Instructions; Requirements; Attachment "A" Surveillance Evidence

=== Instructions ===

RULE 26(f) REPORT INSTRUCTIONS United States Magistrate Judge David J. Ayo NOTE: Electronically file this report with the Clerk of Court. Provide opposing counsel with copies of the report. 1. Participants: List all counsel participating in the conference and the parties they represent. 2. Affirmation Regarding Initial Disclosures: The parties shall affirm that they complied with the initial disclosure requirements of Fed. R. Civ. P. 26(a)(1) before the deadline set forth in the Scheduling Order or explain why they have not done so. 3. Jurisdictional Basis: The parties shall state the jurisdictional basis for the suit and any objections to jurisdiction. 4. Brief Description of Claims: Each party asserting a claim, counterclaim, cross-claim, third-party claim, or intervention shall briefly state the following (without merely repeating the content of the pleadings): (a) the specific facts that support the claim; (b) the law and any contractual provision supporting the claim; and (c) the remedy prayed for as to each defendant. 5. Brief Statement of Responses: Each party against whom a claim has been asserted shall provide the following information (without merely repeating the content of the pleadings): (a) the basis or lack thereof for each claim; (b) all affirmative defenses asserted and the legal bases therefor; and (c) whether the dispute in question is one of law, fact, or contractual interpretation. 6. Anticipated Amendments to Pleadings and Motions: Each party shall identify any amendments to the pleadings and any motions (dispositive or otherwise) that it anticipates filing. 7. Anticipated Expert Witnesses: Each party shall state the name (if known) of each anticipated expert witness, the witness’s field of expertise, and the subject matter of the witness’s anticipated testimony. 8. Discovery Plan: The parties received a discovery plan in the Scheduling Order previously issued in this case. If the parties conclude that a more case-specific Scheduling Order is required, they must either set forth an agreed-upon plan or request a telephone conference with the Magistrate Judge. 9. Stipulations: List any matters to which the parties have stipulated. Counsel are encouraged to stipulate to as many factual and legal issues as possible in the interest of reducing pretrial costs and delays. 10. Major Issues of Fact and Law in Dispute: List the major issues of fact and law in dispute. 11. Related Case Information: State whether this case is related in any way to any other pending case, whether federal or state, civil or criminal. If there is a related case, list: (1) the name of the related case; (2) the court in which it is pending; (3) the docket number; (4) the assigned judge; and (5) a brief description of how the cases are related. 12. Surveillance Evidence: In the past, the Court’s Scheduling Order addressed the discovery and admissibility of surveillance evidence. Counsel shall state whether they wish to opt in or opt out of the former procedure. In the event counsel opt out or do not agree, the Court will rule on surveillance issues on a case-by-case basis. The former procedure is as follows: 1. 2. A party must make a timely request for discovery of surveillance evidence. Timeliness means that this request must be made prior to the end of the discovery deadline. An untimely request for surveillance evidence may be treated as any other untimely discovery request. The respondent need not respond to the discovery request and need not indicate whether there exists any such evidence until 21 days before pretrial conference. On or before the deadline, the respondent shall turn over to the requesting party all surveillance evidence in his possession or control which the respondent intends to offer at trial, and shall identify the individual(s) who will be necessary to lay a proper foundation. 3. The respondent has the right to depose or redepose the individual who might have been the subject of the surveillance prior to responding to the discovery request. Page 2 of 4 4. 5. 6. Depositions shall be upon reasonable notice to all parties, and shall be limited in scope to impeachment issues and updating any previous deposition. Offering party will be allowed to present surveillance evidence at trial only if (a) there has been compliance with the regulations set forth above, or (b) good cause is shown for an exception to these rules, or (c) the party subject to surveillance has failed to timely request discovery of the evidence in question. Any party who intends to offer surveillance films or video-tapes into evidence at trial shall meet with all other parties to edit the material and agree on the portions to be shown as required in Paragraph 14(c) which stated: Editing Trial Depositions/Filing Objections. [No later than ten (10) days before trial], all depositions to be used at trial, including video depositions, shall be edited to remove non-essential, repetitious, and unnecessary material as well as objections and colloquy of counsel. All objections to the deposition will be considered waived unless briefed and filed with the Clerk of Court, WITH A COPY DELIVERED TO THE TRIAL JUDGE’S CHAMBERS, on or before the deadline. 13. Alternative Dispute Resolution (ADR): Counsel shall affirm (1) that they obtained their clients’ desires concerning ADR prior to the Rule 26(f) conference, and (2) that, at the Rule 26(f) conference, they discussed in good faith the feasibility of using ADR. Counsel shall state whether ADR will be pursued; if so, then counsel shall identify the stage of the litigation at which ADR is anticipated and state whether the parties agree that a settlement conference with a magistrate judge would be productive. 14. Rule 16 Conference: A Rule 16 conference with the court may be beneficial. Such conferences may be held in chambers or by telephone, and often result in a substantial reduction in the time and expense spent in pretrial preparation. Each party shall state whether it believes a Rule 16 conference would be beneficial. In certain cases, the court may sua sponte schedule a Rule 16 conference. 15. Electronic Courtroom: State whether this case is document intensive, i.e., whether it will likely require the admission of a large number of documents at trial. If so, counsel shall estimate the number of pages or documents involved. In accordance with the Fifth Circuit’s policy, counsel shall plan to present all documents admitted into evidence at a court proceeding (e.g., hearing, conference, or trial) electronically. Page 3 of 4 NOTE: In jury trials, the court generally requires that documents or exhibits be shown to the jury via use of the “Visual Presenter” or via CD-ROM. This is particularly true in document-intensive jury trials. The court’s requirements for the case will be discussed more fully at the final pretrial conference. Judge Ayo’s scheduling order requires that a CD-ROM containing all trial exhibits must be delivered to chambers two weeks before the pretrial conference. 16. Electronically Generated Exhibits or Aids: Describe any electronically-generated exhibits or demonstrative aids that will be used at trial. “Electronically-generated exhibits or aids” refers to any exhibit or demonstrative aid that is CREATED in whole or in part with the aid of computer software, but excludes evidence which is MERELY to be EXHIBITED or presented by way of computer, CD- ROM, or video presenter. 17. Handicap Provisions: Advise the court of any anticipated need for handicap accommodations for any party, witness, or trial participant and identify the nature of the handicap so that the necessary accommodations can be made. 18. Certification: Counsel shall certify that the report is accurate and complete. Page 4 of 4

=== Requirements ===

PRETRIAL ORDER REQUIREMENTS United States Magistrate Judge David J. Ayo 1. Jurisdictional Basis. The jurisdictional basis for all claims shall be explained. 2. Claims and Responses. Any party asserting a claim shall identify the following, as to each claim: (1) the law and any contractual provision supporting the claim; (b) the remedy prayed for as to each defendant; and (c) the law supporting that remedy as to that defendant. This requirement applies to all counterclaims, cross-claims, third-party claims, and interventions, and the parties shall state whether they have stipulated to any intervention. Each party against whom a claim has been asserted shall provide the following information: (a) the basis or lack thereof for each claim; (b) all affirmative defenses asserted and the legal bases therefor; (c) whether the dispute in question is one of law, fact, or contractual interpretation; and (d) the law supporting the responses. If a bench trial is scheduled, the information regarding claims and responses contained in this section shall be supplemented by page-specific citations to supporting jurisprudence as to each claim, remedy, defense, and allegation. FAILURE TO INCLUDE A CLAIM OR DEFENSE IN THIS ORDER WILL CONSTITUTE ABANDONMENT OF THE CLAIM OR DEFENSE. 3. Issues of Fact and Issues of Law. Identify any TRUE issues of fact or law that remain unresolved as of the pretrial conference. 4. Stipulations. List any matters to which the parties have stipulated. Counsel are encouraged to stipulate to as many factual and legal issues as possible in the interest of reducing costs and delays at trial. If the matter will be tried to a jury, counsel shall state whether the stipulations are to be read to the jury. 5. Will Call Witnesses. Each party shall list those witnesses who definitely will be called to testify at trial. Pursuant to this Court’s authority under Fed. R. Civ. P. 16 to modify its scheduling order, the parties are required to provide a will call witness list. 6. May Call Witnesses. Each party shall set out a witness list that conforms to the requirements of Fed. R. Civ. P. 26(a)(3)(A) and (B). 7. Exhibits. Each party shall set out an exhibit list that conforms to the requirements of Fed. R. Civ. P. 26(a)(3)(A)(iii). Pursuant to this Court’s authority under Fed. R. Civ. P. 16 to modify its scheduling order, the parties are required to provide an exhibit list that reflects only those exhibits that will be presented at trial. 8. Objections to Witness and Exhibit Lists. Each party shall list any objections to the witness or exhibits lists of another party, including those objections contained in Fed. R. Civ. P. 26(a)(3)(B). ANY OBJECTIONS NOT SPECIFICALLY STATED IN THE PRETRIAL ORDER ARE DEEMED WAIVED UNLESS EXCUSED BY THE COURT FOR GOOD CAUSE SHOWN. If an exhibit has been objected to, a copy of the disputed exhibit must be made available for review at the pretrial conference. 9. Counsel Affirmations. Counsel for each party shall affirm: a. b. c. d. That he or she is aware that exhibits are to be published to the jury by way of CD-ROM or the Visual Presenter unless consent of this Court is obtained upon a showing of impracticality or prejudice. That he or she is familiar with the Visual Presenter and its operation or note the date he or she has scheduled with this Court’s Courtroom Deputy for training. That good faith settlement negotiations have been engaged in within one week prior to the pretrial conference. The need, if any, for handicap provisions that are provided by the Court.

=== Attachment "A" Surveillance Evidence ===

ATTACHMENT “A” SURVEILLANCE EVIDENCE (1) A party must make a timely request for discovery of surveillance evidence. Timeliness means that this request must be made prior to the end of the discovery deadline. An untimely request for surveillance evidence may be treated as any other untimely discovery request. (2) The respondent need not respond to the discovery request and need not indicate whether there exists any such evidence until 21 days before pretrial conference. On or before the deadline, the respondent shall turn over to the requesting party all surveillance evidence in his possession or control which the respondent intends to offer at trial, and shall identify the individual(s) who will be necessary to lay a proper foundation. (3) The respondent has the right to depose or redepose the individual who might have been the subject of the surveillance prior to responding to the discovery request. (4) Depositions shall be upon reasonable notice to all parties, and shall be limited in scope to impeachment issues and updating any previous deposition. (5) Offering party will be allowed to present surveillance evidence at trial only if (a) there has been compliance with the regulations set forth above, or (b) good cause is shown for an exception to these rules, or (c) the party subject to surveillance has failed to timely request discovery of the evidence in question. (6) Any party who intends to offer surveillance films or video-tapes into evidence at trial shall meet with all other parties to edit the material and agree on the portions to be shown no later than fifteen days before trial. If agreement cannot be reached, appropriate motions shall be filed with the Clerk of Court, AND A COPY DELIVERED TO THE TRIAL JUDGE'S CHAMBERS, no later than 10 days before trial.