IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`[PLAINTIFF],
`Plaintiff
`
`v.
`
`[DEFENDANT],
`Defendant.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`Case No. 6:xx-cv-xxx-JDK
`
`SCHEDULING ORDER
`
`Pursuant to Federal Rule of Civil Procedure 16(b) and the Eastern District of
`Texas Local Rules (except as modified herein), the Court, having considered the
`status report submitted by the parties, finds that the following schedule should
`govern the disposition of this case:
`
`As set by the Court 9:00 a.m. JURY SELECTION AND TRIAL before Judge
`Jeremy D. Kernodle, 221 W. Ferguson St., 1st Floor,
`Tyler, Texas.
`
`To be scheduled by
`the Court if
`necessary
`
`A pretrial conference will be conducted, in person, if the
`Court determines such a conference is necessary.
`
`Lead counsel for each party must attend, or, if the party is
`proceeding pro se, the party must attend. Lead counsel and
`pro se parties must have authority to enter into stipulations
`and admissions that would facilitate the admission of
`evidence and reduce the time and expense of trial. All
`pretrial motions not previously decided will be resolved at
`that time, and procedures for trial will be discussed.
`
`14 days before trial
`
`File Responses to Motions in Limine, if any.
`
`28 days before trial
`
`File a Notice of Time Requested for (1) voir dire, (2)
`opening
`statements,
`(3)
`direct
`and
`cross
`examinations, and (4) closing arguments.
`
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`28 days before trial
`
`File Motions in Limine, if any, and pretrial objections.
`
`Motions in limine should not be filed as a matter of course.
`The parties are ORDERED to meet and confer to resolve
`any disputes before filing any motion in limine. Replies to
`responses are not permitted except by leave of Court.
`
`28 days before trial
`
`Settlement Conference Deadline.
`
`See additional details below.
`
`28 days before trial
`
`28 days before trial
`
`28 days before trial
`
`Exchange Exhibits.
`
`Each party intending to offer exhibits shall serve a
`complete set of marked exhibits (including demonstrative
`exhibits) to all opposing parties and shall deliver a set of
`marked exhibits to the Court’s chambers (except for
`large or voluminous items that cannot be easily reproduced).
`
`File Joint Final Pretrial Order, Joint Proposed Jury
`Instructions with citation to authority and Form of
`the Verdict for jury trials.
`
`See additional details below.
`
`Proposed Findings of Fact and Conclusions of Law with
`citation to authority for issues tried to the bench.
`
`Notice of Request for Daily Transcript or Real Time
`Reporting of Court Proceedings due.
`
`If a daily transcript or real time reporting of court
`proceedings is requested for trial or hearings, the party or
`parties making said request shall file a notice with the
`Court.
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`42 days before trial
`
`49 days before trial
`
`56 days before trial
`
`As set by the Court
`
`
`
`
`Objections to Pretrial Disclosures.
`
`Each party must serve a list disclosing any objections and
`the relevant grounds, including any objections under
`Federal Rule of Evidence 402 and 403, to:
`(a) any other party’s deposition designation;
`(b) the admissibility of disclosed exhibits; and
`(c) the use of any witnesses.
`
`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. The
`parties are ORDERED to meet and confer to resolve any
`disputes before filing any objections to pretrial disclosures.
`
`Exchange Rebuttal Deposition Designations.
`
`For rebuttal designations, cross examination line and page
`numbers to be included.
`
`Exchange Pretrial Disclosures (Witness List, Deposition
`Designations, and Exhibit List).
`
`Parties must make all disclosures required by Rule
`26(a)(3)(A)-(B). Any party who proposes to offer deposition
`testimony shall serve a disclosure identifying the line and
`page numbers to be offered.
`
`Dispositive Motions due from all parties and any
`other motions that may require a hearing (including
`Daubert motions).
`
`Motions shall comply with Local Rule CV-56 and Local Rule
`CV-7. Motions to extend page limits will only be granted in
`exceptional circumstances.
`
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`205 days before trial Discovery Deadline
`
`All discovery—including expert discovery—shall be
`completed by this date. The parties may agree to extend this
`discovery deadline, provided (a) the extension does not
`affect the trial setting, dispositive motions deadline,
`challenges to experts deadline, or pretrial submission dates;
`and (b) the parties jointly file written notice of the extension
`with the Court.
`
`175 days after
`Scheduling Order
`entered
`
`30 days after any
`Rule 26(a)(2)
`disclosure
`
`145 days after
`Scheduling Order
`entered
`
`117 days after
`Scheduling Order
`entered
`
`61 days after
`Scheduling Order
`entered
`
`Mediation Deadline
`
`Within seven days after the mediation, the parties shall
`jointly prepare and file a written report, which shall be
`signed by counsel for each party, detailing the date on which
`the mediation was held, the persons present (including the
`capacity of any representative), and a statement informing
`the Court of the outcome of the mediation.
`
`Parties may provide further expert disclosure of expert
`testimony or evidence intended solely to contradict or rebut
`evidence on the same subject matter identified by another
`party under Rule 26(a)(2)(B) within 30 days of the disclosure
`contradicted or rebutted.
`
`Party without the burden of proof on an issue shall file a
`written designation of the name and address of each expert
`witness, if any, who will testify at trial for that party and
`shall otherwise comply with Federal Rule of Civil Procedure
`26(a)(2) and Local Rule CV-26(b).
`
`Party with the burden of proof on an issue shall file a written
`designation of the name and address of each expert
`witness, if any, who will testify at trial for that party and
`shall otherwise comply with Federal Rule of Civil Procedure
`26(a)(2) and Local Rule CV-26(b).
`
`Deadline for Motions for Leave to Join Parties or Amend
`Pleadings.
`
`Parties may petition the Court to modify this deadline for
`good cause.
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`21 days after
`Scheduling Order
`entered
`
`File Notice of Mediator
`
`The parties may jointly file a notice that identifies an agreed
`upon mediator (with a proposed order appointing the
`mediator) or indicates that no agreement was reached. If
`the parties do not reach an agreement, the Court will
`appoint a mediator. The parties should confirm the
`mediator’s availability and schedule mediation before the
`deadline.
`
`
`If any of these dates fall on a weekend or Court holiday, the deadline is
`modified to be the next Court business day. Also note that all deadlines in this order
`are for filing or delivery, not mailing dates.
`
`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.
`
`SETTLEMENT CONFERENCE AND STATUS REPORT
`
`a.
`
`Settlement Conference:
`
`By the deadline provided above, the parties and their respective lead counsel
`shall hold a face-to-face meeting to discuss settlement of this case. Individual
`parties and their counsel shall participate in person, not by telephone or other remote
`means. All other parties shall participate by a representative or representatives, in
`addition to counsel, who shall have unlimited settlement authority and who shall
`participate in person, not by telephone or other remote means. If a party has liability
`insurance coverage as to any claim made against that party in this case, a
`representative of each insurance company providing such coverage, who shall have
`full authority to offer policy limits in settlement, shall be present at, and participate
`in, the meeting in person, not by telephone or other remote means.
`
`b.
`
`Joint Settlement Report:
`
`Within seven days after the settlement conference, the parties shall jointly
`prepare and file a written report, which shall be signed by counsel for each party,
`detailing the date on which the meeting was held, the persons present (including the
`capacity of any representative), a statement regarding whether meaningful progress
`toward settlement was made, and a statement regarding the prospects of settlement.
`
`
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`PRETRIAL MATERIALS
`
`a.
`
`Pretrial Order:
`
`Plaintiff’s counsel shall file the joint pretrial order, which must include each
`matter listed in the final pretrial order available on Judge Kernodle’s website and the
`estimated length of trial. If counsel for any party does not participate in the
`preparation of the joint pretrial order, opposing counsel shall 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.
`
`b. Witness List:
`
`Each party shall file a witness list using the template available on Judge
`Kernodle’s website.
`
`If any witness needs an interpreter, please note this on the witness list. It is
`the obligation of the party offering such a witness to arrange for an interpreter to be
`present at trial.
`
`c.
`
`Exhibit List:
`
`Each party shall file a list of exhibits (including demonstrative exhibits)
`to be offered at trial using the template available on Judge Kernodle’s website. The
`list of exhibits shall describe with specificity the documents or things in numbered
`sequence. The documents or things to be offered as exhibits shall be numbered by
`attachment of gummed labels to correspond with the sequence on the exhibit list and
`identify the party submitting the exhibit. (Modification of Local Rule 26.2(b), (c)). Do
`not use letter suffixes to identify exhibits (e.g., designate them as 1, 2, 3, not as 1A,
`1B, 1C).
`
`Each party’s exhibit list shall be accompanied by a written statement, signed
`by counsel for each party and state that, as to each exhibit shown on the list,
`
`(i)
`
`the parties agree to the admissibility of the exhibit; or
`
`(ii)
`
`the admissibility of the exhibit is objected to, identifying the
`nature and legal basis of any objection to admissibility and the
`name(s) of the party or parties urging the objection.
`
`All parties shall cooperate in causing such statements to be prepared in a
`timely manner for filing with the exhibit lists. Counsel for the party proposing to
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`offer an exhibit shall be responsible for coordinating activities related to preparation
`of such a statement as to the exhibit the party proposes to offer. This includes an
`obligation to make exhibits available for inspection in advance of the deadline for
`filing exhibit lists where a party needs to see exhibits to assess admissibility. The
`Court may exclude any exhibit offered at trial unless such a statement regarding the
`exhibit has been filed in a timely manner. In addition, objections not identified in the
`statement may be waived. The Court expects the parties to confer and agree to admit
`the majority of their exhibits prior to trial.
`
`d.
`
`Deposition Testimony Designations:
`
`Each party shall file a list of designated deposition testimony it intends to offer
`at trial. Each list of deposition designations shall include any rebuttal designations
`by the opposing party. Each list of deposition designations shall also include a
`notation of any objections to the designated deposition testimony.
`
`e.
`
`Jury Charge:
`
`The parties shall submit proposed jury instructions (annotated)1 and a
`proposed verdict form as set forth below.
`
`(i)
`
`Counsel for the Plaintiff shall deliver to counsel for Defendant by
`[49 days before trial] a copy of its proposed charge and verdict
`form.
`
`(ii) Counsel for Defendant shall deliver to counsel for Plaintiff by [42
`days before trial]: (A) a statement, prepared with specificity, of
`any objection to any portion of the Plaintiff’s proposed charge and
`verdict form and (B) the text of all additional or modified
`instructions or portions of the verdict form Defendant proposes.
`Each objection and each such request shall be accompanied by
`citations of authorities supporting defendant’s objection or
`request.
`
`(iii) At a mutually agreed time on or before [35 days before trial],
`the lead attorneys for the parties shall meet face-to-face at either
`(A) a mutually agreeable place, or (B) at the office of counsel
`located closest to Tyler, Texas, for the purposes of (1) discussing,
`and trying to resolve, differences between the parties as to
`language to be included in the Court’s charge to the jury and (2)
`
`
`
`1 “Annotated” means that each proposed instruction shall be accompanied by citation to statutory
`or case authority and/or pattern instructions. It is not sufficient to submit a proposed instruction without
`citation to supporting authority.
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`identifying areas of disagreement that cannot be resolved. Such
`meeting shall be held for a sufficient length of time for there to be
`a meaningful discussion of all areas of disagreement and a
`meaningful attempt to accomplish agreement. Each attorney
`shall cooperate fully in all matters related to such a meeting.
`
`(iv) On or before [28 days before trial], counsel for Plaintiff shall
`file a document titled “Agreed Charge,” which in a single
`document shall contain, in logical sequence, all language to be
`included in the charge, including jury instructions and jury
`questions, about which the parties do not have disagreement and
`all language either party wishes to have included in the charge
`about which there is disagreement. All language of the proposed
`charge about which there is disagreement shall be (A) in bold face,
`(B) preceded by an indication of the identity of the party
`requesting the language, and (C) followed by a listing of citations
`of authorities in favor of and in opposition to the proposed
`language. Objections may be waived if not stated in the Agreed
`Charge.
`
`f.
`
`Voir Dire:
`
`The parties shall file any proposed voir dire questions for the Court to ask
`during its examination of the jury panel as an attachment to the pretrial order. The
`filing should note whether each question is agreed to by both parties or which party
`proposes the question.
`
`g.
`
`Trial Briefs:
`
`Trial briefs may be filed by each party by the deadline for the pretrial order.
`In the absence of a specific order of the Court, trial briefs are not required, but are
`welcomed. The briefing should utilize Fifth Circuit and/or Supreme Court authority
`or relevant state authority to address the issues the parties anticipate will arise at
`trial.
`
`MODIFICATION OF SCHEDULING ORDER
`
`As addressed above, this Order shall control the disposition of this case unless
`it is modified by the Court upon a showing of good cause and by leave of court. Fed.
`R. Civ. P. 16(b)(4). Any request that the trial date of this case be modified must be
`made (a) in writing to the Court, (b) before the deadline for completion of discovery.
`
`DISCOVERY DISPUTES
`
`A magistrate judge is available during business hours to immediately hear
`discovery disputes and to enforce provisions of the rules. The hotline is the best
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`means to obtain an immediate ruling on whether a discovery request is relevant to
`any claims or defenses and on disputes arising during depositions. The hotline
`number is (903) 590-1198. See Local Rule CV-26(e).
`
`Before filing a motion to compel, a motion to quash, or a motion for protection
`from discovery, lead counsel must confer in good faith concerning the disputes. If an
`agreement cannot be reached and counsel believe that the dispute may be quickly
`resolved with a call to the hotline, then counsel should call the hotline. If the dispute
`is not resolved by conferring in good faith or by the magistrate judge via the hotline,
`then a party may file an appropriate motion. Any such motion should include a
`certification by counsel describing the steps taken to comply with this paragraph,
`including whether the parties called the hotline or why they believed that the hotline
`was not appropriate to resolve the dispute.
`
`ELECTRONIC DISCOVERY
`
`In cases involving disputes over extensive electronic discovery, counsel for both
`sides shall review the court’s [Model] Order Regarding E-Discovery in Patent Cases
`before contacting the Hotline or filing motions to compel or to quash. The order can
`be modified for use in any case in which electronic discovery is an issue, and any
`ruling of the court on conduct of electronic discovery will likely be based, at least in
`part, on that model order. See ED Texas Website under Quick Links / Forms / Patent
`Forms / Order Regarding E-Discovery in Patent Cases.
`
`RESOURCES
`
`The Eastern District of Texas website (www.txed.uscourts.gov) contains
`information about Electronic filing, which is mandatory, Local Rules, telephone
`numbers, general orders, frequently requested cases, the Eastern District fee
`schedule, and other information.
`
`COMPLIANCE
`
`A party is not excused from the requirements of this scheduling order by virtue
`of the fact that dispositive motions are pending, the party has not completed its
`investigation, the party challenges the sufficiency of the opposing party’s disclosure,
`or because another party has failed to comply with this Order or the rules.
`
`Failure to comply with relevant provisions of the Local Rules, the Federal
`Rules of Civil Procedure, or this Order may result in the exclusion of evidence at trial,
`the imposition of sanctions by the court, or both. If a fellow member of the Bar makes
`a just request for cooperation or seeks scheduling accommodation, a lawyer will not
`arbitrarily or unreasonably withhold consent. However, the court is not bound to
`accept agreements of counsel to extend deadlines imposed by rule or court order. See
`Local Rule AT-3(j).
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`INQUIRIES
`
`Questions relating to this scheduling order or legal matters should be
`presented in a motion, as appropriate. For questions regarding electronic notice or
`electronic case files, please see the ECF FAQs on the Eastern District of Texas
`website.
`
`
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