IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
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Plaintiff(s), )
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v. ) No.
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Defendant(s). )
CIVIL SCHEDULING AND TRIAL ORDER
Pursuant to Rules 16(b) and 26(f) of the Federal Rules of Civil Procedure, and upon
consideration of the parties’ views in the matter, the schedule below is hereby established.
Key Dates
1. Motions to join additional parties shall be filed on or before .
2. Motions to amend the pleadings shall be filed on or before .
3. Discovery motions shall be filed on or before .
4. Discovery shall be completed on or before .
5. Plaintiff’s 1 expert designations shall be filed on or before .
6. Defendant’s 2 expert designations shall be filed on or before .
7. Dispositive motions shall be filed on or before .
8. Motions to strike expert designations shall be filed on or before .
9. Motions in limine shall be filed twenty-one (21) days prior to the pretrial
conference.
10. Plaintiff’s deposition designations shall be filed twenty-one (21) days prior to the
pretrial conference. Defendant’s deposition designations shall be filed fourteen
(14) days prior to the pretrial conference.
11. Defendant’s objections to Plaintiff’s proposed deposition testimony shall be filed
fourteen (14) days prior to the pretrial conference.
12. Plaintiff’s objections to Defendant’s proposed deposition testimony shall be due
seven (7) days prior to the pretrial conference.
13. Statement of uncontroverted facts; stipulation as to the admissibility of evidence;
witness lists; exhibit lists; list of remaining claims; and, jury statement shall be filed
seven (7) days prior to the pretrial conference.
14. The pretrial conference is scheduled to be held at on .
15. Jury instructions shall be filed twenty-one (21) days prior to trial.
16. Voir dire questions shall be filed fourteen (14) days prior to trial.
1
Plaintiff, as used in this Order, includes all parties asserting a claim for relief or asserting an affirmative claim.
2
Defendant, as used in this Order, includes all parties defending against an affirmative claim.
17. Trial briefs shall be filed seven (7) days prior to trial.
18. A list identifying all individuals who will be sitting at counsel table shall be filed
four (4) days prior to trial.
19. The trial is scheduled to commence at 8:00 a.m. on for days.
Amendment of Pleadings
1. Any motion to join additional parties shall be filed on or before .
2. Any motion to amend the pleadings shall be filed on or before .
Discovery
1. Motions. All discovery motions shall be filed two weeks prior to the final discovery
deadline, on or before . The Court will not entertain any
discovery motion absent full compliance with Local Rule 37.1. Any discovery motion filed
without complying with Local Rule 37.1 will be denied. Except in extraordinary
circumstances, problems with discovery which are not brought to the Court’s attention in
time for the opponent to make a proper response and the Court to make an informed ruling
before the close of discovery will be waived.
2. Final Discovery Deadline. All pretrial discovery authorized by the Federal Rules
of Civil Procedure shall be completed (not simply submitted) on or before .
Accordingly, all discovery requests and depositions shall be submitted, responded to, and/or taken
prior to the date specified in this paragraph and all disputed issues shall be brought to the Court’s
attention and resolved prior to this time.
3. Expert Witnesses. Any witness who will give an expert opinion is an expert
witness. Plaintiff shall designate any expert witnesses it intends to call at trial on or before
, and Defendant shall designate any expert witnesses it intends to call at
trial on or before . This requirement applies to all witnesses—retained or
non-retained—from whom expert opinions will be elicited at trial. All expert witnesses must
submit an expert report as provided in paragraph 4, with a partial exception for treating physicians
as discussed in paragraph 5.
4. Affidavits for Experts. Along with each party’s designation of expert witnesses,
each party shall provide the other parties with an affidavit from each expert witness. The affidavit
shall include a complete statement of all opinions to be expressed and the basis and reasons
therefore, the data or other information considered by the witness in forming the opinions, any
exhibits to be used as a summary of or support for the opinions, the qualifications of the witness
(including a list of all publications authored by the witness within the preceding ten years), the
compensation to be paid for the study and testimony, and a listing of any other cases in which the
witness has testified as an expert at trial or by deposition within the preceding four years. Expert
witnesses may testify only as to matters contained in the affidavit described above unless leave of
Court is granted upon good cause shown.
5. Treating Physicians. With respect to treating physicians who will testify as to
treatment provided, the requirements of paragraph 4 of this section may be satisfied by providing
a copy of all the treating physician’s files, records and notes relating to the treating physician’s
patient to the opposing party. For the purpose of this paragraph, a “treating physician” is a doctor
(including psychiatrist, dentist, or other practitioner of the healing arts) retained by a party prior to
retaining counsel in this matter. A treating physician will not be allowed to give expert testimony
beyond the treatment provided by said physician unless designated as an expert as required under
paragraph 3 of this section. A treating physician who will provide expert testimony beyond the
treatment provided by him or her must further comply with the requirements of paragraph 4 of this
section.
6. Disclosure of Privileged or Protected Material. The production of privileged or
work-product protected documents, electronically stored information (“ESI”) or information,
whether inadvertent or otherwise, is not a waiver of the privilege or protection from discovery in
this case or in any other federal or state proceeding. This Order shall be interpreted to provide
the maximum protection allowed by Federal Rule of Evidence 502(d). The provisions of Federal
Rule of Evidence 502(b) do not apply.
Nothing contained herein is intended to or shall serve to limit a party’s right to conduct a
review of documents, ESI or information (including metadata) for relevance, responsiveness
and/or segregation of privileged and/or protected information before production.
Motions
1. Dispositive Motions. All dispositive motions, except those under Rule 12(h)(2)
or (3), shall be filed on or before . All dispositive motions shall
have a separate section wherein each statement of fact is individually numbered so that any party
opposing such motion may refer specifically to a genuine dispute of material fact. Suggestions in
opposition to a dispositive motion shall begin with a concise listing of material facts as to which
the party contends a genuine dispute exists. All motions for summary judgment shall comply
with Local Rules 7.0 and 56.1.
2. Daubert Motions. All motions to strike expert designations or preclude expert
testimony premised on Federal Rule of Evidence 702 or Daubert v. Merrill Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993) shall be filed on or before . The deadline
for filing motions in limine does not apply to these motions. Failure to file a Daubert motion
prior to this deadline will constitute a waiver of any arguments based on Daubert.
3. Choice of Law Motions. All motions for an order determining choice of law shall
be filed on or before the deadline to file dispositive motions. While such motions may be filed
any time before then, the Court cautions the parties that it may defer ruling on a choice of law
motion if the parties have not presented a factual record full enough to permit the Court to properly
undertake the appropriate analysis. Of course, some choice of law issues may not require a full
factual record and may be amenable to resolution relatively early in the litigation.
4. Motions for Extension of Time. All motions for extension of time pursuant to
Rules 6(b), 31, 33, 34, or 36 must state:
a. The date when the pleading, response or other action is/was first due;
b. The number of previous extensions and the date the last extension expires;
c. The cause for the requested extension, including a statement as to why the
action due has not been completed in the allotted time; and
d. Whether the requested extension is approved or opposed by opposing counsel
(agreement by counsel of a requested extension is not binding on the Court).
Pretrial Conference & Filings Due Prior to Pretrial Conference
1. Pretrial Conference. A final pretrial conference in this case will be held at
on , at the Christopher S. Bond United States Court House, Courtroom
3A, in Jefferson City, Missouri. Lead trial counsel shall participate in this conference. The
agenda for this conference will include:
a. Identification of facts not in dispute to which the parties will stipulate, in
order to save trial time;
b. Identification of legal and factual issues to be tried;
c. Disposition of pending motions;
d. Discussion of any legal questions which must be resolved prior to trial;
e. Discussion of any suggestions by counsel to simplify and expedite the
trial; and
f. Discussion of the status and likely success of settlement negotiations.
2. Pretrial Filings. To improve the quality of trial through more thorough preparation,
the attorneys must meet and confer at least three (3) days prior to the deadlines contained in
Paragraphs c, d, e and f below to identify what is truly in dispute and to facilitate the admission of
uncontroverted evidence.
a. Motions in limine. Twenty-one (21) days prior to the pretrial conference,
motions in limine shall be filed. Responses to motions in limine shall be filed
at least fourteen (14) days prior to the pretrial conference.
b. Deposition Designations. Twenty-one (21) days prior to the pretrial
conference, Plaintiff shall file and serve a designation, by page and line number,
of any deposition testimony to be offered in evidence as a part of Plaintiff’s
case. Plaintiff shall also file the deposition transcript so the Court may review
it.
Fourteen (14) days prior to the pretrial conference, Defendant shall file and
serve:
i. A motion listing any objections to proposed deposition testimony
designated by any other party;
ii. A designation, by page and line number, of any deposition
testimony to be offered as cross-examination to deposition
testimony designated by other parties; and
iii. A designation, by page and line number, of any deposition
testimony to be offered in evidence as part of that party’s case-in-
chief in connection with such defense.
Seven (7) days prior to the pretrial conference, each party shall serve, file, and
deliver to all other parties its motion objecting to any deposition testimony
designated pursuant to subparagraphs ii. and iii. above.
c. Stipulation of Uncontroverted Facts. Seven (7) days prior to the pretrial
conference, stipulation of uncontroverted facts shall be filed. If no stipulated
facts can be agreed upon, including facts related to the Court’s subject matter
jurisdiction, the parties shall file a joint statement to that effect.
Notwithstanding the fact that the time for discovery will have closed, a request
to stipulate, if preserved in the record, will constitute a request for admission
under Rule 36 and failure to stipulate may be subject to sanctions under Rule
37(c).
d. Stipulation as to the Admissibility of Evidence. Seven (7) days prior to the
pretrial conference, stipulation as to the admissibility of evidence shall be filed
when the identification and foundation of the exhibit is not contested.
Notwithstanding the fact that the time for discovery will have closed, a request
to stipulate, if preserved in the record, will constitute a request for admission
under Rule 36 and failure to stipulate may be subject to sanctions under Rule
37(c).
e. Witness Lists. Seven (7) days prior to the pretrial conference, witness lists
shall be filed. Each party shall file and serve a list of all witnesses who may
be called at trial. If a witness is not listed by a party, that witness will not be
permitted to testify absent leave of Court and then only for the purpose of
unanticipated rebuttal or impeachment. No supplemental or amended witness
lists will be allowed without leave of Court and for good cause. To aid in voir
dire, the parties shall list each witness’s hometown.
f. Exhibit Lists. Seven (7) days prior to the pretrial conference, exhibit lists
shall be filed. Each party will file and serve a list of all exhibits which may be
offered at trial. Additionally, each party shall make its exhibits available for
inspection by the other parties prior to the pretrial conference. The parties shall
also prepare and provide to the courtroom deputy an exhibit index, with said
index being prepared on a form provided by the clerk’s office. Each exhibit
will be designated as either “Plaintiff’s” or “Defendant’s.” (E.g. P1 for
Plaintiff’s Exhibit 1, D1 for Defendant’s Exhibit 1, J1 for Joint Exhibits). If
an exhibit consists of more than one (1) page or part, the number of pages or
parts shall be included in the description on the exhibit index. It is not
necessary to list exhibits to be used only for impeachment or rebuttal purposes.
Failure to list an exhibit or to disclose an exhibit to adverse counsel as required
by this order will result, except upon a showing of good cause, in the non-
admissibility of the exhibit into evidence at the trial. No supplemental or
amended list of exhibits will be allowed without leave of Court and for good
cause.
g. Remaining Claims. Seven (7) days prior to the pretrial conference, each party
shall file a schedule of claims, counterclaims and affirmative defenses that
remain outstanding, along with the elements of each claim, citing authority for
such elements.
h. Jury Statement. The parties are directed to prepare a joint statement very
briefly setting forth the background of the case and the claims being asserted.
This statement will be read to the jury panel prior to voir dire. The jury
statement shall be filed electronically at least seven (7) days prior to the pretrial
conference.
Trial and Filings Due Prior to Trial
1. Trial. This case is scheduled for jury trial commencing at 8:00 a.m. on
, at the Christopher S. Bond United States Court House, Courtroom 3A, in
Jefferson City, Missouri.
2. Trial Filings. The following documents shall be filed prior to trial:
a. Jury Instructions. Twenty-one (21) days prior to trial, the parties shall
jointly* file an annotated (with sources) set of proposed jury instructions.
Proposed annotated instructions shall reflect the authorities upon which the
instruction is based and should be taken from or drawn in the manner of Model
Civil Jury Instructions for the District of Courts of the Eighth Circuit and/or
Missouri Approved Instructions (MAI) where available and appropriate. Any
modification of a pattern instruction shall be disclosed. All instructions shall
be designated as “Instruction No. ___” without indicating which party proposed
the instruction.
*Separate instructions are appropriate only when the parties cannot agree
upon a specific instruction. In that instance, counsel shall state in writing
the reason for the objection with authority cited as well as an alternative
instruction. The deadline for submitting objections and alternative
proposed instructions is fourteen (14) days before the date of trial.
Parties shall also email an original (without sources) and an annotated (with
sources) set of instructions to the courtroom deputy. The instructions should
be typed in Microsoft Word format.
b. Voir Dire. Fourteen (14) days prior to trial, counsel for each party shall file a
list of proposed questions or topics for voir dire examination to be propounded
by the Court.
c. Trial Brief. Seven (7) days prior to trial, counsel for each party shall file a
trial brief. The purpose of this brief is to assist the Court and expedite the
Court’s rulings during trial. The trial brief should provide a summary of the
evidence to be offered by witness and exhibit. This summary should not be
long, no more than two or three pages. It should also not recite the pleadings
or the elements of the claims.
d. List of Individuals at Each Party’s Table. To aid in voir dire, four (4) days
prior to trial, counsel for each party shall file a list identifying all individuals
who will be sitting at their table anytime during the trial. Because the court
will ask the jury panel if they recognize anyone in the courtroom, each person
must be present, at least briefly, during voir dire. Any person not introduced
to the jury during voir dire may not appear before the rail at any time during the
trial.
3. Trial Procedure. The Court will place time limits on opening statements and
direct and cross-examination of all witnesses. Counsel should be prepared to support their
representations as to the length of trial.
4. Trial Rules. In order to ensure the efficient use of time during trial:
a. All legal issues must be raised in advance of trial by written motions and
in accordance with this scheduling order;
b. Motions will not be heard during trial without a strong showing that counsel
could not, by due diligence, have raised them sooner;
c. Testimony will not be interrupted to deal with evidentiary matters that could
have been heard in advance of trial. The Court will consider those matters
during recess, at noon break, or at the end of the day. Counsel should be
prepared with a pinpoint citation to relevant written legal authority for their
positions;
d. Witnesses who will be testifying from exhibits or about exhibits should review
them immediately prior to testifying; and
e. Counsel shall show opposing counsel any exhibits they intend to use prior to a
witness testifying.
Settlement Deadline
The parties are directed to participate in timely settlement negotiations, and within ten (10)
days following the discussions, notify the courtroom deputy by email that settlement negotiations
have occurred. If a mediator is requested, the parties are to notify the Court as soon as possible.
Unless otherwise ordered, the Court hereby imposes a settlement deadline of 12:00 noon,
on the Friday before trial. If the case is settled after that date, the Court may enter an order to
show cause why certain costs should not be imposed on the party or parties causing the delay in
settlement.
Failure to Appear/Comply
Failure of counsel to appear at any scheduled final pretrial conference, or otherwise to
comply with the provisions of this order, may result in dismissal or default, as may be appropriate.
IT IS SO ORDERED.
Dated at Jefferson City, Missouri.
Willie J. Epps, Jr.
Chief United States Magistrate Judge
