sensitive exhibits prior to, throughout and after trial. Sensitive exhibits shall include drugs and drug paraphernalia, guns and other weapons, money and any other exhibits designated as sensitive by the Court. See also Local Rule of Civil Procedure 79.1(b). IMPEACHMENT EXHIBITS: Impeachment exhibits are given to the Courtroom Deputy the first day of trial/hearing, not the day a witness testifies, in a sealed envelope. The envelope should be marked with the caption of the case and shall identify the party presenting the exhibits (e.g. Plaintiff’s Impeachment A). If there is more than one exhibit in the envelope, mark each one with a separate number so you (and the Courtroom Deputy) will be able to identify it. Identify these exhibits with a numbering system of your own for easy retrieval, and the Courtroom Deputy will assign the next available number on the exhibit list when the exhibit is used. STIPULATED EXHIBITS: In civil trials, parties may agree on most of the exhibits prior to trial and as listed in the Pretrial Order. Counsel may give the Courtroom Deputy a list of the stipulated exhibits to be marked in evidence before moving for their admission. In criminal trials, stipulated exhibits usually come in one at a time during the trial. 5 DEPOSITIONS: Do not mark depositions as exhibits. Identify them by party (so they will be returned to the correct party after trial), place them in a box in alphabetical order, and give them to the Courtroom Deputy the morning of trial. RETURN OF EXHIBITS 1. Pursuant to LRCiv 79.1(a), all exhibits are returned to respective parties for them to keep custody pending all appeals. If the exhibits are not retrieved by counsel within 30 days of the Notice of Return of Exhibits issuing, pursuant to LRCiv 79.1(c) the clerk may destroy or otherwise dispose of those exhibits. 2. Usually, trial exhibits are returned immediately to respective counsel upon conclusion of trial. Counsel will sign for returned exhibits. When a case is taken under advisement and a verdict or court ruling issues at a later date, a separate order will follow directing counsel to retrieve the exhibits from the Courtroom Deputy. 6
=== Joint Proposed Final Pretrial Order ===
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CV Plaintiff, JOINT PROPOSED FINAL PRETRIAL ORDER v. , Defendants. Following is the Joint Proposed Final Pretrial Order to be considered at the Final Pretrial Conference in this case set for _______________ at _________________. A. Trial Counsel Provide the mailing address, email address, office number, and cell number for: Plaintiff(s): Defendant(s): B. Statement of Jurisdiction 1. Cite the statute(s) that give this Court jurisdiction (e.g., jurisdiction in this case is based on diversity of citizenship under 28 U.S.C. § 1332). 2. State whether jurisdiction is disputed. (If so, the party disputing jurisdiction must set forth with specificity the bases for its objection.) C. Stipulations and Undisputed Facts and Law 1. 2. The following material facts are admitted by the parties and require no proof: The following material facts, although not admitted, will not be contested at trial by evidence to the contrary: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. The following issues of law are uncontested and stipulated to by the parties: D. Contested Issues of Fact and Law 1. The following are the material issues of fact to be tried and decided: NOTE: Each issue of fact must be separately and specifically identified, and each party’s contention must be provided with respect to each issue. For example: Issue #1: Whether Plaintiff used due care. Plaintiff: Plaintiff looked both ways before crossing the street . . . . Defendant: Plaintiff ran into the street without looking . . . . 2. The following are the issues of law to be determined: NOTE: Each issue of law must be separately and specifically identified, and each party’s contention must be provided with respect to each law. For example: Issue #1: Whether Plaintiff’s suit is barred by the doctrine of laches. Plaintiff: . . . . Defendant: . . . . E. Witness List Each party must separately list the names of witnesses, whether they are fact or expert witnesses, and a brief description of the testimony of each witness (except witnesses who may be called for impeachment). The witnesses must be grouped as follows: (1) witnesses who will be called at trial; (2) witnesses who may be called at trial; and (3) witnesses who are unlikely to be called at trial. Additionally, the parties must include the following text in this section of the Joint Proposed Final Pretrial Order: “Each party understands that it is responsible for ensuring that the witnesses it wishes to call to testify are subpoenaed. Each party further understands that any witness a party wishes to call must be listed on that party’s list of witnesses; the party cannot rely on the witness having been listed or subpoenaed by another party.” F. Exhibit List 1. The following exhibits are admissible in evidence and may be marked in evidence by the Courtroom Deputy Clerk: - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a. Plaintiff’s Exhibits: b. Defendant’s Exhibits: 2. As to the following exhibits, the parties have reached the following stipulations: a. Plaintiff’s Exhibits: b. Defendant’s Exhibits: 3. As to the following exhibits, the party against whom the exhibit is to be offered objects to its admission and offers the objection stated below: a. Plaintiff’s Exhibits: [E.g., City Hospital records of Plaintiff from March 1985. Defendant objects for a lack of foundation because . . . .] b. Defendant’s Exhibits: [E.g., Payroll records of Plaintiff’s employer that show payment of Plaintiff’s salary during hospitalization and recovery. Plaintiff objects on grounds of relevance and materiality because . . . .] 4. If there are more than 20 exhibits, the parties must email their exhibit lists in Word format, at least five days before trial, to the chambers email address ([email protected]). 5. The parties must include the following text in this section of the Joint Proposed Final Pretrial Order: “Each party hereby acknowledges by signing this Joint Proposed Final Pretrial Order that any objections not specifically raised herein are waived.” G. Depositions to be Offered The parties must list the depositions that may be used at trial. The portions to be read or submitted at trial must be identified by page and line number. Additionally, the offering party must provide the Court with a copy of the offered deposition. The offering party must highlight, in color, the portions of the deposition to be offered. If multiple parties are offering the same deposition, only one copy should be provided. This copy must contain each party’s highlighting (each party should use a different color). Any party objecting to the admission of any portion of a deposition shall identify by page and line number the portion to which objection is made and shall state the grounds of - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 objection specifically. The parties must include the following text in this section of the Joint Proposed Final Pretrial Order: “Each party hereby acknowledges by signing this Joint Proposed Final Pretrial Order that any deposition not listed as provided herein will be disallowed, absent good cause.” H. Motions in Limine (Jury Trial Only) Motions in limine and responses thereto must be filed as separate pleadings and in accordance with the Order Setting Final Pretrial Conference. I. Pending Motions The parties must list all pending motions other than motions in limine. J. Procedures for Expediting Trial The parties must discuss and report on all available procedures that might be used to expedite trial, including but not limited to (a) presenting stipulated summaries of deposition testimony rather than reading deposition excerpts; (b) editing videotaped depositions to limit the amount of time required for presentation; (c) using summary exhibits in place of voluminous documentary evidence; (d) stipulations on authenticity and foundation; (e) presenting direct expert testimony through summary or written reports; and (f) using courtroom technology to expedite the presentation of evidence. The parties are invited to contact chambers, using the chambers email address, to arrange a time to visit the courtroom and examine its technology. Information about courtroom technology can also be found at www.azd.uscourts.gov under Judges’ Information → Orders, Forms & Procedures → Standard Procedures Used by All Phoenix Judges; Electronic/Video Courtroom Equipment Information – Phoenix. K. Estimated Length of Trial ____ hours for opening statements and closing arguments ____ hours for Plaintiff(s)’ case, including cross-exam of other parties’ witnesses ____ hours for Defendant(s)’ case, including cross-exam of other parties’ witnesses ____ hours for rebuttal - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L. Jury Demand State whether a jury trial has been requested. If a jury trial has been requested, indicate the appropriate selection: 1. 2. The parties stipulate that the demand for a jury trial was timely; The Plaintiff/Defendant contends the demand was untimely because [provide an explanation including legal citation]; or 3. The Plaintiff/Defendant contends that although the request for trial by jury was timely, the request is otherwise improper as a matter of law because [provide an explanation including legal citations]. M. Proposed Findings of Fact and Conclusions of Law (Bench Trial Only) Proposed Findings of Fact and Conclusions of Law must be filed by each party as a separate pleading in accordance with the instructions contained in the Order Setting Final Pretrial Conference. The parties must include the following text in this section of the Joint Proposed Final Pretrial Order: “The separately lodged Proposed Findings of Fact and Conclusions of Law are incorporated by reference into this Joint Proposed Final Pretrial Order.” N. Voir Dire, Jury Instructions, and Forms of Verdict The proposed jury instructions, proposed voir dire, and proposed forms of verdict must be filed in accordance with the instructions contained in the Order Setting Final Pretrial Conference. O. Certifications The parties must include the following text in this section of the Joint Proposed Final Pretrial Order: “The undersigned counsel for each of the parties in this action do hereby certify and acknowledge the following: (1) All discovery has been completed; (2) The identity of each witness has been disclosed to opposing counsel; (3) Each exhibit listed herein is in existence, is numbered, and has been disclosed and shown to opposing counsel; (4) The parties have complied in all respects with the mandates of the Court’s Rule 16 Case Management Order and Order Setting Final Pretrial Conference; (5) The parties have made - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 all of the disclosures required by the Federal Rules of Civil Procedure (unless otherwise previously ordered to the contrary); and (6) The parties acknowledge that once this Joint Proposed Final Pretrial Order has been signed and lodged by the parties, no amendments to this Order can be made without leave of Court.” P. Information for Court Reporter To facilitate the creation of an accurate record, please prepare a “Notice to Court Reporter” one week before trial containing the following information: 1. 2. 3. 4. 5. 6. Proper names, including those of witnesses. Acronyms. Geographic locations. Technical (including medical) terms, names, or jargon. Case names and citations. Pronunciation of unusual or difficult words or names. This notice need not be filed but shall be provided via email to Jennifer Pancratz at [email protected]. She can be reached at 602-322-7198. Counsel shall also advise the court reporter as soon as possible if they would like to receive a real-time feed or daily turnaround transcript of the proceedings. _______________________ Attorney for Plaintiff(s) ____________________ Attorney for Defendants(s) Based on the foregoing, IT IS ORDERED that this Joint Proposed Final Pretrial Order jointly submitted by the parties is hereby APPROVED and ADOPTED as the Final Pretrial Order of this Court. Dated this ____ day of _____________, _____. ______________________________________ Dominic W. Lanza United States District Judge - 6 -
=== Order Requiring 26(f) Report ===
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA , v. , Plaintiff, Defendants. No. ORDER REQUIRING RULE 26(f) REPORT Pursuant to Rule 16(b)(1) of the Federal Rules of Civil Procedure, the Court will issue a scheduling order after receiving the parties’ Rule 26(f) report. After reviewing the Rule 26(f) report, the Court will set a case management conference if meeting with the parties appears necessary or helpful. Accordingly, IT IS ORDERED as follows: The parties are directed to meet, confer, and develop a Rule 26(f) Joint Case Management Report, which must be filed within 4 weeks of the date of this order. It is the responsibility of Plaintiff(s) to initiate the Rule 26(f) meeting and preparation of the Joint Case Management Report. Defendant(s) shall promptly and cooperatively participate in the Rule 26(f) meeting and assist in preparation of the Joint Case Management Report. The Joint Case Management Report shall contain the following information in separately numbered paragraphs. 1. The parties who attended the Rule 26(f) meeting and assisted in developing 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Joint Case Management Report; 2. A list of all parties in the case, including any parent corporations or entities (for recusal purposes); 3. Any parties that have not been served and an explanation of why they have not been served, and any parties that have been served but have not answered or otherwise appeared; 4. A statement of whether any party expects to add additional parties to the case or otherwise to amend pleadings; 5. The names of any parties not subject to the Court’s personal (or in rem) jurisdiction; 6. A description of the basis for the Court’s subject matter jurisdiction (see the accompanying footnote), citing specific jurisdictional statutes;1 7. A short statement of the nature of the case (no more than 3 pages), including a description of each claim, defense, and affirmative defense; 8. A listing of contemplated motions and a statement of the issues to be decided by those motions; 9. The prospects for settlement, including whether the case is suitable for reference to a United States Magistrate Judge for a settlement conference; 1 If jurisdiction is based on diversity of citizenship, the report shall include a statement of the citizenship of every party and a description of the amount in dispute. See 28 U.S.C. §1332. The parties are reminded that (1) a corporation is a citizen of the state where it is incorporated and the state of its principal place of business and (2) partnerships and limited liability companies are citizens of every state in which one of their partners, owners, or members is a citizen. See 28 U.S.C. §1332(c); Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). As to individual natural persons, an allegation about an individual’s residence does not establish his or her citizenship for purposes of establishing diversity jurisdiction. Steigleder v. McQuesten, 198 U.S. 141, 143 (1905). “To be a citizen of a state, a natural person must first be a citizen of the United States. The natural person’s state citizenship is then determined by her state of domicile, not her state of residence. A person’s domicile is her permanent home, where she resides with the intention to remain or to which she intends to return.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 858-59 (9th Cir. 2001) (emphasis added). The parties are further reminded that the use of fictitious parties (“John Doe” or “ABC Corporation”) does not create diversity jurisdiction. Fifty Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1191 (9th Cir. 1970). - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. The status of any related cases pending before this or other courts; 11. A discussion of any issues relating to preservation, disclosure, or discovery of electronically stored information (“ESI”), including the parties’ preservation of ESI and the form or forms in which it will be produced; 12. A discussion of any issues relating to claims of privilege or work product; 13. A discussion of necessary discovery, which should take into account the December 1, 2015 amendments to Rule 26(b)(1) and should include: a. The extent, nature, and location of discovery anticipated by the parties and why it is proportional to the needs of the case; b. Suggested changes, if any, to the discovery limitations imposed by the Federal Rules of Civil Procedure; c. The number of hours permitted for each deposition. The parties also should consider whether a total number of deposition hours should be set in the case, such as 20 total hours for Plaintiffs and 20 total hours for Defendants. Such overall time limits have the advantage of providing an incentive for each side to be as efficient as possible in each deposition, while also allowing parties to allocate time among witnesses depending on the importance and complexity of subjects to be covered with the witnesses. 14. Proposed deadlines for each of the following events. In proposing deadlines, the parties should keep in mind that civil trials should occur within 18 months of the filing of the complaint. 28 U.S.C. § 473(a)(2)(B). The Case Management Order will specify trial scheduling up to the final pretrial conference. Once the dates have been set in the Case Management Order, the Court will not vary them without good cause, even if the parties would otherwise stipulate to do so. The parties must propose the following: a. A deadline for the completion of fact discovery, which will also be the deadline for pretrial disclosures pursuant to Rule 26(a)(3). This - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 deadline is the date by which all fact discovery must be completed. Discovery requests must be served and depositions noticed sufficiently in advance of this date to ensure reasonable completion by the deadline, including time to resolve discovery disputes. Absent extraordinary circumstances, the Court will not entertain discovery disputes after this deadline; b. Dates for full and complete expert disclosures and rebuttal expert disclosures, if any; c. d. e. f. A deadline for completion of all expert depositions; A date by which any Rule 35 physical or mental examination will be noticed if such an examination is required by any issues in the case; A deadline for filing dispositive motions; Case-specific deadlines and dates, such as the deadline to file a motion for class certification or a date on which the parties are available for a Markman (patent claim construction) hearing; g. A date by which the parties shall have engaged in face-to-face good faith settlement talks; h. Whether a jury trial has been requested and whether the request for a jury trial is contested (if the request is contested, set forth the reasons); i. Any other matters that will aid the Court and parties in resolving this case in a just, speedy, and inexpensive manner as required by Federal Rule of Civil Procedure 1. 15. A statement indicating whether the parties would prefer that the Court hold a case management conference before issuing a scheduling order—and, if so, an explanation of why this would be helpful. IT IS FURTHER ORDERED that within 10 days, Plaintiff(s) must serve this Order on any Defendant that has not yet appeared or answered. - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated this ___ day of ____, ____. - 5 -
=== Order Requiring 26(f) Report - ERISA Case ===
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA , v. , Plaintiff, Defendants. No. ORDER REQUIRING RULE 26(f) REPORT (ERISA) Pursuant to Rule 16(b)(1) of the Federal Rules of Civil Procedure, the Court will issue a scheduling order after receiving the parties’ Rule 26(f) report. After reviewing the Rule 26(f) report, the Court will set a case management conference if meeting with the parties appears necessary or helpful. Accordingly, IT IS ORDERED as follows: The parties are directed to meet, confer, and develop a Rule 26(f) Joint Case Management Report, which must be filed within 4 weeks of the date of this order. It is the responsibility of Plaintiff(s) to initiate the Rule 26(f) meeting and preparation of the Joint Case Management Report. Defendant(s) shall promptly and cooperatively participate in the Rule 26(f) meeting and assist in preparation of the Joint Case Management Report. The Joint Case Management Report shall contain the following information in separately numbered paragraphs. 1. The parties who attended the Rule 26(f) meeting and assisted in developing 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Joint Case Management Report; 2. A list of all parties in the case, including any parent corporations or entities (for recusal purposes); 3. Any parties that have not been served and an explanation of why they have not been served, and any parties that have been served but have not answered or otherwise appeared; 4. A statement of whether any party expects to add additional parties to the case or otherwise to amend pleadings; 5. The names of any parties not subject to the Court’s personal (or in rem) jurisdiction; 6. A statement indicating whether the parties would prefer that the Court hold a case management conference before issuing a scheduling order—and, if so, an explanation of why this would be helpful. 7. A short statement of the nature of the case (no more than 3 pages), including a description of each claim, defense, and affirmative defense; 8. A discussion of whether Plaintiff(s) is entitled to conduct discovery (including conflict-of-interest discovery) and, if so, the appropriate scope of discovery; 9. Proposed page limits for Plaintiff(s)’ opening brief, Defendant(s)’ response brief, and Plaintiff(s)’ reply brief. (The parties should note that the Court does not permit the filing of a separate statement of facts.); 10. The prospects for settlement, including whether the case is suitable for 11. 12. reference to a United States Magistrate Judge for a settlement conference; The status of any related cases pending before this or other courts; Proposed deadlines for each of the following events. In proposing deadlines, the parties should keep in mind that civil cases should be resolved within 18 months of the filing of the complaint. 28 U.S.C. § 473(a)(2)(B). Once the dates have been set in the Case Management Order, the Court will not vary - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 them without good cause, even if the parties would otherwise stipulate to do so. The Court does not consider settlement talks or the scheduling of mediations to constitute good cause for an extension: a. If there is a dispute as to the need for and/or scope of discovery and/or as to the standard of review, a deadline for Plaintiff(s) to file a motion, not to exceed seven pages, entitled “Motion for ERISA Discovery/Standard of Review Determination,” summarizing its position and a deadline for Defendant(s) to submit a seven-page response brief. (No replies may be filed.) These deadlines should be set as soon as practicable. b. A deadline for any motion to supplement the administrative record. This deadline should occur well before Plaintiff(s)’ opening brief is due. c. A deadline for the completion of fact discovery, if applicable. This deadline should occur at least four months after the deadline for the submission of the parties’ briefs concerning the need for and/or scope discovery and/or standard of review (see subpart (a) above) so the parties have sufficient time to complete whatever discovery is authorized by the Court. Discovery requests must be served and depositions noticed sufficiently in advance of the discovery cutoff date to ensure reasonable completion by the deadline, including time to resolve further discovery disputes. Absent extraordinary circumstances, the Court will not entertain discovery disputes after this deadline; A deadline for filing the administrative record; Deadlines for submission of Plaintiff(s)’ opening brief, Defendant(s)’ response brief, and Plaintiff(s)’ reply brief; d. e. f. A date by which the parties shall have engaged in face-to-face good - 3 - faith settlement talks; g. Any other matters that will aid the Court and parties in resolving this case in a just, speedy, and inexpensive manner as required by Federal Rule of Civil Procedure 1. IT IS FURTHER ORDERED that within 10 days, Plaintiff(s) must serve this Order on any Defendant that has not yet appeared or answered. Dated this ___ day of ____, ____. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 4 -
=== Order Setting Final Pretrial Conference - Criminal ===
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, No. CR Click or tap here to enter text. v. Plaintiff, ORDER SETTING FINAL PRETRIAL CONFERENCE Click or tap here to enter text., [Trial: Click or tap here to enter text.] Defendant(s). Pursuant to Federal Rule of Criminal Procedure 17.1, a Final Pretrial Conference has been set for Click or tap here to enter text. in Courtroom 601, Sandra Day O'Connor U.S. Federal Courthouse, 401 W. Washington St., Phoenix, Arizona 85003. In preparation for the Final Pretrial Conference, it is hereby ordered: 1. Attendance Required. Counsel who will be responsible for the trial of the case must attend the Final Pretrial Conference. The attendees must bring their calendars so trial scheduling can be discussed. 2. Joint Pretrial Memorandum. The parties must jointly develop and file with the Clerk of Court, at least 7 days before the Final Pretrial Conference, a Joint Pretrial Memorandum. The Joint Pretrial Memorandum must contain the following in separate paragraphs: a. Counts. Identify (1) all counts contained in the indictment (or superseding indictment) that will be tried by jury; (2) all counts, if any, in the indictment (or superseding indictment) that have been dismissed; and (3) all counts, if any, the government intends to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 dismiss before trial. b. Forfeiture Allegations. Identify any forfeiture allegation contained in the indictment (or superseding indictment), whether any forfeiture allegation in the indictment (or superseding indictment) has been dismissed, or whether the government intends to dismiss any forfeiture allegation in the indictment (or superseding indictment) before trial. Also identify, where applicable, the status of any pending related civil forfeiture proceeding, and whether the issue of forfeiture shall be determined by jury verdict or by the Court if a guilty verdict is returned by the jury. c. Notices. Identify all Notices of the Government’s Intent to Use Evidence. d. Motions in Limine. Identify all pending motions in limine. e. Other Motions. Identify all pending motions (other than motions in limine). f. Stipulations. Identify and describe any joint stipulation that may be read or otherwise presented to the jury and treated as having been proved at trial. For example: “Stipulation of Fact: The drugs found in Defendant’s vehicle weighed approximately one pound.” Or: “Stipulation of Evidence: Bundles of drugs will be introduced as evidence at trial. There have been no breaks in the chain of custody between when the drugs were seized by law enforcement in this case and the date of trial.” g. Numbers of Witnesses and Exhibits. Identify the approximate number of witnesses to be called and exhibits to be offered at trial. h. Estimated Length of Trial. Propose the estimated amount of time to be allocated for each stage of trial as follows: ___ hours: Jury Selection - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ___ hours: Opening Statements ___ hours: Government’s Case (including rebuttal) ___ hours: Defendant’s Case ___ hours: Closing Arguments ___ hours: Total i. Interpreter. State whether there will be a need for an interpreter at trial. j. Procedures for Expediting Trial. Discuss and report on all available procedures that might be used to expedite trial, including but not limited to: (1) using summary exhibits in place of voluminous documentary evidence; (2) stipulations on authenticity and foundation; (3) presenting direct expert testimony through summary or written reports; and (4) using the courtroom technology to expedite the presentation of evidence. 3. Notices Of Intent. All Notices of the Government’s Intent to Use Evidence must be filed and served at least 7 days before the Final Pretrial Conference. Untimely notices are subject to being summarily denied or stricken by the Court. 4. Motions In Limine. All motions in limine must be filed at least 14 days before the Final Pretrial Conference. Responses must be filed at least 7 days before the Final Pretrial Conference. No replies are permitted. Each party may file no more than five motions in limine. Each motion must include proposed language for the order being sought from the Court, and the proposed language must state with precision the evidence that is subject to the proposed order and the limitation or exclusion placed on the evidence. Additionally, each motion must contain a certification that the movant’s counsel met and conferred in good faith with opposing counsel and the parties could not reach agreement. The motions and responses must be concise and must not exceed three pages in length. Counsel shall be prepared to argue the merits of such motions at the Final Pretrial Conference. - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. Case-Related Documents. The parties must, at least 7 days before the Final Pretrial Conference, file the following documents (and submit copies of these documents in Word format to the chambers email address at [email protected], as well as sending to chambers a paper courtesy copy of any document exceeding ten pages): a. Stipulated Joint Statement Of The Case. This will be read to the jury. If the parties have any disagreement about the statement, the party objecting shall state the reason for its objection below the statement and offer an alternative statement. b. Joint Proposed Voir Dire. To the extent possible, the parties should stipulate to the proposed questions. If the parties have any disagreement about a particular question, they must state the reason for their objection below the question. c. Joint List Of Potential Witnesses. A joint master list of the names of every witness who may be called at trial, to be used during voir dire. d. Joint Proposed Verdict Forms. These should include any proposed special verdict forms or juror interrogatories. e. Joint Proposed Jury Instructions. The joint list must contain the following four sections: (1) A list of all applicable Ninth Circuit Model Civil Criminal Instructions, which are at http://www3.ce9.uscourts.gov/jury- instructions/model-criminal. If a model instruction is requested by both parties, the instruction shall be preceded by “ST” (stipulated-to). If the instruction is requested by only one party, the instruction shall be preceded by either “PL” (Plaintiff) or “DF” (Defendant). (2) Any non-model instructions to which the parties have stipulated, with only one instruction per page. - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (3) Any non-model instructions requested by Plaintiff (numbered consecutively), with only one instruction per page. Plaintiff shall include citation to authority to support the requested instruction. Defendant shall state all objections to such instruction immediately following the instruction and Plaintiff’s authority. Defendant shall support any objection with citation to authority. If Defendant offers an alternative instruction, such alternative instruction shall immediately follow Defendant’s objection. (4) Any non-model instructions requested by Defendant (numbered consecutively), with only one instruction per page. Defendant shall include citation to authority to support the requested instruction. Plaintiff shall state all objections to such instruction immediately following the instruction and Defendant’s authority. Plaintiff shall support any objection with citation to authority. If Plaintiff offers an alternative instruction, such alternative instruction shall immediately follow Plaintiff’s objection. 6. Exhibits. The parties must meet in person to exchange marked copies of all exhibits to be used at trial (excluding impeachment evidence not subject to early disclosure) no later than 7 days before the Final Pretrial Conference. During this meeting, the parties also must eliminate any duplicate exhibits.1 Further information about the Court’s exhibit 1 During the in-person meeting, the exhibits must be in the exact physical form that will be used at trial. In other words, if a party intends to offer a paper exhibit at trial, that party must have a marked paper copy at the in-person meeting, not an electronic copy. Also, the parties should mark their exhibits exactly as they intend to offer them at trial. During trial, exhibits will be admitted or rejected in their entirety. Thus, if any part of an exhibit is objectionable, it will be excluded in its entirety. Ordinarily, the parties will not be permitted to break offered exhibits into admissible sub-parts if an objection is sustained. - 5 - marking procedures can be found in the document entitled “Exhibit Procedures,” which is available at www.azd.uscourts.gov under: Judges’ Information → Orders, Forms and Procedures → Dominic W. Lanza. During trial, the parties must advise the Courtroom Deputy in advance which exhibits will be needed for each witness. All exhibits must be shown to opposing counsel before being offered. 7. Information for Court Reporter. To facilitate the creation of an accurate record, please prepare a “Notice to Court Reporter” one week before the Final Pretrial Conference containing the following information: a. b. c. d. e. f. Proper names, including those of witnesses. Acronyms. Geographic locations. Technical (including medical) terms, names, or jargon. Case names and citations. Pronunciation of unusual or difficult words or names. This notice need not be filed but must be provided via e-mail to Scott Coniam at [email protected]. He can be reached at 602-322-7257. Counsel also must advise the court reporter as soon as possible if they would like to receive a real-time feed or daily turnaround transcript of the proceedings. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 6 -
=== Order Setting Trial and Final Pretrial Conference - Civil Bench Trial ===
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CV Plaintiff, ORDER SETTING TRIAL AND FINAL PRETRIAL CONFERENCE v. , Defendants. IT IS ORDERED that the trial is set to begin on [date] at 9:00 a.m. and conclude on [date] in Courtroom 601, Sandra Day O’Connor U.S. Federal Courthouse, 401 W. Washington St., Phoenix, Arizona 85003. IT IS FURTHER ORDERED that pursuant to Rule 16(d) of the Federal Rules of Civil Procedure, a Final Pretrial Conference shall be held on [2 weeks before trial]. In preparation for the Final Pretrial Conference, it is hereby ordered: 1. Attendance Required. The attorneys (or pro se parties) who will be responsible for the trial of the case must attend the Final Pretrial Conference. The attendees must bring their calendars so trial scheduling can be discussed. 2. Proposed Final Pretrial Order. Timing: The parties must jointly prepare a Proposed Final Pretrial Order and file it with the Court at least three business days before the Final Pretrial Conference. The parties must exchange drafts of the Proposed Final Pretrial Order no later than 14 days before the submission deadline. The Plaintiff(s) has the burden of initiating such communications. The parties also must submit a copy of the Proposed Final Pretrial Order to the Court in 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Word format to [email protected]. Effect: Preparation and lodging of the Proposed Final Pretrial Order in accordance with the requirements of this Order will be deemed to satisfy the disclosure requirements of Rule 26(a)(3) of the Federal Rules of Civil Procedure. Content: The Proposed Final Pretrial Order must include the information prescribed in the “Joint Proposed Final Pretrial Order” form that is available at www.azd.uscourts.gov under: Judges’ Information → Orders, Forms and Procedures → Dominic W. Lanza. The information may not be set forth in the form of a question and must be presented in concise narrative statements. 3. Marking of Exhibits. The parties must meet in person to exchange marked copies of all exhibits to be used at trial no later than 14 days before the submission deadline for the Proposed Final Pretrial Order. During this meeting, the parties also must eliminate any duplicate exhibits.1 Further information about the Court’s exhibit marking procedures can be found in the document entitled “Exhibit Procedures,” which is available at www.azd.uscourts.gov under: Judges’ Information → Orders, Forms and Procedures → Dominic W. Lanza. 4. Preclusion of Undisclosed Matters. The parties are advised that the Court will not allow the parties to offer any exhibit, witness, or other evidence that was not disclosed in accordance with this Order and the Federal Rules of Civil Procedure and listed in the Proposed Final Pretrial Order, except to prevent manifest injustice. 5. Motions in Limine. This case will be tried to the Court, and therefore the parties may not file motions in limine. United States v. Heller, 551 F.3d 1108, 1111-12 1 During the in-person meeting, the exhibits must be in the exact physical form that will be used at trial. In other words, if a party intends to offer a paper exhibit at trial, that party must have a marked paper copy at the in-person meeting, not an electronic copy. Also, the parties should mark their exhibits exactly as they intend to offer them at trial. During trial, exhibits will be admitted or rejected in their entirety. Thus, if any part of an exhibit is objectionable, it will be excluded in its entirety. The parties will not be permitted to break offered exhibits into admissible sub-parts if an objection is sustained. - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (9th Cir. 2009) (“A motion in limine is a procedural mechanism to limit in advance testimony or evidence in a particular area . . . before attempted use of the evidence before the jury. . . . [I]n the case of a bench trial, a threshold ruling is generally superfluous. It would be, in effect, ‘coals to Newcastle,’ asking the judge to rule in advance on prejudicial evidence so that the judge would not hear the evidence.”). 6. Other Case-Related Documents. The parties must—by the deadline for filing the Proposed Final Pretrial Order—file proposed findings and fact and conclusions of law (and submit copies of the same in Word format to the chambers email address). 7. Settlement Discussions: The parties must be prepared to advise the Court at the Final Pretrial Conference of the status of settlement discussions. Should settlement be reached at any time, the parties must promptly file a Notice of Settlement with the Clerk of the Court. 8. Information for Court Reporter. To facilitate the creation of an accurate record, please prepare a “Notice to Court Reporter” one week before the Final Pretrial Conference containing the following information: a. b. c. d. e. f. Proper names, including those of witnesses. Acronyms. Geographic locations. Technical (including medical) terms, names, or jargon. Case names and citations. Pronunciation of unusual or difficult words or names. This notice need not be filed but must be provided via e-mail to Jennifer Pancratz at [email protected]. Counsel also must advise the court reporter as soon as possible if they would like to receive a real-time feed or daily turnaround transcript of the proceedings. 9. Compliance Required. The Court wishes to emphasize to the parties that it views compliance with the provisions of this Order as critical to its case management responsibilities and to the responsibilities of the parties under Rule 1 of the Federal Rules - 3 - of Civil Procedure. Thus, full and complete compliance with this Order is required. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 4 -
=== Order Setting Trial and Final Pretrial Conference - Civil Jury Trial ===
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CV Plaintiff, ORDER SETTING TRIAL AND FINAL PRETRIAL CONFERENCE v. , Defendants. IT IS ORDERED that the trial is set to begin on [date], and the anticipated end date is [date]. The trial will be held from 9:00 to 4:30 p.m. each day in Courtroom 601, Sandra Day O’Connor U.S. Federal Courthouse, 401 W. Washington St., Phoenix, Arizona 85003. IT IS FURTHER ORDERED that pursuant to Rule 16(d) of the Federal Rules of Civil Procedure, a Final Pretrial Conference shall be held on [2 weeks before trial]. In preparation for the Final Pretrial Conference, it is hereby ordered: 1. Attendance Required. The attorneys (or pro se parties) who will be responsible for the trial of the case must attend the Final Pretrial Conference. The attendees must bring their calendars so trial scheduling can be discussed. 2. Proposed Final Pretrial Order. Timing: The parties must jointly prepare a Proposed Final Pretrial Order and file it with the Court at least three business days before the Final Pretrial Conference. The parties must exchange drafts of the Proposed Final Pretrial Order no later than 14 days before the submission deadline. The Plaintiff(s) has the burden of initiating such communications. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The parties also must submit a copy of the Proposed Final Pretrial Order to the Court in Word format to [email protected]. Effect: Preparation and lodging of the Proposed Final Pretrial Order in accordance with the requirements of this Order will be deemed to satisfy the disclosure requirements of Rule 26(a)(3) of the Federal Rules of Civil Procedure. Content: The Proposed Final Pretrial Order must include the information prescribed in the “Joint Proposed Final Pretrial Order” form that is available at www.azd.uscourts.gov under: Judges’ Information → Orders, Forms and Procedures → Dominic W. Lanza. The information may not be set forth in the form of a question and must be presented in concise narrative statements. 3. Marking of Exhibits. The parties must meet in person to exchange marked copies of all exhibits to be used at trial no later than 14 days before the submission deadline for the Proposed Final Pretrial Order. During this meeting, the parties also must eliminate any duplicate exhibits.1 Further information about the Court’s exhibit marking procedures can be found in the document entitled “Exhibit Procedures,” which is available at www.azd.uscourts.gov under: Judges’ Information → Orders, Forms and Procedures → Dominic W. Lanza. 4. Preclusion of Undisclosed Matters. The parties are advised that the Court will not allow the parties to offer any exhibit, witness, or other evidence that was not disclosed in accordance with this Order and the Federal Rules of Civil Procedure and listed in the Proposed Final Pretrial Order, except to prevent manifest injustice. 5. Motions in Limine. The parties must file all motions in limine no later than 1 During the in-person meeting, the exhibits must be in the exact physical form that will be used at trial. In other words, if a party intends to offer a paper exhibit at trial, that party must have a marked paper copy at the in-person meeting, not an electronic copy. Also, the parties should mark their exhibits exactly as they intend to offer them at trial. During trial, exhibits will be admitted or rejected in their entirety. Thus, if any part of an exhibit is objectionable, it will be excluded in its entirety. The parties will not be permitted to break offered exhibits into admissible sub-parts if an objection is sustained. - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [4 weeks before FPTC]. Each party may file no more than five motions in limine. Responses must be filed no later than [2 weeks before FPTC]. No replies are permitted. Each motion in limine must include proposed language for the order being sought from the Court, and the proposed language must state with precision the evidence that is subject to the proposed order and the limitation or exclusion placed on the evidence. The motions and responses must be concise and must not exceed three (3) pages in length. Counsel shall be prepared to argue the merits of such motions at the Final Pretrial Conference. The Court wishes to emphasize that, in its experience, motions in limine are often utilized improperly. The point of a motion in limine is “to exclude anticipated prejudicial evidence before the evidence is actually offered.” Luce v. United States, 469 U.S. 38, 40 n.2 (1984). Thus, it might be permissible for a party to seek a pretrial ruling as to the admissibility of a particular piece of evidence out of concern that the evidence is not only inadmissible but also inherently prejudicial, such that the bell could not be unrung even if an evidentiary objection were made and sustained a trial. In contrast, motions in limine “should rarely seek to exclude broad categories of evidence, as the court is almost always better situated to rule on evidentiary issues in their factual context during trial.” Lankford v. Taylor, 2020 WL 6395294, *3 (D. Ariz. 2020) (citation omitted). See also Manion v. Ameri-Can Freight Sys. Inc., 2019 WL 3718951, *4 (D. Ariz. 2019) (“The point of the motion in limine process is to simplify matters for trial, not create needless complication.”). Additionally, “[a] motion in limine is not the proper vehicle for seeking a dispositive ruling on a claim, particularly after the deadline for filing such motions has passed.” Hana Fin., Inc. v. Hana Bank, 735 F.3d 1158, 1162 n.4 (9th Cir. 2013). For these reasons, the Court’s experience is that trial memoranda often serve as a better vehicle than motions in limine for parties to address anticipated evidentiary issues. Because trial memoranda are not subject to the page limits applicable to motions in limine, the parties are free to use them to brief, in advance of trial, their position as to the admissibility of particular pieces of evidence (or categories of evidence). Additionally, trial memoranda may be used to brief other types of issues that are anticipated to arise at - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 trial, such as claims related to the sufficiency of the evidence. The Court thus encourages the parties to give careful thought to whether issues that might be raised in a motion in limine would be better raised in a trial memorandum. 6. Other Case-Related Documents. The parties must—by the deadline for filing the Proposed Final Pretrial Order—file the following documents (and submit copies of these documents in Word format to the chambers email address): a. b. A stipulated joint statement of the case, which will be read to the jury. A proposed set of voir dire questions. To the extent possible, the parties should stipulate to the proposed questions. If the parties have any disagreement about a particular question, they must state the reason for their objection below the question. c. A joint master list of the names of every witness who may be called at trial, to be used during voir dire. d. Proposed forms of verdict, including any proposed special verdict forms or juror interrogatories. e. A joint list of proposed jury instructions. The joint list must contain the following four sections: (1) A list of all applicable Ninth Circuit Model Civil Jury Instructions, which are available at http://www3.ce9.uscourts.gov/jury-instructions/model-civil. If a model instruction is requested by both parties, the instruction shall be preceded by “ST” (stipulated-to). If the instruction is requested by only one party, the instruction shall be preceded by either “PL” (Plaintiff) or “DF” (Defendant). (2) Any non-model instructions to which the parties have stipulated, with only one instruction per page. (3) Any non-model instructions requested by Plaintiff (numbered consecutively), with only one instruction per page. Plaintiff - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 shall include citation to authority to support the requested instruction. Defendant shall state all objections to such instruction immediately following the instruction and Plaintiff’s authority. Defendant shall support any objection with citation to authority. If Defendant offers an alternative instruction, such alternative instruction shall immediately follow Defendant’s objection. (4) Any non-model instructions requested by Defendant (numbered consecutively), with only one instruction per page. Defendant shall include citation to authority to support the requested instruction. Plaintiff shall state all objections to such instruction immediately following the instruction and Defendant’s authority. Plaintiff shall support any objection with citation to authority. If Plaintiff offers an alternative instruction, such alternative instruction shall immediately follow Plaintiff’s objection. 7. Settlement Discussions: The parties must be prepared to advise the Court at the Final Pretrial Conference of the status of settlement discussions. Should settlement be reached at any time, the parties must promptly file a Notice of Settlement with the Clerk of the Court. 8. Information for Court Reporter. To facilitate the creation of an accurate record, please prepare a “Notice to Court Reporter” one week before the Final Pretrial Conference containing the following information: a. b. c. d. e. Proper names, including those of witnesses. Acronyms. Geographic locations. Technical (including medical) terms, names, or jargon. Case names and citations. - 5 - f. Pronunciation of unusual or difficult words or names. This notice need not be filed but must be provided via e-mail to Jennifer Pancratz at [email protected]. Counsel also must advise the court reporter as soon as possible if they would like to receive a real-time feed or daily turnaround transcript of the proceedings. 9. Compliance Required. The Court wishes to emphasize to the parties that it views compliance with the provisions of this Order as critical to its case management responsibilities and to the responsibilities of the parties under Rule 1 of the Federal Rules of Civil Procedure. Thus, full and complete compliance with this Order is required. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 6 -
=== Preliminary Order ===
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Name, No. CV-XX-XXXXX-XXX-DWL vs. PRELIMINARY ORDER Plaintiff(s), Defendant(s). Name, The parties are advised of the following preliminary policies and procedures that will govern these proceedings. IT IS ORDERED as follows: Governing Rules Both counsel and pro se litigants must abide by the Rules of Practice of the U.S. District Court for the District of Arizona (“Local Rules”) and the Federal Rules of Civil Procedure. Service Deadline Service of the summons and complaint on each defendant must occur within 90 days of filing the complaint. See Fed. R. Civ. P. 4(m). If service cannot occur within 90 days, a request for an extension may be filed before expiration of the 90-day period. Any such request must set forth the reason why service has not been accomplished and request a specific short additional period of time. If the Court believes your reason constitutes “good cause,” it will authorize a brief additional period to accomplish service. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Proof of service must be filed with the Clerk of Court, in the form of an affidavit, promptly after service has been made. See Fed. R. Civ. P. 4(l). It is important to comply with this requirement—absent proof of service, the Court will have no way of knowing that the complaint has been served. This order serves as an express warning that the Court will dismiss this action, without further notice to Plaintiff(s), with respect to any Defendant that is not timely served. See Fed. R. Civ. P. 4(m). Forms of Papers The parties shall adhere to all of the requirements of LRCiv 7.1, including the requirement that text and footnotes shall be no smaller than 13 point. The Court prefers Times New Roman 13-point font. Citations supporting any textual proposition shall be included in the text, not dropped in a footnote. Paper Courtesy Copies Please do not send paper courtesy copies of filings or proposed orders unless specifically ordered to do so by the Court. Amending Pleadings Rule 15 of the Federal Rules of Civil Procedure and LRCiv 15.1 govern pleading amendments. Pursuant to LRCiv 15.1(b), if all parties consent to an amendment, leave of the Court is not necessary, so the parties shall not file a motion or stipulation. A party amending as a matter of course or with the opposing parties’ consent must file a notice of filing the amended pleading. The notice must specify whether the amendment is being made pursuant to FRCP 15(a)(1) (amendment as a matter of course) or 15(a)(2) (amendment with the opposing party’s written consent). If the amendment is with the opposing party’s written consent, the certification required by LRCiv 15.1(b) must be included in the notice, even if consent can be gleaned elsewhere on the record (e.g., consent given during a hearing). If the amendment is as a matter of course, the notice shall specify whether Rule 15(a)(1)(A) or 15(a)(1)(B) permits the amendment and must provide the applicable service date (the date that opened the 21-day window of time in which 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 amendment as a matter of course is permissible). Before filing a motion for leave to amend, the party that wishes to amend must seek the consent of the other parties in an attempt to file the amended pleading pursuant to LRCiv 15.1(b). If any party is unwilling to consent, the motion for leave to amend must indicate which party (or parties) will oppose the request. If a motion for leave to amend a pleading fails to so indicate, the motion will be denied without prejudice for failure to adhere to this order. To amend by any means (as a matter of course, with the opposing party’s consent, or by motion), the amending party must file a copy of the amended pleading that indicates in what respect it differs from the pleading which it amends, by bracketing or striking through the text that was deleted and underlining the text that was added. Microsoft Word users can create this copy by selecting the “Track Changes” option in the “Review” panel before making any changes. Motions and Stipulations Every motion or stipulation, however mundane, must cite the rule(s) and/or law(s) that permit the Court to grant the requested relief. Requests for extensions of time must include a brief explanation of why the extension is needed, to help the Court determine whether there is good cause. See Fed. R. Civ. P. 6(b)(1)(A). To ensure timely case processing, a party moving for an extension of time, enlargement of page limitations, or leave to file a document under seal shall indicate in the motion whether the non-movant opposes the request and intends to file a written response. If such a motion does not so indicate, it may be denied for failure to comply with this Order. Motions and stipulations should be accompanied by electronic (not paper) proposed orders.1 These proposed orders must not include law firm letterhead and must not contain any information identifying the party submitting the order, and they must set forth the relief 1 A proposed order is not necessary for motions that will require a reasoned analysis from the Court, or for stipulations requesting issuance of the Court’s standard protective order with no amendments. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 requested, rather than incorporating the motion or stipulation by reference. See also LRCiv. 7.1(b)(3). The proposed orders must be emailed—in Microsoft Word format (not PDF)—to [email protected]. The subject line of the email must include the case name, case number, the words “proposed order for [name of motion],” and an indication of whether the motion is opposed or unopposed if this is not otherwise apparent from the name of the motion. Rule 12 Motions Are Discouraged Any motion under Federal Rule of Civil Procedure 12 is discouraged if the challenged defect in the pleading can be cured by filing an amended pleading. The Court therefore requires that: (1) before filing a Rule 12(b)(6) motion to dismiss or a Rule 12(c) motion for judgment, the movant must confer with the opposing party to determine whether such motion can be avoided; and (2) the movant must attach a certificate of conferral, certifying that it notified the opposing party of the issues asserted in its motion and that the parties conferred but were unable to agree that the pleading was curable in any part by a permissible amendment offered by the pleading party. See also Local Rule 12(c). The requirement to meet and confer and attach a certificate of conferral applies in equal force to motions to dismiss amended complaints, notwithstanding earlier conferrals and certificates before the complaint was amended. Any motion lacking the required certification may be summarily stricken. Protective Orders The Court’s standard protective order is available on the Judges’ Orders, Forms & Procedures page on the Court’s internet site. If the parties agree that discoverable materials should be kept confidential, they may file a stipulation requesting that the Court issue its standard protective order. If the parties wish to propose additional provisions, they may request and stipulate to the additional proposed language, subject to the Court’s review. In that case, all language added to the standard order by the parties should be redlined into a Word document using “tracked changes,” and the parties’ Word document with the tracked changes must be emailed to chambers. The parties are reminded that the mere fact the 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 parties have designated certain materials or information as confidential pursuant to an agreement or stipulation does not mean the Court will automatically order that filings containing such information be placed under seal. See Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th Cir. 2016). In all cases, the parties shall adhere to the federal and local rules, including LRCiv 5.6, which details the local rules for sealing court records. Motions to Seal LRCiv 5.6 governs sealing of court records in unsealed civil actions. Every motion to seal, including stipulations pursuant to LRCiv 5.6(d), must identify the legal standard applicable to the document at issue and explain why the material sought to be sealed meets that standard. For example, the stringent “compelling reasons supported by specific factual findings” standard articulated in Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006), applies to filed motions and their attachments where the motion is “more than tangentially related to the merits of a case.” Ctr. for Auto Safety, 809 F.3d at 1101. The more specific and compelling the reasons and facts provided are, the more likely it is that the Court will find that compelling reasons justify sealing the documents. Merely noting that a document was designated confidential by a party will not satisfy any applicable legal standard for sealing. Where a party seeks to seal only certain portions of a given document, the unredacted version of the document, which should be lodged under seal pursuant to LRCiv 5.6(c), must include highlighting to indicate which portions of the document the party seeks to redact. Emergencies and Expedited Consideration Any party desiring expedited consideration of a motion or other matter pending before the Court may make such a request by filing a separate Notice for Expedited Consideration. This notice should set forth the grounds warranting accelerated resolution and identify the dates of the imminent events pertinent to the request. A request for expedited consideration that is simply mentioned in the caption/title of the related filing 5 will not be considered—a separate notice must be filed. Requests to Reschedule Court Dates The Court interprets LRCiv 7.3(b) as applying to requests to reschedule court dates due to attorney conflicts. As such, and to enable the court to efficiently manage cases, such requests must be made by motion or stipulation, must indicate the position of each other party, and (unless another party plans to file a written opposition, which would be appropriate only in rare circumstances) must propose to the Court at least three dates/times when all counsel are available for rescheduling purposes. Noncompliance The parties are specifically advised that failure to prosecute, to comply with court orders, or to comply with the Local and Federal Rules may result in dismissal of all or part of this case, default, imposition of sanctions, or summary disposition of matters pending before the Court. See also Local Rule 7.2(i) (“If a motion does not conform in all substantial respects with the requirements of [the Local Rules], or if the [opposing party] does not serve and file the required answering memoranda, . . . such noncompliance may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily.”). IT IS FURTHER ORDERED that Plaintiff(s) must promptly serve a copy of this Order on Defendant(s) and file a notice of service with the Clerk of Court. IT IS FURTHER ORDERED that unless the Court orders otherwise, the Clerk of Court shall terminate without further notice any Defendant in this action that has not been served pursuant to Rule 4(m) of the Federal Rules of Civil Procedure within 90 days of filing the complaint. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
=== Voir Dire Questions - Civil ===
CIVIL VOIR DIRE QUESTIONS Judge Dominic W. Lanza 1. Statement of the Case a. Have any of you read or heard anything about this case from any source whatsoever? b. Given this brief description of the facts, is there anything about this case that would cause you to believe that you could not consider the evidence fairly and impartially according to the law? 2. Plaintiff(s) a. b. c. Plaintiff and Plaintiff’s counsel, please stand. The Plaintiff in this case is _______. Plaintiff is represented by _________. Do any of you know these individuals on any basis, social, professional or otherwise? d. Do any of you know any of the employees in counsel’s office on any basis, social, professional or otherwise? e. (If Plaintiff is a business) Have any of you ever had a business or employment relationship of any kind with Plaintiff? 3. Defendant(s) a. b. c. Defendant and defense counsel, please stand. The Defendant in this case is _______. Defendant is represented by ______. Do any of you know these individuals on any basis, social, professional or otherwise? d. Do any of you know any of the employees in counsel’s office on any basis, social, professional or otherwise? e. (If Defendant is a business) Have any of you ever had a business or employment relationship of any kind with Defendant? 1 4. Jurors a. Did anyone among this jury panel know each other, or work together or serve on jury panels together before assembling here today? 5. Time Qualify & Hardship a. b c. I expect to conduct trial on these dates and times: Would the length of the trial create an undue hardship for any of you? Does anyone have any problem with vision, hearing, or anything that would cause you to have difficulty from observing and sitting for long periods of time? d. Do any of you have any other physical difficulty, health problems, or home problems that might interfere with your ability to serve as a juror in this case? 6. Witnesses and Third Parties a. During the trial of this case, witnesses may be called to testify on behalf of the parties. Do any of you know or have you ever heard of any of these people? b. c. Do any of you know or have you ever heard of any of these people? (If response is yes) Would your knowledge or experience with any of these parties or organizations affect your ability to serve fairly and impartially in this case? 7. Prior Litigation & Relevant Past a. Have any of you or members of your immediate family been a party or witness in any litigation (excluding domestic relations, traffic, or probate)? 8. Legal Knowledge and Application a. This is a civil case which is to be decided by the preponderance of the evidence. This is different from a criminal case where the government has to prove its case beyond a reasonable doubt. Does anyone have a problem applying a lower burden of proof than used in a criminal case? b. Do any of you or any of the members of your family have any legal training? 2 c. I will instruct you on the law at the conclusion of the case. If selected as a juror, you will take an oath to follow the law. Do any of you think you would have trouble following the law if you disagree with it? d. If selected as a juror, would any of you have trouble rendering a verdict based solely on the evidence presented during the trial, setting aside any personal beliefs, opinions, or biases you might have? e. Do you have strong feelings for or against a party who brings a lawsuit? 9. Easel Questions a. Starting with Juror Number One, please stand and answer the questions. (1) Juror number (2) The city where you live (3) Length of time at current residence (4) Education after high school, if any. (5) Marital status (6) Number of children. Ages of children if under 18 (7) Employment (current and former jobs for self/spouse) (8) Prior jury service: civil or criminal, how case(s) resolved (but don’t reveal how you voted) 10. Final Questions a. Does anyone have any other reason whatsoever to believe they can’t serve as a fair and impartial juror in this case? b. c. Counsel for Plaintiff, do you have any further questions at this time?1 Counsel for Defendant, do you have any further questions at this time? 11. Private Questions a. If a juror wishes to answer a question privately, he or she will be requested, by number, to remain in the courtroom during recess. The parties only may ask follow-up questions to the responses generated by the 1 jurors. In other words, counsel may not propound new questions to the entire panel (e.g., “do any of you” or “has anyone . . . .”). 3
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