REVISED 11/7/2022
For Asbestos Cases
SCHEDULING ORDER
This day of , 202 , the Court having conducted an initial Rule
16 scheduling and planning conference pursuant to Federal Rule of Civil Procedure 16(b)
and Local Rule 16.1 on , 202 , and the parties having determined after
discussion that the matter cannot be resolved at this juncture by settlement, voluntary
mediation, or binding arbitration;
IT IS ORDERED that:
1. Rule 26(a)(1) Initial Disclosures and E-Discovery Default Standard.
Unless otherwise agreed to by the parties, the parties shall make their initial disclosures
pursuant to Federal Rule of Civil Procedure 26(a)(1) within five (5) days of the date of
this Order. If they have not already done so, the parties are to review the Default Standard
for Discovery, Including Discovery of Electronically Stored Information (“ESI”), which
is posted on Magistrate Judge Fallon’s section of the Court’s website
(http://www.ded.uscourts.gov) under the “Guidelines” tab, and is incorporated herein by
reference.
2. Joinder of Other Parties and Amendment of Pleadings. All motions to
join other parties, and to amend or supplement the pleadings shall be filed on or before
, 202 .
3. Discovery. 1 Unless otherwise ordered by the Court, the limitations on
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discovery set forth in D. Del. LR 26.1 shall be strictly observed.
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Should the parties agree to modify the number of depositions under Fed. R. Civ.
P. 30, the number of allowed interrogatories under Rule 33, or limit the number of
a. Supplementation of Initial Disclosures.
i. Date for Plaintiff(s) to produce medical and diagnostic materials 2:
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, 202 .
ii. Date for Plaintiff(s) to file Initial Witness and Exhibit Lists
(Factual, Medical and Expert): , 202 .
iii. Date for Defendants to file Joint Witness and Exhibit Lists
(Factual, Medical and Expert): , 202 .
iv. Date for Defendants to file Initial Individual Witness and Exhibit
Lists (Factual, Medical and Expert): , 202 .
b. Discovery Deadlines.
i. Date for Final Discovery Requests: , 202 .
ii. Date for Objections to Final Discovery Requests:
, 202 .
c. Depositions.
i. Limitation on Hours for Deposition Discovery. Each side is limited
to a total of hours of taking testimony by deposition upon oral examination.
ii. Location of Depositions. Any party or representative (officer,
director, or managing agent) of a party filing a civil action in this district court must
ordinarily be required, upon request, to submit to a deposition at a place designated
requests for production and/or requests for admission under Rules 34 and 36 respectively,
they shall include the appropriate proposed provisions in this Order.
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The parties shall meet and confer concerning designation of a defense liaison
counsel and alternate liaison counsel to avoid the necessity of multiple production sets of
discovery to each defendant appearing in the suit. Unless the parties agree otherwise, Fed.
R. Civ. P. 5 and D. Del. LR 5.4 will govern.
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within this district. Exceptions to this general rule may be made by order of the Court or
written agreement of the parties. A defendant who becomes a counterclaimant, cross-
claimant, or third-party plaintiff shall be considered as having filed an action in this Court
for the purpose of this provision.
iii. Date for completion of depositions of Plaintiff(s) alleging
exposure: , 202 .
iv. Date for completion of depositions of all co-worker, product
identification, and other exposure testimony witnesses: , 202 .
v. Date for completion of depositions of all defense fact witnesses:
, 202 .
d. Disclosure of Expert Testimony.
i. Expert Reports. For the party who has the initial burden of proof
on the subject matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is
due on or before , 202 . The supplemental disclosure to contradict or rebut
evidence on the same matter identified by another party is due on or before , 202 .
Reply expert reports from the party with the initial burden of proof are due on or before
, 202 . No other expert reports will be permitted without either the consent of all
parties or leave of the Court. Along with the submissions of the expert reports, the parties
shall advise of the dates and times of their experts’ availability for deposition.
1. Date on which parties shall meet and confer to finalize a
schedule for taking depositions of Plaintiff(s) and Defendants’ experts: , 202 .
2. Date for completion of depositions of all experts called by
any party: , 202 .
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3. Date for completion of depositions of all joint defense
experts: , 202 .
4. Date for completion of depositions of all experts called
individually by a particular Defendant: , 202 .
ii. Objections to Expert Testimony. To the extent any objection to
expert testimony is made pursuant to the principles announced in Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993), as incorporated in Federal Rule of Evidence 702, it
shall be made by motion no later than the deadline for dispositive motions set forth
herein, unless otherwise ordered by the Court.
e. Discovery Cut Off. All discovery in this case shall be initiated so that it
will be completed on or before , 202 . The Court encourages the parties to
serve and respond to contention interrogatories early in the case.
f. Discovery Matters and Disputes Relating to Protective Orders. Should
counsel find they are unable to resolve a discovery matter or a dispute relating to a
protective order, 3 the moving party (i.e., the party seeking relief from the Court) should
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file a “[Joint] Motion for Teleconference to Resolve [Protective Order or Discovery]
Dispute.” The suggested text for this motion can be found in Magistrate Judge Fallon’s
section of the Court’s website, in the “Forms” tab, under the heading “Discovery Matters
- Motion to Resolve Discovery Dispute.”
The Court will thereafter order a discovery dispute telephone conference and
deadlines for submissions. On the date set by the Court, generally not less than seventy-
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Counsel shall verbally discuss the issues/concerns before seeking the Court’s
intervention.
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two (72) hours prior to the teleconference, excluding weekends and holidays, the party
seeking relief shall file with the Court a letter, not to exceed four (4) pages, in no less
than 12-point font, outlining the issues in dispute and its position on those issues. This
submission shall include a proposed order, attached as an exhibit, setting out the nature of
the relief requested. On the date set by the Court, generally not less than forty-eight (48)
hours prior to the conference, excluding weekends and holidays, any party opposing the
application for relief may file a letter, not to exceed four (4) pages, in no less than 12-
point font, outlining that party’s reason for its opposition. Two (2) courtesy copies of the
letters are to be hand delivered to the Clerk’s Office within one hour of e-filing. All
courtesy copies shall be double-sided.
Should the Court find further briefing necessary upon conclusion of the telephone
conference, the Court will order it. Disputes or issues regarding protective orders, or
motions for extension of time for briefing case-dispositive motions which are related to
discovery matters are to be addressed in accordance with this Order.
4. Application to Court for Protective Order. Should counsel find it will
be necessary to apply to the Court for a protective order specifying terms and conditions
for the disclosure of confidential information, counsel should confer and attempt to reach
an agreement on a proposed form of order and submit it to the Court within ten (10) days
from the date of this Order. Should counsel be unable to reach an agreement on a
proposed form of protective order, counsel must follow the provisions of Paragraph 3(f)
above.
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Any proposed protective order should include the following paragraph:
Other Proceedings. By entering this order and limiting the
disclosure of information in this litigation, the Court does
not intend to preclude another court from finding that
information relevant and subject to disclosure in another
case. Any person or party subject to this order who becomes
subject to a motion to disclose another party’s information
designated “confidential” [the parties should list any other
level of designation, such as “highly confidential,” which
may be provided for in the protective order] pursuant to this
order shall promptly notify that party of the motion so that
the party may have an opportunity to appear and be heard on
whether that information should be disclosed.
5. Papers Filed Under Seal. When filing papers under seal, counsel shall
follow the District Court’s policy on Filing Sealed Civil Documents in CM/ECF and
section G of the Administrative Procedures Governing Filing and Service by Electronic
Means. A redacted version of any sealed document shall be filed electronically within
seven (7) days of the filing of the sealed document.
6. Courtesy Copies. The parties shall provide to the Court two (2) courtesy
copies of all briefs and two (2) courtesy copies of any other document filed in support of
any briefs (i.e., appendices, exhibits, declarations, affidavits, etc.). This provision also
applies to papers filed under seal.
7. ADR Process. No ADR referral will be made to a Magistrate Judge. The
parties are directed to comply with the Court’s Standing Order 2022-2.
8. Interim Status Report. On , 202 , counsel shall submit a
joint interim report to the Court on the nature of the matters in issue and the progress of
discovery to date.
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9. Status Conference. On , 202 , the Court will hold a Rule
16(a), (b) and (c) conference by telephone with counsel beginning at .m.
Plaintiff’s counsel shall initiate the telephone call. At the time of this conference, counsel
shall also be prepared to discuss the progress, if any, of settlement discussions and shall
be prepared to discuss the possibility of setting up a settlement conference with the Court,
counsel and their clients. If all parties agree that there is nothing to report, nor anything to
add to the interim status report, they shall notify the Court in writing before the
conference is scheduled to occur, and the conference will be taken off the Court’s
calendar.
10. Case Dispositive Motions. All case dispositive motions, an opening brief,
and affidavits, if any, in support of the motion shall be served and filed on or before
, 202 . Briefing will be presented pursuant to the Court’s Local Rules. No
case-dispositive motion under Rule 56 may be filed more than ten (10) days before the
above date without leave of the Court. Any references to exhibits in the briefs must cite
the specific pages of the exhibit proffered in support of a party’s argument. If the exhibit
is a deposition, both the page and line numbers must be specified. 4 A party seeking leave
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to file a case dispositive motion prior to ten (10) days before the deadline set forth above
shall do so by filing a letter brief with the Court of no more than four (4) pages,
explaining the reasons why an earlier-filed motion should be permitted. If any party
wishes to contest this request, it may do so by filing a responsive letter brief of no more
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For example, a citation to an exhibit that references the entire document will not
be accepted and is not consistent with this provision.
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than four (4) pages, within seven (7) days from the date the requesting party filed its
brief. No reply briefs shall be filed.
11. Applications by Motion. Except as otherwise specified herein, any
application to the Court shall be by written motion filed with the Clerk. Unless otherwise
requested by the Court, counsel shall not deliver copies of papers or correspondence to
Chambers. Any non- dispositive motion should contain the statement required by Local
Rule 7.1.1.
12. Pretrial Conference. On ____________, 202 , the Court will hold a
Pretrial Conference in Court with counsel beginning at .m. Unless otherwise ordered by
the Court, the parties should assume that filing the pretrial order satisfies the pretrial
disclosure requirement of Federal Rule of Civil Procedure 26(a)(3). The parties shall file
with the Court the joint proposed final pretrial order with the information required by the
form of Final Pretrial Order which accompanies this Scheduling Order on or before [a
date 7 days before the Pretrial Conference], 202 . Unless otherwise ordered by the Court,
the parties shall comply with the timeframes set forth in Local Rule 16.3(d)(1)–(3) for the
preparation of the joint proposed final pretrial order. The Court will advise the parties at
or before the above-scheduled pretrial conference whether an additional pretrial
conference will be necessary.
13. The parties shall provide the Court two (2) double-sided courtesy copies
of the joint proposed final pretrial order and all attachments. The proposed final pretrial
order shall contain a Table of Contents.
14. Motions in Limine. Motions in limine shall not be separately filed. All in
limine requests and responses thereto shall be set forth in the proposed pretrial order.
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Each party shall be limited to three (3) in limine requests, unless otherwise permitted by
the Court. The in limine request and any response shall contain the authorities relied
upon; each in limine request may be supported by a maximum of three (3) pages of
argument and may be opposed by a maximum of three (3) pages of argument. If more
than one party is supporting or opposing an in limine request, such support or opposition
shall be combined in a single three (3) page submission, unless otherwise ordered by the
Court. No separate briefing shall be submitted on in limine requests, unless otherwise
permitted by the Court.
15. Jury Instructions, Voir Dire, and Special Verdict Forms. Where a case
is to be tried to a jury, pursuant to Local Rules 47 and 51 the parties should file joint (i)
proposed voir dire, (ii) preliminary jury instructions, (iii) final jury instructions, and (iv)
special verdict forms three (3) full business days before the final pretrial conference. This
submission shall be accompanied by a courtesy copy containing electronic files of these
documents in Microsoft Word format, which may be submitted by email to
[email protected].
16. Trial. This matter is scheduled for a ____ day trial beginning at 9:30 a.m.
on _________, 202 with the remaining trial days beginning at 9:00 a.m. Until the case is
submitted to the jury for deliberations, the jury will be excused each day at 4:30 p.m. The
trial will be timed, as counsel will be allocated a total number of hours in which to
present their respective cases.
Sherry R. Fallon
United States Magistrate Judge
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