Pretrial Order and Case Management Plan

=== Pretrial Order and Case Management Plan ===

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION CIVIL ACTION NO. _:__-CV-___-DCK

v.

Plaintiffs,

PLAINTIFF(s), ____________________________________)

DEFENDANT(s),

Defendants.

PRETRIAL ORDER AND CASE MANAGEMENT PLAN

IN ACCORDANCE WITH the Local Rules of the Western District of North Carolina and

pursuant to Rule 16 of the Federal Rules of Civil Procedure, the undersigned enters the following

Pretrial Order and Case Management Plan in this matter.

DEADLINES AT A GLANCE

Rule 26 Disclosures:

X = 30 days from this Order

Identify Mediator:

X + 1 mos.

Expert Reports:

X + 3 mos. (Plaintiffs) X + 4 mos. (Defendants)

Discovery Completion:

X + 7 mos.

ADR Report:

Motions:

Trial Term:

X + 7 ½ mos.

X + 8 mos.

X + 12 mos.

I. DISCOVERY

A.

THE MAINTENANCE OF DISCOVERY MATERIALS: Discovery materials are NOT

to be filed. The parties are responsible for the preservation of any and all discovery

materials they may generate.

B.

RULE 26 DISCLOSURES: The information required by Federal Rule of Civil Procedure

26(a)(1) shall be exchanged no later than X.

C.

DISCOVERY REQUESTS: Each party may propound no more than twenty (20) single

part interrogatories to any other party; each party may submit no more than twenty-five (25)

requests for admissions to any other party; each party may depose no more than six (6) fact

witnesses without prior approval of the Court. Parties may, however, by agreement, increase

the numbers set forth in this paragraph, and if unable to agree, may then seek Court

intervention by motion.

D.

RESPONSES TO INTERROGATORIES AND REQUESTS FOR ADMISSION: Every

response to an interrogatory or request for admission, and every objection thereto, shall be

preceded by the original number and complete text of the corresponding interrogatory or

request for admission.

E.

EXPERT WITNESSES: Each side shall be entitled to call up to five (5) expert witnesses

without further leave of the Court. Reports of retained experts under Fed.R.Civ.P. 26(a)(2)

will be due from Plaintiffs by X + 3 mos., and from Defendants by X + 4 mos.

Supplementations under Fed.R.Civ.P. 26(e) shall be ongoing throughout these proceedings.

F.

PROTECTIVE ORDERS: Any objections made to discovery requests shall be

accompanied by a draft proposed protective order if such order is, or will be, requested.

When counsel submit proposed protective orders, they shall include a provision leaving the

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ultimate disposition of protected materials subject to a final order of the Court on the

completion of litigation.

G.

DEPOSITIONS: If video depositions are taken and counsel intend to use them at trial,

counsel are directed to resolve any objections and edit the video accordingly so that the

video may be shown without interruption. Failure to do so prior to trial will result in

objections being deemed to be waived.

Depositions taken for the sole purpose of preserving testimony for trial are not

considered discovery for the purposes of this section provided that: 1) the witness will be

unavailable for trial for one of the reasons set forth in Fed.R.Civ.P. 32(a)(4); and 2) the

reason for such unavailability is that the witness resides outside the subpoena power of this

Court and the party seeking to take such deposition has failed, after making a good faith

effort, to obtain a commitment from the witness to testify at trial voluntarily; and 3) such

deposition can be concluded no later than fourteen (14) days prior to the trial date.

H.

DISCOVERY COMPLETION: All discovery shall be completed no later than X + 7 mos.

Counsel are directed to initiate discovery requests and notice or subpoena depositions

sufficiently in advance of the discovery completion deadline so as to comply with this Order.

Discovery requests that seek responses or schedule depositions after the discovery

completion deadline are not enforceable except by order of the Court for good cause shown.

The parties may consent to extensions of the discovery completion deadline so long as any

such extension expires not later than ten (10) days prior to the trial date. If a party requests

an extension of time to respond to discovery requests or to extend the discovery deadline,

the result of consultation with opposing counsel must be stated in the motion.

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II. MOTIONS

A.

MOTIONS DEADLINE: All motions except motions in limine and motions to continue

shall be filed no later than X + 8 mos. Parties may not extend this deadline by agreement

and stipulated extensions of the completion of discovery do not extend the Motions

Deadline.

B.

MEMORANDA IN SUPPORT OF MOTIONS: Every motion shall include, or be

accompanied by, a brief written statement of the facts, and a statement of the law, including

citations of authority and the grounds on which the motion is based. Motions not in

compliance with this Order and the Local Rules are subject to summary denial.

C.

RESPONSES AND REPLIES: Responses to motions must be filed within fourteen (14)

days of the date on which the motion is served, as evidenced by the certificate of service

attached to said motion. A reply to the response to a motion, if any, shall be filed within

seven (7) days of the date on which the response is served. A party that does not wish to file

a reply must promptly file such notice with the Court.

D.

EXTENSIONS OF TIME: If a party needs additional time to file a motion, response, or

reply, a motion for extension of time shall be filed. The moving party must state within the

motion what actions have been undertaken to consult with opposing counsel regarding the

requested extension, and must notify the Court of the views of opposing counsel regarding

the request. If the party fails to make the requisite showing, the Court may summarily deny

the request.

E.

MOTIONS TO COMPEL: A motion to compel must include a statement by the movant

that the parties have conferred in good faith in an attempt to resolve the dispute and are

unable to do so. Consistent with the spirit, purpose, and explicit directives of the Federal

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Rules of Civil Procedure, the Court expects all parties to attempt in good faith to resolve

discovery disputes without the necessity of Court intervention. Failure to do so may result

in appropriate sanctions.

F.

HEARINGS: Hearings on motions ordinarily will be conducted only when the Rules

require a hearing, or when the Court finds that oral argument might assist the decision-

making process. The Clerk of Court will notify all parties of the date, time, and location of

any hearing.

III. ALTERNATIVE DISPUTE RESOLUTION

A.

METHOD: The method of Alternative Dispute Resolution (“ADR”) to be utilized in this

case is: Mediation / Judicial Settlement Conference / Other.

B. MEDIATOR: Within sixty (60) days of the entry of this Order, the parties shall select and

agree upon a mediator and shall file with the Court a report stating the identity of the

mediator selected, or a report stating that they have been unable to agree upon a mediator

and the reasons for such inability.

C.

DEADLINE: ADR must be completed, and a report on the results of ADR filed, on or

before X + 7 ½ mos. The report shall state whether all, a portion, or none of the case has

settled.

D.

SETTLEMENT: Within thirty (30) days of reaching a settlement agreement, the parties

shall file a Stipulation of Dismissal and/or any other documents necessary to effectuate the

closing of the case.

IV. PRETRIAL PROCEDURES

A.

COUNSEL’S DUTIES PRIOR TO TRIAL:

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(1) No later than ten (10) days before the Final Pretrial Conference, counsel for all

parties shall:

(a)

Discuss the possibility of a settlement;

(b)

Number and become acquainted with all exhibits;

(c)

Exchange copies of exhibits or permit inspection if copying is

impractical; and

(d)

File any motions in limine.

(2) No later than seven (7) days before the Final Pretrial Conference, counsel for all

parties shall:

(a)

Agree upon the issues, reduce them to writing, and file them with the

Court. If counsel cannot agree upon the issues, each party is directed

to write his/her own version and file it with the Court; and

(b)

Agree upon stipulations of fact and file them with the Court. The

parties are encouraged to stipulate to as many facts as possible to

facilitate the trial of the case.

(3) No later than three (3) days before the Final Pretrial Conference, counsel for all

parties shall:

(a)

(a)

File responses to any motions in limine;

File a trial brief addressing all questions of law and any anticipated

evidentiary issues;

(b)

In all non-jury cases, file proposed Findings of Fact and Conclusions

of Law; and

(c)

Submit proposed jury instructions to the undersigned’s chambers.

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(4) No later than the morning of the day on which jury selection is scheduled to

begin, counsel for each party shall file the following documents with the Clerk of

Court and provide a hard copy to the presiding judge or his courtroom clerk:

(a)

(b)

A witness list containing the name of every proposed witness;

A statement of the education, experience, and qualifications of each

expert witness, unless the parties have stipulated to the qualifications

of each expert witness;

(c)

Stipulations concerning the authenticity and admissibility of as many

proposed exhibits as possible; and

(d)

An exhibit list.

B.

FORMAT FOR EXHIBIT LIST: In preparing the exhibit list, counsel separately shall

identify and number each exhibit, shall arrange the list numerically by exhibit number, and

shall place the following headings on the exhibit list: Exhibit #; Description; Stipulation

of Authenticity; Stipulation of Admissibility; Objection; Identified by; and Admitted. It

is not necessary for counsel to make entries in either the “Identified by” column or the

“Admitted” column. Counsel should only enter “Yes” or “No” for each exhibit in the

columns regarding the stipulations of authenticity and admissibility.

C.

EXHIBITS: Parties are expected to use presentation technology available in the courtroom

to display evidence to the jury. Training on the equipment should be arranged well in

advance of trial with the courtroom deputy. See “Courtroom Technology” link on the

district website at www.ncwd.uscourts.gov.

Counsel shall provide in electronic format any exhibits of documents, photographs,

videos, and any other evidence that may be reduced to an electronic file, for the use of Court

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personnel and the Court’s Jury Evidence Recording System (JERS) during trial. Documents

and photographs shall be in .pdf, .jpg, .bmp, .tif, or .gif format; video and audio recordings

shall be in .avi, .wmv, .mpg, .mp3, .wma, or .wav format. Each electronic exhibit shall be

saved as a separate, independent file, and shall be provided to the Court on a storage device,

such as cd, dvd, or flash drive. Exhibit files shall be named consistent with their order and

name on the exhibit list. For example:

Exhibit 1 - photograph of . . .

Exhibit 2(a) - contract

Exhibit 2(b) - video deposition of . . . .

D.

EXHIBIT NOTEBOOKS: If counsel for any party intends to tender more than fifteen (15)

documentary exhibits, counsel for that party shall prepare four (4) identical exhibit

notebooks, or sets of exhibit notebooks. Each exhibit notebook, or set of exhibit notebooks,

shall contain an index of the exhibits and a copy of each exhibit. Counsel shall tab each

exhibit and shall numerically arrange each exhibit notebook, or set of exhibit notebooks.

Four (4) identical exhibit notebooks, or sets of exhibit notebooks, are necessary so that the

witness and Court personnel each have an exhibit notebook, or set of exhibit notebooks.

E.

DEPOSITION TESTIMONY: If a party will offer deposition testimony as evidence at

trial, the parties are to prepare the following at least seven (7) days before the trial date:

(1) The party originally offering the testimony shall highlight in yellow all portions

of the deposition testimony it will seek to have admitted;

(2) That party shall then provide the highlighted copy to the opposing party;

(3) The opposing party shall highlight in a different color all portions of the

deposition testimony it will seek to have admitted;

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(4) The opposing party shall then list briefly in the margins, directly adjacent to the

relevant testimony, any objections it has to that testimony (e.g., 401, hearsay);

(5) The opposing party shall then return the document to the party originally

offering the testimony, who will list objections to the opposing party’s highlighted

portion; and

(6) The party originally offering the testimony shall then file the document.

F.

TRIAL SUBPOENAS: Counsel must subpoena all witnesses at least ten (10) days before

the trial date. The Court may elect not to enforce subpoenas that have not been issued in

compliance with this deadline or, if requested, may quash subpoenas that have not been

issued in compliance with this deadline.

G.

PROPOSED JURY INSTRUCTIONS: If a jury trial has been requested, all counsel shall

submit proposed jury instructions to the undersigned’s chambers no later than three (3) days

before Final Pretrial Conference. Additional instructions may be submitted during the trial

as circumstances may require. Counsel should number each proposed instruction and shall

submit each proposed instruction on a separate page. Each proposed instruction must

contain a supporting citation(s) as a footnote. A proposed instruction without a supporting

citation will not be considered. Boilerplate introductory instructions are not required to be

submitted.

H.

JURY VOIR DIRE: Following initial voir dire by the Court, counsel will be given a

limited opportunity to conduct additional voir dire, subject to the Court’s supervision for

reasonableness and relevance.

I.

ASSESSMENT OF JURY COST: Whenever a civil action scheduled for a jury trial is

settled or otherwise disposed of in advance of the actual trial, the Court may assess all

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jurors’ costs, including Marshal’s fees, mileage reimbursement, and per diem fees, equally

against the parties or otherwise may determine appropriate assessments, unless the Clerk’s

Office is notified at least one (1) full business day prior to the date on which the action is

scheduled for trial or the parties establish good cause why the Court should not assess jury

costs against the parties. When any civil jury trial is settled at trial in advance of the verdict,

the Court likewise may make the same assessments unless the parties establish good cause

why the Court should not do so.

V. TRIAL

A.

TRIAL DATE: Trial is scheduled to commence with a jury during the first civil trial term

beginning on or after X + 12 mos. The Court will endeavor to set the specific date(s) for

jury selection and trial as far in advance as is practical.

B.

LENGTH OF TRIAL: Trial is anticipated to last five (5) days.

VI. CONCLUSION

To the extent that any provision of the Local Rules conflicts with this Order, this Order shall

govern. This Order is subject to modification only by Order of this Court and may not be modified

by agreement among the parties. Failure to comply with any of the provisions of this Order may

result in the imposition of sanctions as provided by the Federal Rules of Civil Procedure.

SO ORDERED.

Signed: January 4, 2012

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