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` 2081
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`
`
`§
`§
`§
`§
`§
`
`Case No. 2:11cv30-MHS-CMC
`
`C-CATION TECHNOLOGIES, LLC
`
`v.
`
`COMCAST CORPORATION, ET AL.
`
`
`
`SCHEDULING AND DISCOVERY ORDER
`
`Based on a review of the case, the Court enters this case specific order which controls
`
`pretrial discovery and disposition of this action pending further order of the Court.
`
`I.
`
`SUMMARY OF CRITICAL DATES
`
`PRETRIAL EVENTS
`
`DEADLINES
`
`Deadline to serve initial disclosures (other than damages)
`(¶ 1)
`
`November 30, 2012
`
`Deadline to add additional parties (¶ 2)
`
`December 4, 2012
`
`Deadline to amend pleadings (without leave of Court) (¶
`2)
`
`December 4, 2012
`
`Deadline to exchange proposed terms for construction
`(P.R. 4-1)
`
`December 14, 2012
`
`Deadline to file motions to dismiss (¶ 3)
`
`December 28, 2012
`
`Deadline to exchange privilege logs (¶ 4)
`
`January 4, 2013
`
`Deadline to exchange preliminary claim construction and
`extrinsic evidence (P.R. 4-2)
`
`January 9, 2013
`
`Deadline to file Joint Claim Construction and Prehearing
`
`January 30, 2013
`
`
`
`
` 1
`
`

`

`
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` 2082
`
`PRETRIAL EVENTS
`
`DEADLINES
`
`Statement (P.R.4-3)
`
`Discovery deadline—claim construction
`
`February 28, 2013
`
`Deadline to file opening claim construction brief (P.R. 4-
`5(a))
`
`Deadline to file response to claim construction brief
`(P.R. 4-5(b))
`
`Deadline to file motion for summary judgment of
`indefiniteness
`
`Deadline to file reply to claim construction brief (P.R. 4-
`5(c))
`
`Deadline to file response to motion for summary
`judgment of indefiniteness
`
`Deadline to file reply to motion for summary judgment
`of indefiniteness
`
`March 15, 2013
`
`March 29, 2013
`
`March 29, 2013
`
`April 9, 2013
`
`April 9, 2013
`
`April 16, 2013
`
`Deadline to file claim construction chart (P.R. 4-5(d))
`
`April 16, 2013
`
`Claim construction technology tutorial and hearing (i.e.
`Markman hearing) (P.R. 4-6)
`
`Substantial completion of production of damages-related
`documents
`
`April 30, 2013 at
`9:00 a.m.
`Texarkana, Texas
`
`May 10, 2013
`(2 months before damages
`disclosures are due)
`
`Deadline to serve damages disclosures (¶ 1)
`
`July 10, 2013
`
`2
`
`
`
`
` 2
`
`

`

`
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` 2083
`
`PRETRIAL EVENTS
`
`Deadline to designate expert witnesses and reports on
`issues for which the party bears the burden of proof (¶ 5)
`
`DEADLINES
`
`July 23, 2013
`
`Deadline to disclose willfulness opinions (P.R. 3-7)
`
`August 9, 2013
`
`Deadline to designate expert witnesses and reports on
`issues for which the party does not bear the burden of
`proof (¶ 5)
`
`August 30, 2013
`
`Deadline to notify Court of mediator (¶ 7)
`
`September 10, 2013
`
`Discovery deadline (¶ 6)
`
`Deadline to file letter briefs
`
`September 26, 2013
`
`August 9, 2013
`
`Deadline to complete required mediation (¶ 7)
`
`October 3, 2013
`
`Deadline for dispositive motions (including Daubert
`motions) (¶ 8)
`
`October 10, 2013
`
`Deadline to notify Court of daily transcript or realtime
`request (¶ 10)
`
`November 11, 2013
`
`Deadline for parties to exchange pretrial disclosures (¶ 9)
`
`November 12, 2013
`
`Deadline for parties to exchange objections to pretrial
`disclosures (¶ 9)
`
`November 26, 2013
`
`Deadline for parties to meet and confer on resolving
`objections (¶ 11)
`
`December 3, 2013
`
`Deadline to file pretrial materials (¶ 12)
`
`December 10, 2013
`
`Deadline for parties to exchange exhibits (¶ 13)
`
`January 7, 2014
`
`3
`
`
`
`
` 3
`
`

`

`
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`
`PRETRIAL EVENTS
`
`DEADLINES
`
`Pretrial conference and trial setting in Texarkana, Texas,
`Fourth Floor
`Courtroom (¶ 14)
`
`January 10, 2014
`at 10:00 a.m.
`
`
`II.
`
`DETAILED INSTRUCTIONS
`Pursuant to Rule 16(b) of the Federal Rules of Civil Procedure1
`
` and the local rules of this
`
`Court (except as modified herein), the Court, having considered the joint report submitted by the
`
`parties, finds that the schedule set forth above governs the disposition of this case.
`
`Unless otherwise ordered or specified herein, all limitations and requirements of the
`
`Federal Rules of Civil Procedure and the local rules of this Court must be observed.
`
`The deadlines imposed in this order are firmly in place, absent
`the few exceptions set forth below. A party is not excused from
`the requirements of this order because it has not completed its
`investigation of the case or because another party has not
`complied with the deadlines. A party is not excused from the
`requirements and deadlines set forth due to the status of
`pending motions, including dispositive motions, motions to
`change venue, or motions for continuance.
`
`1.
`
`Initial Disclosures: Initial Disclosures shall consist of the disclosures
`required by Rule 26(a)(1) and the information listed below:
`
`a.
`
`b.
`
`c.
`
`the correct names of the parties to the lawsuit;
`
`the name, address, and telephone number of any
`potential parties;
`
`the legal theories and, in general, the factual bases
`of the disclosing party’s claims or defenses (the
`disclosing party need not marshal all evidence that
`may be offered at trial);
`
`
`
`1 Unless otherwise noted, all references to “Rules” in this order refer to the Federal Rules of
`Civil Procedure.
`
`4
`
`
`
`
` 4
`
`

`

`
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` 2085
`
`d.
`
`e.
`
`the name, address, and telephone number of persons
`having knowledge of relevant facts, a brief
`statement of each identified person’s connection
`with the case, and a brief, fair summary of the
`substance of the information known by such person;
`
`any indemnity or insuring agreements under which
`any person or entity may be liable to satisfy part or
`all of a judgment entered in this action or to
`indemnify or reimburse for payments made to
`satisfy the judgment;
`
`any settlement agreements relevant to the subject
`matter of this action;
`
`a copy of all documents, electronically stored
`information, and tangible things that the disclosing
`party has in its possession, custody, or control and
`that are relevant to the claim or defense of any
`party.
`
`Initial disclosures do not include materials related to damages.
`
`f.
`
`g.
`
`Because documents relevant to any claim or defense are to be
`
`produced, requests for production are unnecessary. However, should a
`
`party believe that certain relevant documents have not been produced, that
`
`party may request said documents by letter. The Court will entertain a
`
`motion to compel documents without the necessity of a movant
`
`propounding formal requests for production.
`
`Damages Disclosures: Damages Disclosures must be completed
`
`by the date set forth above. Damages Disclosures consist of the
`
`disclosures required by Rule 26(a)(1)(A)(iii) including a complete
`
`computation of any category of damages claimed by any party to the
`
`action. The parties must also make available for inspection and copying
`
`the documents or other evidentiary material, unless privileged or protected
`
`5
`
`
`
`
` 5
`
`

`

`
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` 2086
`
`from disclosure, on which each computation is based, including materials
`
`bearing on the nature and extent of injuries suffered.
`
`Duty to Supplement: Each party is under a duty to supplement or
`
`correct its disclosures immediately if the party obtains information on the
`
`basis of which it knows the information disclosed was either incomplete or
`
`incorrect when made, or is no longer complete or true.
`
`2.
`
`Joinder of Additional Parties or Amendment of Pleadings: All joinder
`
`of additional parties or amendments of pleadings must be filed by the date
`
`listed above (without leave of Court). Fed. R. Civ. P. 16(b)(1). Parties
`
`must request leave to amend pursuant to P.R. 3-6(b) if the amended
`
`pleadings will affect infringement or invalidity contentions. A request for
`
`leave is also required if the amendment seeks to add a new patent.
`
`Otherwise, a request for leave is not required on or before the date listed
`
`above.
`
`3.
`
`Motions to Dismiss: All motions asserting defenses under Rule 12(b)(6)
`
`must be filed by the date listed above.
`
`4.
`
`Privilege Logs: There is no duty to disclose privileged documents or
`
`information, but the parties must exchange privilege logs by the deadline
`
`set forth in this order. Privilege logs need not identify privileged
`
`documents dated on or after January 25, 2011, the date Plaintiff filed its
`
`Complaint. No later than thirty days after exchanging privilege logs, any
`
`party may move the Court for an order compelling the production of any
`
`documents or information identified on any party’s privilege log.
`
`6
`
`
`
`
` 6
`
`

`

`
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`
`5.
`
`Experts:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`Designation of Expert(s) and Report(s) by Party
`With the Burden of Proof: Unless otherwise
`stipulated or directed by order, each party must file
`a written designation of the name and address of
`each expert witness who will testify at trial on each
`issue for which that party bears the burden of proof.
`The party must also otherwise comply with Rule
`26(a)(2)—including disclosure of the expert
`report(s). Plaintiff is limited to two testifying
`expert witnesses. Defendants are collectively
`limited to two (2) shared testifying expert
`witnesses.
`
`Designation of Expert(s) and Report(s) on Issues
`on Which the Party Does Not Bear the Burden of
`Proof: Unless otherwise stipulated or directed by
`order, each party must file a written designation of
`the name and address of each expert witness who
`will testify at trial on each issue for which that party
`does not bear the burden of proof. The party must
`also otherwise comply with Rule
`26(a)(2)—including disclosure of the expert
`report(s). Plaintiff and each Defendant Group2 are
`limited to two testifying expert witnesses.
`
`Additional Experts: Each Defendant Group and C-
`Cation may each have up to one additional expert to
`address any issues unique to the claims or defenses
`between C-Cation and that Defendant Group.
`
`Rebuttal Expert(s): If the evidence is intended
`solely to contradict or rebut evidence on the same
`subject matter identified by another party under
`Rule 26(a)(2)(B), the disclosures required under
`Rule 26(a)(2) must be made within the time period
`set forth in this order.
`
`Challenges to Experts: The parties are directed to
`file any objections to, or motions to strike or
`
`
`2 For each of the limitations on discovery, Comcast Cable Communications and Comcast of
`Houston, LLC will be counted as one Defendant Group. Similarly, Longview Cable
`Television Company, Inc. and Kilgore Video, Inc. will be counted as one Defendant Group.
`
`7
`
`
`
`
` 7
`
`

`

`
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`
`
`
`exclude expert testimony no later than the deadline
`for dispositive motions. See ¶ 8.
`
`6.
`
`Completion of Discovery: All discovery—including discovery
`
`concerning expert witnesses—must be completed by the date listed above.
`
`The parties may agree to extend this discovery deadline, provided (i) the
`
`extension does not affect the trial setting, dispositive motions deadline,
`
`challenges to experts deadline, or pretrial submission deadline; and (ii)
`
`written notice of the extension is given to the Court.
`
`Absent further order of this Court, each party’s
`discovery in this cause is limited to the
`disclosures described in this order and the Local
`Patent Rules, together with the following:
`
`Written Discovery:
`Plaintiff may serve up to fifteen (15) interrogatories and
`twenty-five (25) requests for admission collectively on
`Defendants. Plaintiff may serve up to ten (10) additional
`interrogatories and twenty-five (25) additional requests for
`admission on each Defendant Group;
`Defendants may serve up to fifteen (15) collective
`interrogatories and twenty-five (25) collective requests for
`admission on Plaintiff. Each Defendant Group may serve ten
`(10) additional interrogatories and twenty-five (25) additional
`requests for admission on Plaintiff.
`There is no limit on the number of requests for admission
`the parties may serve to establish the authenticity of documents.
`Such requests for admission will be clearly denoted as relating to
`authenticity and shall be served separately from any request for
`admission subject to numerical limitation.
`
`Depositions:
`The parties will work together to reasonably limit the total
`number of depositions. To the extent agreement cannot be
`reached, the parties may seek appropriate relief from the Court.
`Plaintiff may take up to 200 hours of fact depositions of
`party or non-party fact witnesses. Unless the pertinent parties
`agree, or absent leave of the Court, depositions of party fact
`witnesses of any one Defendant Group shall not exceed a total of
`70 hours.
`
`8
`
`
`
`
` 8
`
`

`

`
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`
`Defendants may collectively take up to 200 hours of fact
`depositions of party or non-party fact witnesses. Absent agreement
`among Defendants, the 200 hours shall be divided equally among
`each Defendant Group.
`Time will be counted against Plaintiff’s and Defendants’
`200 hour limits regardless of whether it is used in direct, redirect or
`cross-examination of a witness.
`Each fact witness deposition shall be limited to seven (7)
`hours, unless increased by agreement of the parties. Each
`Plaintiff fact witness, including 30(b)(6) witness, will be made
`available only once, for a single deposition. If multiple Defendant
`Groups wish to depose an individual Plaintiff fact witness,
`Defendants shall apportion the deposition time among themselves.
`The parties agree to identify the corporate designee for
`each 30(b)(6) deposition, as well as identify the topics for which he
`or she is designated, not later than ten (10) business days prior to
`the date of the deposition. If a single witness is designated
`pursuant to F.R.C.P. 30(b)(6) for several topics, the time limit on
`the deposition may be increased beyond seven (7) hours by
`agreement of the parties, or absent agreement, if a party deems
`necessary, it may seek remedy from the Court.
`Depositions on written questions of custodians of business
`records for third parties will not count against the foregoing limits.
`Each expert witness deposition shall be limited to fifteen
`(15) hours. Defendants shall share these fifteen (15) hours of
`deposition time for each of Plaintiff’s expert witnesses, and absent
`agreement among them, the fifteen (15) hours shall be split equally
`among the Defendant Groups.
`Exemptions from discovery: Protected from discovery
`are all items described in F.R.C.P. 26(b)(3) and 26(b)(4). Further,
`experts’ drafting of and draft reports, notes, outlines, and any other
`writings leading up to a served report in this litigation or any other
`litigation are exempt from discovery. Similarly exempt are any
`communications to and from a testifying expert, and all materials
`generated by a testifying expert with respect to his or her work in
`this or any other litigation, unless relied upon by the expert in
`rendering his or her opinions in this litigation.
`
`Subpoenas:
`If a party serves a subpoena on a third party for production
`of documents, it will serve the other parties with a copy of the
`subpoena not later than the same day the subpoena or notice
`thereof is served on the third party. The parties will serve each
`other with copies of any documents produced by the subpoenaed
`third party not later than five (5) business days after receipt of such
`
`9
`
`
`
`
` 9
`
`

`

`
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`
`documents, and not later than five (5) business days prior to the
`deposition of the third party which produced those documents.
`
`Counsel are directed to contact the Discovery Hotline provided by
`
`Local Rule CV-26(f) for resolution of discovery disputes that are not able
`
`to be briefed, such as disputes arising during a deposition.
`
`7.
`
`Mediation: The parties must file a Joint Report informing the Court of
`
`their choice of an agreed-upon mediator. In the event the parties are
`
`unable to agree upon a mediator, the parties must file a notice indicating
`
`the deadlock. The parties will be required to mediate their case pursuant to
`
`the Court-Annexed Mediation Plan. See Local Rule App. H.
`
`8.
`
`Dispositive Motions: All motions that would dispose of all or any part of
`
`this case (including motions for summary judgment and
`
`Daubert motions) must be filed by the date listed above. The parties are
`
`reminded of the page limits set forth in Local Rule CV-7(a)(1) (e.g., no
`
`more than thirty pages per motion). Additionally, if more than one
`
`summary judgment motion is filed, the parties are reminded of the
`
`limitations set forth in Local Rule CV-7(a)(3) (e.g., no more than sixty
`
`pages total for all summary judgment motions filed). The Court will
`
`disregard any pages exceeding these limits.
`
`9.
`
`Pretrial Disclosures and Objections: Unless otherwise directed by order,
`
`the parties must serve the disclosures required by Rule 26(a)(3)(A) by the
`
`pretrial disclosure deadline listed above. (The parties need not file this
`
`information with the Court until the deadline to file pretrial materials.)
`
`With respect to the identification of witnesses who will be called by
`
`10
`
`
`
`
`10
`
`

`

`
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`
`deposition, the parties must also identify the portions of the deposition
`
`transcript that they intend to use.
`
`Within 14 days thereafter, a party must serve a list disclosing any
`
`objections, together with the grounds therefor, to: (i) the use under Rule
`
`32(a) of a deposition designated by another party under Rule
`
`26(a)(3)(A)(ii); (ii) the admissibility of materials identified under Rule
`
`26(a)(3)(A)(iii); and (iii) the use of any witnesses (except for expert
`
`objections) identified under Rule 26(a)(3)(A)(i),3
`
` if any. Objections not so
`
`disclosed, other than objections under Rules 402 and 403 of the Federal
`
`Rules of Evidence, are waived unless excused by the Court for good
`
`cause.
`
`10.
`
`Notice of Request for Daily Transcript or Real Time Reporting: If
`
`either daily transcript or realtime reporting of the court proceedings is
`
`requested for trial, the party or parties making the request must file a
`
`notice with the Court and e-mail the court reporter, Ms. Jan Mason, at
`
`Jan_Mason@txed.uscourts.gov. In no event should this date be less than
`
`sixty days before the pretrial conference.
`
`11. Meet and Confer Requirement: The parties are expected to cooperate in
`
`the exchange of information to ensure that objections may be timely filed.
`
`The parties also must adhere to the meet and confer requirement set forth
`
`in Local Rule CV-7(h) before filing their objections to pretrial
`
`
`3
`Requiring parties to file objections to witnesses disclosed under Rule 26(a)(3)(A) is a
`modification of the requirements of Rule 26(a)(3)(B), which only requires that the parties file
`objections to deposition designations and exhibits.
`
`11
`
`
`
`
`11
`
`

`

`
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`
`materials. This will help to narrow issues that are actually in dispute. The
`
`Court will exclude any exhibit offered at trial unless the parties timely
`
`comply with this section.
`
`12.
`
`Pretrial Materials: All pretrial materials must be filed by the date listed
`
`above. Specifically, by this date the parties must file the following:
`
`a.
`
`Pretrial Order: A joint proposed pretrial order
`must be submitted by Plaintiff’s attorney. See Local
`Rule App. D. If an attorney for either party does not
`participate in the preparation of the joint pretrial
`order, the opposing attorney must submit a separate
`pretrial order with an explanation of why a joint
`order was not submitted (so that the Court can
`impose sanctions, if appropriate). Each party may
`present its version of any disputed matter in the
`joint pretrial order; therefore, failure to agree upon
`content or language is not an excuse for
`submitting separate pretrial orders. When the
`joint pretrial order is approved by the Court, it will
`control all subsequent proceedings in this case.
`
`Witness List: A list of witnesses, in alphabetical
`order, must be filed by each party (a sample form is
`available on the Court’s website,
`www.txed.uscourts.gov). The list must divide the
`persons listed into groups of “will call,” “may
`call,” and “may, but probably not call” and must
`provide:
`
`(i)
`
`(ii)
`
`the names and addresses of each witness;
`
`b.
`
`c.
`
`a brief narrative summary of the
`testimony;
`
`
`(iii) whether the witness has been deposed; and
`
`(iv)
`
`the expected duration of direct and cross examination
`of the witness.
`
`
`Exhibit List and Deposition Testimony
`Designation: A list of exhibits (including
`demonstrative exhibits) and a designation of
`portions of depositions that a party in good faith
`
`12
`
`
`
`
`12
`
`

`

`
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`
`
`
`d.
`
`intends to offer at trial must be filed by each party.
`Regarding the exhibits, the parties must adhere to
`the following requirements:
`
`(i)
`
`
`(ii)
`
`Describe with specificity the documents or
`things in numbered sequence.
`
`Exhibits must be numbered numerically and
`in succession, and must be marked with the
`case number. They must be marked before
`trial with official exhibit stickers. If there
`are multiple parties, exhibit numbers must
`be followed by the party’s last name, i.e.,
`“PX1-Jones” or “DX1-Miller.”
`
`WHENEVER A MULTI-PAGE-EXHIBIT
`IS USED, EACH PAGE OF AN EXHIBIT
`MUST BE SEPARATELY NUMBERED.
`FOR EXAMPLE, IF PLAINTIFF’S
`EXHIBIT 1 IS A THREE-PAGE
`DOCUMENT, THE FIRST PAGE
`SHOULD BE MARKED AS “PX1-1,” THE
`SECOND PAGE MARKED AS “PX1-2,”
`AND THE THIRD PAGE MARKED AS
`“PX1-3.”
`
`
`(iii) Each party must also file written objections
`to the opposing party’s exhibits and
`deposition designations or a notice of no
`objections. Objections must be filed with the
`proposed pretrial order and should identify
`the contested exhibit by number and explain
`in detail the legal basis for the objection.
`The parties should organize their objections
`into discrete categories. Responses to
`objections are due within two business days
`of the filing of the objections.
`
`
`Jury Instructions in Jury and Non-Jury Trials:
`Proposed jury instructions and verdict forms must
`be filed jointly. If the parties disagree on the
`proposed instruction, Plaintiffs should italicize their
`proposed language, and Defendants should
`underline their proposed language. The basis for and
`legal authority supporting each party’s proposed
`language should be set forth in footnotes. The Court
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`e.
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`f.
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`g.
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`h.
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`may seat an advisory jury in a non-jury case. Thus,
`the parties are required to file proposed jury
`instructions even if the parties have not demanded a
`jury.
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`Proposed Findings of Fact and Conclusions of
`Law: In a case involving factual issues to be
`resolved by the Court, proposed findings of fact and
`conclusions of law must be filed by each party.
`Counsel should draft proposed findings in neutral
`language, avoiding argument, and identifying the
`evidence expected to establish each finding.
`Counsel should set forth the proposed findings of
`fact and conclusions of law in separate sections
`composed of concise and separately numbered
`paragraphs. The Court may seat an advisory jury in
`a non-jury case. Thus, the parties must also file
`proposed jury instructions even if the parties have
`not demanded a jury trial.
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`Limited Number of Motions in Limine: Motions
`in limine should not be filed as a matter of course.
`Parties may file motions in limine on no more than
`TEN discrete topics (no subparts) that are actually
`in dispute. (Good faith compliance with the
`conference requirements of Local Rule CV-7(h) will
`help to narrow issues that are actually in dispute).
`The Court will strike all motions in limine that
`contain boilerplate requests, that exceed ten topics,
`or that cover undisputed issues. The moving party
`must promptly notify the Court in the event the
`parties resolve any of the motions in limine.
`Responses to motions in limine are due within two
`business days of the filing of the motion.
`
`Voir Dire: The parties must file any proposed voir
`dire questions which the Court is requested to ask
`during its examination of the jury panel.
`
`Trial Briefs: Trial briefs may be filed by each
`party. In the absence of a specific order of the Court,
`trial briefs are not required, but are welcomed. The
`briefing should utilize Fifth Circuit, Federal Circuit,
`and Supreme Court authority or relevant state
`authority to address the issues the parties anticipate
`will arise at trial.
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`Exchange of Exhibits: No later than three business days before the
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`13.
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`pretrial conference, counsel for each party intending to offer exhibits
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`must exchange a complete set of marked exhibits (including
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`demonstrative exhibits) with opposing counsel.
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`14.
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`Pretrial Conference: A pretrial conference in the case is set on the date
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`and at the location indicated above. Lead counsel for each party must
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`attend, or, if the party is proceeding pro se, the party must attend. Fed. R.
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`Civ. P. 16 (c),(d). Lead counsel and pro se parties must have the authority
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`to enter into stipulations and admissions that would facilitate the
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`admission of evidence and reduce the time and expense of trial. Id. All
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`pretrial motions not previously decided will be addressed at that time, and
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`procedures for trial will be discussed. At the final pretrial conference,
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`the parties will be assigned a specific trial date beginning within four
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`weeks of the final pretrial conference. Parties should be prepared to
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`conduct jury selection at any time after the final pretrial conference.
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`At the final pretrial conference, the parties must submit to the
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`Court one copy of marked exhibits in tabbed, three-ring binders.
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`15. Modification of Scheduling and Discovery Order: As addressed above,
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`this order will control the disposition of this case unless it is modified by
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`the Court upon a showing of good cause and by leave of court. Fed. R.
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`Civ. P. 16(b). Any request that the trial date of this case be modified must
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`be made in writing to the Court before the deadline for completion of
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`discovery. Neither pending motions nor the failure to complete discovery
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`establish good cause for a continuance.
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`16.
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`Sanctions: Should any party or counsel fail to cooperate in doing anything
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`required by this order, such party or counsel or both may be subject to
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`sanctions. If the Plaintiff does not timely file the required pretrial material,
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`the case will be dismissed. If the Defendant/third party does not timely
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`file the required (or other) pretrial material, a default will be entered or the
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`Defendant/third party will not be permitted to present witnesses or exhibits
`
`at trial. Fines or other sanctions, if appropriate, may also be imposed under
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`Rule 16(f). Failure to list a witness, exhibit, or deposition excerpt as
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`required by this order will be grounds for exclusion of that evidence.
`
`This does not apply to testimony, exhibits, or deposition excerpts offered
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`for impeachment; further, the use of unlisted witnesses, exhibits, or
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`deposition excerpts for rebuttal will be permitted if the attorneys could not
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`have reasonably anticipated their need for that evidence.
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`It is SO ORDERED.
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