IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
NAME, )
)
Plaintiff, )
)
v. ) No. XXXXXX-DGK
)
NAME, )
)
Defendant. )
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. Please
note the Court has not adopted the parties’ recommendations with respect to several deadlines.
The parties may not make any changes to this order, including amending the key dates,
without the Court’s express written approval.
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. Any choice of law motion or motion to raise an issue of foreign law shall be filed
on or before (approximately halfway through discovery).
4. Joint discovery status report shall be filed on _____ (approximately 120 days after
the Court enters the scheduling order).
5. Plaintiff’s expert designations shall be filed on or before (60-90
days before discovery due), and any such expert shall be made available for
deposition by DATE + 30 days.
6. Defendant’s expert designations shall be filed on or before (30-60
days before discovery due), and any such expert shall be made available for
deposition by DATE + 30 days.
7. Any motion pertaining to collateral estoppel, including any motion to establish facts
by collateral estoppel, shall be filed on or before (60 days before
discovery due).
8. Discovery motions shall be filed on or before (4 weeks before
close of discovery).
9. Discovery shall be completed on or before .
Template Scheduling Order for Jury Trial as of 3-1-2024
10. Motions to strike expert designations shall be filed on or before .
11. Dispositive motions shall be filed on or before (30 days after
discovery completed).
12. Motions in limine shall be filed twenty-eight (28) days prior to the pretrial
conference.
13. Deposition designations; stipulation of uncontroverted facts; stipulation as to the
admissibility of evidence; witness lists; exhibit lists; and list of remaining claims
shall be filed fourteen (14) days prior to the pretrial conference.
14. Objections to deposition designations and deposition designations by party
defending against an affirmative claim shall be filed seven (7) days prior to the
pretrial conference.
15. The pretrial conference is scheduled to be held at .m. on .
16. Jury instructions and voir dire questions shall be filed fourteen (14) days prior to trial.
17. Trial briefs shall be filed fourteen (14) days prior to trial.
18. 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 four weeks prior to the final
discovery deadline, on or before . 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. Discovery Dispute Procedure. 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.
a. Scheduling a telephone conference. A party seeking a telephone conference
with the Court to resolve a discovery dispute shall email the Courtroom Deputy,
Ms. Tracy Strodtman, at
[email protected]. Opposing
counsel shall be copied on this email. The email should provide a short
explanation of the dispute and certify compliance with Rule 37.1. The Court
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may then schedule a telephone conference to discuss the discovery dispute with
the parties.
b. Position memorandum. At least three days (72 hours) before the
telephone conference, counsel for each party shall file a position memorandum.
The body of this memo shall not exceed 500 words, unless the Court prescribes
a longer limit. This memo shall describe the underlying facts of the dispute,
the party’s arguments relative to the dispute (including pinpoint citation to
relevant Eighth Circuit caselaw), and a discussion of the opposing party’s
anticipated arguments. The parties should attach as an exhibit the
interrogatory, request for production, or other discovery request that is in
dispute. At least two days (48 hours) before the telephone conference, counsel
for each party may file a reply memo not to exceed 300 words. The parties
should include their best arguments in their initial memorandum.
c. Canceling the telephone conference. After reviewing the memoranda,
the Court may cancel the telephone conference and rule on the existing record
without hearing argument from the parties.
3. Discovery Status Report. To ensure discovery is occurring, the parties shall file
a joint status report on ______. The parties shall include the following in the status report: (1) the
status of all written discovery, including what type of discovery was served and responded to,
when it was served and responded to, what written discovery remains to be served, and
approximately when it will be served; (2) the status of all document productions, including when
the documents were produced, how many were produced, and when any remaining documents will
be produced; (3) the status of depositions, including what depositions have been taken or noticed
and how many depositions remain to be taken or noticed; (4) an affirmation that all required
certificates of service have been—and will continue to be—filed with the Court; and (5) the status
of any settlement negotiations.
The Court expects the parties will have made significant progress in discovery by the time
they file the status report. At a minimum, the parties should have completed initial disclosures
(when applicable), exchanged and responded to at least a first round of written discovery (e.g.,
interrogatories, requests for production, requests for admission, etc.), produced the bulk of
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requested documents, taken some depositions, and noticed most of the remaining depositions.
The parties shall not use the status report to argue about discovery disputes. In addition to the
status report, the parties shall also file certificates of discovery to the extent they are required by
the Federal Rules of Civil Procedure and/or Local Rules.
Approximately one week after the status report is filed, the Court will hold a telephonic
status hearing on the case to discuss any issues it perceives from the status report. In some
instances, however, the Court may hold the status hearing in person. The parties shall not use the
status hearing to argue about discovery disputes. Failure to make substantial progress in the case
by the status report deadline may result in the Court unilaterally setting interim discovery deadlines
or even imposing sanctions.
4. 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.
5. Expert Witnesses. Any witness who will give an expert opinion is an expert
witness. Plaintiff’s expert designations shall be filed on or before , and any such
expert shall be made available for deposition by . Defendant’s expert
designations shall be filed on or before , and any such expert shall be made
available for deposition by . These deadlines apply 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 6, with a partial exception for treating physicians
as discussed in paragraph 7.
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6. 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
therefor, 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.
7. Treating Physicians. With respect to treating physicians who will testify as to
treatment provided, the requirements of paragraph 6 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 5 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 6 of this
section.
8. ESI. Disclosure or discovery of electronically stored information (“ESI”) shall be
handled as follows:
a. General. If ESI is a subject of discovery, it shall be requested with as much
specificity/particularity as possible to minimize the required expense.
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b. Form of production. Unless otherwise agreed, the parties may disclose or
produce ESI in hardcopy or static form (e.g., .pdf or .TIF), thereby allowing
documents produced to be indexed and individually marked through “bates”
stamping. Consistent with Fed. R. Civ. P. 34(b)(iii), the parties presumptively
need not produce the same ESI in more than one form. However, after the
production of ESI in a hardcopy or static form, the parties may request
disclosure of metadata or native files for particular documents when good cause
is demonstrated—e.g., when the original creation date of a document is at issue
and disputed, or a static image is not reasonably usable.
c. Preservation of ESI. The parties shall take reasonable steps to ensure ESI, and
other tangible evidence, is not destroyed, removed, mutilated, altered,
concealed, or deleted. However, any party may delete or recycle active files
electronically stored on servers or hard drives reasonably likely to include
documents after the party has made, and secured, a copy of the active files
including ESI within the scope of this order. A party need not electronically
preserve ESI stored on servers, hard drives, or similar devices not reasonably
likely to include ESI within the scope of this order. If the need arises at a later
time, the parties can discuss whether information on backup tapes is considered
“reasonably accessible” or “not reasonably accessible”; taking steps to preserve
backup tapes will not be construed as an acknowledgement that information on
them is “reasonably accessible” for purposes of Fed. R. Civ. P. 26. The fact that
a particular document or tangible object may be included in the scope of the
parties’ agreement is not intended to, and does not, establish or suggest it is
discoverable, relevant to, or admissible in this matter. By agreeing to preserve
ESI, the parties do not waive any objection to the discoverability of the ESI.
Nothing in this order shall be construed to affect the discoverability, and
admissibility, of any ESI.
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.
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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 by 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 or
raising an issue of foreign law shall be filed on or before . While such motions
may be filed any time before then, the Court cautions the parties that it may defer ruling on such a
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 such motions 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).
5. Motions Pertaining to Collateral Estoppel. Any motion pertaining to collateral
estoppel, for example, a motion to apply collateral estoppel or to establish facts by collateral
estoppel, shall be filed on or before .
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Pretrial Conference & Filings Due Prior to Pretrial Conference
1. Pretrial Conference. A final pretrial conference in this case will be held at .m.
on , 20 , via telephone conference. 1 To avoid any reception issues, all participants in the
telephone conference shall participate in the call from a landline, not a cell phone. The conference
call-in number will be emailed to counsel. 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-eight (28) days prior to the pretrial conference,
motions in limine shall be filed. Responses to motions in limine shall be filed
at least twenty-one (21) days prior to the pretrial conference.
b. Deposition Designations. Fourteen (14) days prior to the pretrial conference,
each party asserting claims for relief (plaintiff, third-party plaintiff,
counterclaiming defendant, etc.) or asserting an affirmative claim shall file and
serve a designation, by page and line number, of any deposition testimony to be
offered in evidence as a part of that party’s case. This party shall also file the
deposition transcript so the Court may review it.
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In some instances, the Court may require counsel to appear in person for the pretrial conference.
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Seven (7) days prior to the pretrial conference, each party defending against an
affirmative claim for relief 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.
On or before the date of 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. Fourteen (14) days prior to the pretrial
conference, a 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. Fourteen (14) 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. Fourteen (14) 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. Fourteen (14) days prior to the pretrial conference, exhibit lists
shall be filed on the exhibit index form provided by the clerk’s office. The
form can also be found on the Court’s website at
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www.mow.uscourts.gov/forms/district. 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.” Plaintiff shall number their exhibits beginning with the
number 1. Defendant shall number their exhibits beginning with the number
501. 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. Fourteen (14) 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.
Trial and Filings Due Prior to Trial
1. Trial. This case is scheduled for jury trial commencing at 8:00 a.m. on , 20 , at the
United States Courthouse, Courtroom 8D, in Kansas City, Missouri.
2. Trial Filings. The following documents shall be filed prior to trial:
a. Jury Instructions. Fourteen (14) 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. 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.
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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. Fourteen (14) 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
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e. Counsel shall show opposing counsel any exhibits they intend to use prior to a
witness testifying.
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.
Date:
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