Practices and Rules; Case Management Worksheet (Merkl); Joint Pretrial Order (Merkl); Standing Confidentiality Order (Merkl)

=== Practices and Rules ===

Individual Rules & Practices of U.S. Magistrate Judge Taryn A. Merkl United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York Courtroom: 13D South Chambers: 1420 South (718) 613-2560 Email: [email protected] Courtroom Deputy: Kaity Chan (718) 613-2564 [email protected] The United States District Court for the Eastern District of New York is a teaching court. The Court encourages opportunities for law students and junior attorneys to appear and to argue in Court, accompanied and supervised by a more experienced attorney. Requests for leave for law students to argue in Court will be freely granted, and the Court will permit multiple attorneys to argue for one party if this creates an opportunity for junior attorneys to participate. 1. Communications with Chambers. Parties should primarily communicate with the Court via ECF. Each attorney of record must file a Notice of Appearance and will receive notification of all Court orders electronically. 2. Motion Practice. No courtesy copies should be submitted except for dispositive motions submitted in cases where the parties have consented to magistrate judge jurisdiction (see Section 2.B below). A. Non-Dispositive Motions. Except as provided below, parties are directed to comply with the individual rules of the assigned District Judge, the EDNY Local Rules, and the Federal Rules of Civil Procedure, for all motion practice. Motions for extension of time must indicate whether they are on consent. B. Dispositive Motions in Consent Cases Under 28 U.S.C. § 636(c).1 Other than in cases involving a pro se litigant, in all cases in which the parties have consented to magistrate judge jurisdiction under 28 U.S.C. § 636(c), a pre-motion conference letter is required before filing a motion pursuant to Rules 12 or 56 of the Federal Rules of Civil Procedure; any motion for a change of venue; or a motion to amend the pleadings. 1. To request a pre-motion conference, the moving party must submit a letter (not docketed as a motion) of no more than three pages, setting forth the 1 Should all parties consent to magistrate judge jurisdiction, the consent form is available at the link below. The form must be signed by all parties and filed on ECF. http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. 1 bases for the anticipated motion. Any response, of no more than three pages, must be filed and served within three days. 2. After the pre-motion conference, the Court will approve a briefing schedule. The parties may not file their motion papers via ECF until the motion is fully briefed. 3. One courtesy copy of dispositive motions, together with any marked exhibits, should be submitted to Chambers. 3. Discovery Disputes. A. Discovery Motions Under Fed. R. Civ. P. 26 Through 37. Parties must make a good faith effort to resolve disputes before making any discovery motion. See Fed. R. Civ. P. 37(a)(1); E.D.N.Y. Local Civil Rule 37.3(a) (requiring the parties to confer in person or by telephone in a good faith effort to resolve disputes). No motion under Rules 26 through 37, inclusive, of the Federal Rules of Civil Procedure will be heard unless counsel for the moving party has first requested an informal conference with the Court. To request a conference, the parties may write to the Court and describe their dispute in a joint letter of no more than five pages. See Local Civil Rule 37.3(c). The parties must confer as required by Fed. R. Civ. P. 37(a)(1) prior to filing the letter, and must describe their efforts to confer in the joint letter. After receiving the parties’ letter, the Court may schedule a conference. If the dispute cannot be resolved during the conference, the Court may order briefing. B. Deposition Disputes. Parties encountering disputes during depositions must make every effort to resolve the dispute before contacting Chambers. In the event the parties are unable to reach a resolution, the parties are directed to contact Chambers immediately by telephone with all counsel on the line. The Court will either resolve the matter or instruct the parties to move on to other issues in the deposition until such time as the Court can address the dispute. The parties should continue the deposition while waiting for the Court to address the areas in dispute. Under no circumstances should the parties discontinue the deposition without first attempting to contact the Court and/or waiting a reasonable amount of time if the Court is unavailable when the parties first attempt to contact Chambers. 4. Settlement Statements. Once a settlement conference is scheduled before Judge Merkl, parties are required to submit a settlement statement one week in advance of the conference, submitted to the Chambers email address above. These statements are ex parte, confidential, and subject to the protections of Fed. R. Evid. 408. The statements must include the last offer and demand, and a frank assessment of the strengths and weaknesses of each party’s case. The Court may schedule ex parte telephone calls with counsel after review of the statements. 2

=== Case Management Worksheet (Merkl) ===

Case Name: ______________________ Case Number: __-CV-______(___) (TAM) CASE MANAGEMENT WORKSHEET Preparation for Initial Conference Rule 26(f) conference held? Date: Deadline for Rule 26(a) initial disclosures and any HIPAA- compliant records authorizations: Procedures discussed for producing Electronically Stored Information (ESI)? Yes No N/A Confidentiality Order to be submitted for Court approval? Yes No N/A Anticipated number of depositions: First requests for production of documents and for interrogatories due by: Plaintiff(s): Defendant(s): Proposed Deadlines for Pre-Settlement Discovery (Phase I) Agreed upon completion date for Phase I Discovery: (Reciprocal agreed upon document production and other discovery necessary for a reasoned consideration of settlement. Presumptively 60 days after Initial Conference.) Date for pre-settlement status conference with counsel: (Proposed date to report the parties’ preparedness for mediation or a settlement conference. Presumptively 10-15 days after the completion of Phase I Discovery.) Proposed Deadlines for Discovery and Motion Practice (Phase II) Deadline to join new parties or amend pleadings as of right: (Presumptively 15 days after initial settlement conference) All fact discovery completed by: (Presumptively 3.5 months after first requests for documents/interrogatories) Joint status report certifying close of fact discovery: Anticipated number of expert reports: Plaintiff(s): Defendant(s): Exchange of expert disclosures completed by: (Presumptively 30 days after fact discovery) Expert depositions completed by: (Presumptively 30 days after initial expert disclosures) Exchange of rebuttal expert reports by: (Presumptively 30–45 days after initial expert disclosures) All expert discovery completed by: CERTIFICATION OF THE COMPLETION OF ALL DISCOVERY BY: (Presumptively 9 months after Initial Conference) Final date to take first step in dispositive motion practice: (Parties are directed to consult the District Judge’s Individual Rules regarding such motion practice. Presumptively 30 days after completion of all discovery.) Do the parties wish to be referred to EDNY’s mediation program pursuant to Local Rule 83.8? Yes No Do the parties consent to trial before a Magistrate Judge pursuant to 28 U.S.C. § 636(c)? (The fillable consent form may be found at https://www.uscourts.gov/forms/civil-forms/notice-consent-and-reference-civil- action-magistrate-judge. Consenting does not affect a party’s right to a jury trial.) Yes No SO ORDERED: ________________________ TARYN A. MERKL United States Magistrate Judge ________________________ DATE

=== Joint Pretrial Order (Merkl) ===

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------- X ____________ Plaintiff, -against- JOINT PRETRIAL ORDER __-CV-____ (TAM) ____________ ---------------------------------------------------------- X Defendants. The parties having conferred among themselves and with the Court pursuant to Federal Rule of Civil Procedure 16, the following statements, directions, and agreements are adopted as the Pretrial Order herein. I. Full Caption of the Action Note the full case caption. II. Trial Counsel Names, addresses (including firm names), e-mail addresses and telephone numbers of trial counsel. III. Jurisdiction Brief statement by Plaintiff as to the basis of subject matter jurisdiction and a brief statement by each other party as to the presence or absence of subject matter jurisdiction. Such statements shall include citations to all statutes and cases relied on and relevant facts as to citizenship and jurisdictional amount. IV. Claims and Defenses to be Tried Brief summary of the claims and defenses to be tried, without recital of evidentiary matter but including citations to the relevant portions of the complaint as well as all statutes and cases relied on. Include a statement of any claims, defenses or counterclaims that have been disposed of by motion, stipulation, or settlement, or that otherwise will not be pursued at trial. V. Jury/Non-Jury and Length of Trial Statement as to whether the case is to be tried with or without a jury, and the estimated number of total trial days. VI. Stipulations Any stipulations or agreed statements of fact or law. VII. Witnesses A list of witnesses intended to be called, with a brief summary of each witness’ relation to the case and intended testimony. In addition, a table listing the basis for any objection to a witness’ testimony. The table shall look like this: Witness Name Objection Basis for Objection John Doe Hearsay Explanation of objection, if any Each party is requested to make a good faith effort to list only those witnesses it actually intends to call. VIII. Deposition Transcripts A table containing a list of the precise portions of deposition transcripts intended to be introduced at trial, together with any cross-designations or objections by any other party. If voluminous, the parties may present marked deposition volumes at the final pretrial conference in lieu of a designation in this Order, provided that they have discussed or identified to each other any objections to the proposed testimony prior to the final pretrial conference. 2 IX. Exhibits A table containing a list of exhibits intended to be offered, and any objections. The table should also indicate exhibits to which no party objects on grounds of authenticity and exhibits to which no party objects on any grounds. All exhibits must be pre-marked in the order in which they are expected to be used (using numerals for plaintiff’s exhibits and letters for defendant’s exhibits). The table shall look like this: Exhibit Objection Basis for Objection 1. John Doe’s employment record Hearsay Explanation for objection, if any. X. Relief Sought Describe relief sought. SO ORDERED. Dated: Brooklyn, New York _____________, 20___ _____________________________________ TARYN A. MERKL UNITED STATES MAGISTRATE JUDGE 3

=== Standing Confidentiality Order (Merkl) ===

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------- X [ ] Plaintiff(s), -against- [ ], Defendant(s). ---------------------------------------------------------- X ___-CV-_____ ( ) (TAM) CONFIDENTIALITY ORDER It is hereby ordered that the following provisions shall govern claims of confidentiality in these proceedings: (a) The following documents and information may be designated as “confidential,” provided such documents are not public and have not previously been disclosed by the producing party to anyone except those in its employment or those retained by it [check all that apply]: Sensitive Commercial Data, such as confidential or proprietary research, development, manufacturing, commercial or business information, trade secrets, special formulas, company security matters, customer lists, financial data, projected sales data, production data, matters relating to mergers and acquisitions, and pricing data. Sensitive Personal Data, such as personal identifiers, financial information, tax records, and employer personnel records. Medical and Legal Records, including medical files and reports. Non-public criminal history. (b) If any party believes a document not described in the above paragraph should nevertheless be considered confidential, it may make an application to the Court. Such application shall only be granted for good cause shown. 1 (c) An attorney for the producing party may designate documents or parts thereof as confidential by stamping the word “confidential” on each page. If such information is provided in an answer to an interrogatory, the attorney may separately append the information to the main body of the interrogatory responses, mark such appendices “confidential,” and incorporate by reference the appended material into the responses. At the time of a deposition or within ten (10) days after receipt of the deposition transcript, a party may designate as confidential specific portions of the transcript that contain confidential matters under the standards set forth in paragraph (a) above. This designation shall be in writing and served upon all counsel. No objection shall be interposed at deposition that an answer would elicit confidential information. Transcripts will be treated as confidential for this ten-day period. Any portions of a transcript designated confidential shall thereafter be treated as confidential in accordance with this Order. The confidential portion of the transcript and any exhibits referenced solely therein shall be bound in a separate volume and marked “Confidential Information” by the reporter. (d) Documents designated “confidential” shall be shown only to the attorneys, parties, experts, actual or proposed witnesses, court personnel, and other persons necessary to review the documents for the prosecution or defense of this lawsuit. Each person who is permitted to see confidential documents shall first be shown a copy of this Order and shall further be advised of the obligation to honor the confidential designation. Each person who is permitted to see confidential documents, who is not a party or an attorney for a party, shall be required to sign an agreement to be bound by this Order, attached hereto as Exhibit A. The parties agree that any confidential discovery material produced in this litigation may only be used in connection with this litigation. (e) Review of the confidential documents and information by counsel, experts, or consultants in the litigation shall not waive the confidentiality of the documents or objections to production. (f) The inadvertent, unintentional, or in camera disclosure of a confidential document and information shall not generally be deemed a waiver, in whole or in part, of any party’s claims of confidentiality. If at any time prior to trial, a producing party realizes that some portion(s) of the discovery material that the party produced should be designated as “confidential,” the party may so designate by apprising all parties in writing, and providing that the material has not already been published or otherwise disclosed, such portion(s) shall thereafter be treated as confidential under this Order. (g) If a party believes that a document designated or sought to be designated confidential by the producing party does not warrant such designation, the party shall first make a good faith effort to resolve such a dispute with opposing 2 counsel. In the event that such a dispute cannot be resolved by the parties, either party may apply to the Court for a determination as to whether the designation is appropriate. The burden rests on the party seeking confidentiality to demonstrate that such designation is proper. (h) If the parties wish to move to file a document under seal, they must comply with the Eastern District of New York’s Steps for E-Filing Sealed Documents in Civil cases, located at: https://www.nyed.uscourts.gov/sites/default/files/forms/EfilingSealedCV.pdf. (i) Within a reasonable period after the conclusion of the litigation, all confidential material shall be returned to the respective producing parties or destroyed by the recipients. (j) In any application to the Court referred to or permitted by this Order, the Court may exercise discretion in determining whether the prevailing party in such a dispute may recover the costs incurred by it and, if so, the amount to be awarded. (k) This Court will retain jurisdiction over all persons subject to this Order to the extent necessary to enforce any obligations arising hereunder. Dated: Dated: SO ORDERED. Dated: Brooklyn, New York , 20 [Name of counsel] Counsel for [Name of counsel] Counsel for TARYN A. MERKL United States Magistrate Judge Eastern District of New York 3 EXHIBIT A I have been informed by counsel that certain documents or information to be disclosed to me in connection with the matter entitled: have been designated as confidential. I have been informed that any such documents or information labeled “confidential” are confidential by Order of the Court. I hereby agree that I will not disclose any information contained in such documents to any other person. I further agree not to use any such information for any purpose other than this litigation. [Print Name] [Signature] Signed in the presence of: [Attorney] Dated: 4