REVISED March 2022
For Non-Patent 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 Court’s Default Standard for Discovery,
Including Discovery of Electronically Stored Information (“ESI”), which is posted on Magistrate
Judge Burke’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. 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 file it with 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 order, counsel
must follow the provisions of Paragraph 6(g) below.
Any proposed protective order must include the following paragraph:
Other Proceedings. By entering this order and limiting the
disclosure of information in this case, the Court does not intend to
preclude another court from finding that information may be
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.
4. 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.
Should any party intend to request to seal or redact all or any portion of a transcript of a
court proceeding (including a teleconference), such party should expressly note that intent at the
start of the court proceeding. Should the party subsequently choose to make a request for sealing
or redaction, it must, promptly after the completion of the transcript, file with the Court a motion
for sealing/redaction, and include as attachments: (1) a copy of the complete transcript
highlighted so the Court can easily identify and read the text proposed to be sealed/redacted; and
(2) a copy of the proposed redacted/sealed transcript. With its request, the party seeking
redactions must demonstrate why there is good cause for the redactions and why disclosure of
2
the redacted material would work a clearly defined and serious injury to the party seeking
redaction.
5. Courtesy Copies. The parties shall provide to the Court two (2) courtesy copies
of all briefs and 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. Unless
ordered differently by the Court, such copies must be provided to the Court by no later than noon
the business day after the filing is made electronically.
6. Discovery. Unless otherwise ordered by the Court, the limitations on discovery
set forth in Local Rule 26.1 shall be strictly observed.
a. Discovery Cut Off. All discovery in this case shall be initiated so that it
will be completed on or before ________, 202_.
b. Document Production. Document production shall be substantially
complete by _______, 202_.
c. Requests for Admission. A maximum of ___ requests for admission are
permitted for each side.
d. Interrogatories.
i. A maximum of ___ interrogatories, including contention
interrogatories, are permitted for each side.
ii. The Court encourages the parties to serve and respond to
contention interrogatories early in the case. In the absence of agreement among the parties,
contention interrogatories, if served, shall first be addressed by the party with the burden of
3
proof. The adequacy of all interrogatory answers shall, in part, be judged by the level of detail
each party provides; i.e., the more detail a party provides, the more detail a party shall receive.
e. 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 Court must ordinarily be
required, upon request, to submit to a deposition at a place designated within this district.
Exceptions to this general rule may be made by order of the Court. 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.
f. 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.
4
ii. Expert Report Supplementation. The parties agree they [will] [will
not] [CHOOSE ONE] permit expert declarations to be filed in connection with motions briefing
(including case-dispositive motions).
iii. 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.
g. Discovery Matters and Disputes Relating to Protective Orders.
i. Any discovery motion filed without first complying with the
following procedures will be denied without prejudice to renew pursuant to these procedures.
ii. Should counsel find, after good faith efforts—including verbal
communication among Delaware and Lead Counsel for all parties to the dispute—that they are
unable to resolve a discovery matter or a dispute regarding a protective order (other than that
involving the initial drafting of a protective order, which is discussed further below), the parties
involved in the discovery matter or protective order dispute shall file a joint letter in substantially
the following form:
Dear Judge Burke:
The parties in the above-referenced matter
write to request the scheduling of a
discovery teleconference.
The following attorneys, including at least
one Delaware Counsel and at least one Lead
Counsel per party, participated in a verbal
5
meet-and-confer (in person and/or by
telephone) on the following date(s):
Delaware Counsel: ___________________
Lead Counsel: _______________________
The disputes requiring judicial attention are
listed below:
[provide here a non-argumentative list of
disputes requiring judicial attention]
iii. The moving party (i.e., the party seeking relief from the Court)
should also file a “Motion For Teleconference To Resolve Discovery Dispute.” The suggested
text for this motion can be found in Judge Burke’s section of the Court’s website, in the “Forms”
tab, under the heading “Discovery Matters - Motion to Resolve Discovery Dispute.”
iv. The Court will thereafter set a discovery dispute telephone
conference and a briefing schedule. The movant’s opening letter brief shall include as
attachments: (1) a proposed order, attached as an exhibit, setting out the nature of the relief
requested of the Court; and (2) to the extent that the dispute relates to responses to certain
discovery requests, an attached exhibit (or exhibits) containing the requests and the responses in
dispute. To the extent that factual issues are disputed or are otherwise central to the Court’s
analysis, the parties shall attach as an exhibit (or exhibits) to their letter briefs sworn declarations
or affidavits regarding those issues. The parties should also consult and follow Judge Burke’s
“Guidelines for Discovery Disputes,” which is found in the “Guidelines” tab on Judge Burke’s
section of the District Court’s website. The parties shall also comply with paragraph 5 regarding
the submission of courtesy copies; if they fail to do so, the telephone conference may be
cancelled.
6
v. Should the Court find further briefing necessary upon the
conclusion of the telephone conference, the Court will order it. Alternatively, the Court may
choose to resolve the dispute prior to the telephone conference and will, in that event, cancel the
conference.
vi. Should counsel find, after good faith efforts—including verbal
communication among Delaware and Lead Counsel for all parties to the dispute—that they are
unable to resolve a dispute regarding the initial drafting of a protective order, the parties involved
in the dispute shall file a joint letter in substantially the following form:
Dear Judge Burke:
The parties in the above-referenced matter
write to request the scheduling of a
teleconference to resolve a protective order
dispute.
The following attorneys, including at least
one Delaware Counsel and at least one Lead
Counsel per party, participated in a verbal
meet-and-confer (in person and/or by
telephone) on the following date(s):
Delaware Counsel: ___________________
Lead Counsel: _______________________
The disputes requiring judicial attention are
listed below:
[provide here a non-argumentative list of
disputes requiring judicial attention]
vii. The parties shall also file a “Joint Motion For Teleconference To
Resolve Protective Order Dispute.” The suggested text for this motion can be found in Judge
7
Burke’s section of the Court’s website, in the “Forms” tab, under the heading “Discovery
Matters - Joint Motion to Resolve Protective Order Dispute.”
viii. The Court will thereafter set a protective order dispute
teleconference and a briefing schedule. Along with their respective letter briefs, each side should
include as an attachment the side’s proposal as to how the content of the disputed portion(s) of
the protective order should read. The parties shall also comply with paragraph 5 regarding the
submission of courtesy copies; if they fail to do so, the telephone conference may be cancelled.
ix. Should the Court find further briefing necessary upon the
conclusion of the telephone conference, the Court will order it. Alternatively, the Court may
choose to resolve the dispute prior to the telephone conference and will, in that event, cancel the
conference.
7. Motions to Amend.
a. Any motion to amend a pleading shall NOT be accompanied by an
opening brief but shall, instead, be accompanied by a letter, not to exceed three (3) single-spaced
pages, describing the basis for the requested relief, and shall attach the proposed amended
pleading as well as a “blackline” comparison to the prior pleading.
b. Within seven (7) days after the filing of a motion in compliance with this
Order, any party opposing such a motion shall file a responsive letter, not to exceed five (5)
single-spaced pages.
c. Within three (3) days thereafter, the moving party may file a reply letter,
not to exceed two (2) single-spaced pages, and, by this same date, the parties may file a letter
requesting a teleconference to address the motion to amend.
8
8. Motions to Strike.
a. Any motion to strike any pleading or other document or testimony shall
NOT be accompanied by an opening brief but shall, instead, be accompanied by a letter, not to
exceed three (3) single-spaced pages, describing the basis for the requested relief, and shall
attach the document to be stricken.
b. Within seven (7) days after the filing of a motion in compliance with this
Order, any party opposing such a motion shall file a responsive letter, not to exceed five (5)
single-spaced pages.
c. Within three (3) days thereafter, the moving party may file a reply letter,
not to exceed two (2) single-spaced pages, and, by this same date, the parties may file a letter
requesting a teleconference to address the motion to strike.
9. Motions to Stay.
a. Any motion to stay shall NOT be accompanied by an opening brief but
shall, instead, be accompanied by a letter, not to exceed three (3) single-spaced pages, describing
the basis for the requested relief.
b. Within seven (7) days after the filing of a motion in compliance with this
Order, any party opposing such a motion shall file a responsive letter, not to exceed five (5)
single-spaced pages.
c. Within three (3) days thereafter, the moving party may file a reply letter,
not to exceed two (2) single-spaced pages, and, by this same date, the parties may file a letter
requesting a teleconference to address the motion to stay.
9
10. Interim Status Report. On _______, 202_, counsel shall file a joint letter with
the Court with an interim report on the nature of the matters in issue and the progress of
discovery to date. Thereafter, if the Court deems it necessary, it will schedule a status
conference.
11. Case Dispositive Motions.
a. 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_ [a date
approximately four months prior to the pretrial conference]. Briefing will be presented pursuant
to the Court’s Local Rules.
b. No early motions without leave. No case dispositive motion under Rule
56 may be filed more than ten (10) days before the above date without leave of the Court. A
party seeking leave to file a case dispositive motion prior to ten (10) days before the deadline set
forth above shall do so by filing a motion and an accompanying letter brief with the Court of no
more than four (4) single-spaced 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 than four (4) single-spaced pages, within seven (7) days from
the date the requesting party filed its brief. No reply briefs shall be filed.
c. Concise Statement of Facts Requirement. Any motion for summary
judgment shall be accompanied by a separate concise statement, not to exceed six pages, which
details each material fact that the moving party contends is essential for the Court’s resolution of
the summary judgment motion (not the entire case) and as to which the moving party contends
10
there is no genuine issue to be tried. Each fact shall be set forth in a separate numbered
paragraph and shall be supported by specific citation(s) to the record.
Any party opposing the motion shall include with its opposing papers a response
to the moving party’s concise statement, not to exceed six pages, which admits or disputes the
facts set forth in the moving party’s concise statement on a paragraph-by-paragraph basis. To
the extent a fact is disputed, the basis of the dispute shall be supported by specific citation(s) to
the record. Failure to respond to a fact presented in the moving party’s concise statement of facts
shall indicate that fact is not in dispute for purposes of summary judgment. The party opposing
the motion may also include with its opposing papers a separate concise statement, not to exceed
four pages, which sets forth material facts as to which the opposing party contends there is a
genuine issue to be tried. Each fact asserted by the opposing party shall also be set forth in a
separate numbered paragraph and shall be supported by specific citation(s) to the record.
d. The moving party shall include with its reply papers a response to the
opposing party’s concise statement of facts, not to exceed four pages, on a paragraph-by-
paragraph basis.
12. Applications by Motion. Except as otherwise specified herein, any application
to the Court shall be by written motion filed with the Court. Any non-dispositive motion should
contain the statement required by Local Rule 7.1.1.
13. Pretrial Conference. On ________, 202_, the Court will hold a pretrial
conference in court with counsel beginning at _____ _.m. [The parties should request a date
approximately two to four weeks prior to their requested trial date.] Unless otherwise ordered by
the Court, the parties should assume that filing the pretrial order satisfies the pretrial disclosure
11
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 Non-Patent
Pretrial Order, which can be found in the “Forms” tab on Judge Burke’s section of the Court’s
website, on or before ________, 202_. [The parties should insert a date no less than seven (7)
days before the requested pretrial conference date.] 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.
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. Each SIDE 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) single-spaced pages of argument and may be opposed by a
maximum of three (3) single-spaced pages of argument, and the party making the in limine
request may add a maximum of one (1) additional single-spaced page in reply in support of its
request. 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 single-spaced submission (and, if the
moving party, a single one (1)-page single-spaced reply), 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 47.1 and 51.1 the parties should file (i) proposed voir
dire, (ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict forms
12
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 Word format,
which may be submitted by e-mail to the trial judge’s staff.
16. Trial. This matter is scheduled for a __ day ____ [jury/bench] trial beginning at
9:30 a.m. on _________, 202_, with the subsequent 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.
____________________________________
Christopher J. Burke
UNITED STATES MAGISTRATE JUDGE
13
[Counsel Shall Provide a Chart of All Relevant Deadlines]
EVENT DEADLINE
14
