THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. Case Number
[STYLE OF THE CASE]
PRETRIAL ORDER
AND CASE MANAGEMENT PLAN
FOR ASBESTOS-RELATED CASES
IN ACCORDANCE WITH the Local Rules of the Western District of
North Carolina and pursuant to Rule 16 of the Federal Rules of Civil
Procedure, the undersigned enters the following Pretrial Order and Case
Management Plan in this matter.
DEADLINES AT A GLANCE
Rule 26 Disclosures 14 days after Entry of CMO
Designation of Mediator 21 days after Entry of CMO
Expert Reports - Plaintiff 7 months before Trial
Defendant 6 months before Trial
Discovery 5 months before Trial
Mediation 4½ months before Trial
Motions Deadline 4 months before Trial
Trial 1st Trial Term on or after 13
months after Joinder of Issue
I.
A. TRACK ASSIGNMENT: This case is assigned to the
STANDARD Case Management Track.
II.
A. DISCOVERY GUIDELINES: Each party may propound no
more than twenty (20) single part interrogatories; each
party may submit no more than twenty-five (25) requests
for admissions to any other party; each party may depose
no more than six (6) fact witnesses without prior approval
of the Court. Parties may, however, by agreement,
increase the numbers set forth in this paragraph, and if
unable to agree, may then seek Court intervention by
motion.
B. RULE 26 DISCLOSURES: The information required by
Federal Rule of Civil Procedure 26(a)(1) shall be
exchanged no later than Click here to enter a date. The
parties may waive and/or modify these disclosure
requirements by written agreement.
C. RESPONSES TO INTERROGATORIES AND
REQUESTS FOR ADMISSION: Every response to an
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interrogatory or request for admission, and every objection
thereto, shall be preceded by the original number and
complete text of the corresponding interrogatory or request
for admission.
D. THE MAINTENANCE OF DISCOVERY MATERIALS:
Discovery materials are NOT to be filed. All counsel are
advised to consult the Local Rule which provides that while
depositions, interrogatories, and requests for admission,
and responses thereto, must still be served on all parties,
they are no longer to be filed unless upon order of the
Court. The parties are responsible for the preservation of
any and all discovery materials they may generate.
E. USE OF DEPOSITIONS AT TRIAL: If depositions are
taken during the discovery period which counsel intend to
use at trial, counsel are directed to exchange page/line
designations and to resolve any objections thereto prior to
the final pretrial conference. In the event that video
depositions are taken, counsel are directed to edit the
video accordingly so that the video may be shown without
interruption. Any objections to designations of deposition
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testimony (whether such testimony is presented in written
form or through a video recording), which cannot be
resolved by the parties themselves must be raised in time
to be addressed at the final pretrial conference. Failure to
do so will result in objections being deemed to be waived.
F. PROTECTIVE ORDERS: Any objections made to
discovery requests shall be accompanied by a draft
proposed protective order if such order is, or will be,
requested. When counsel submit proposed protective
orders, they shall include a provision leaving the ultimate
disposition of protected materials subject to a final order of
the Court on the completion of litigation.
G. DISCOVERY COMPLETION: All discovery, with the
exception of such depositions as noted below, shall be
completed no later than Click here to enter a date. Counsel
are directed to initiate discovery requests and notice or
subpoena depositions sufficiently in advance of the
discovery completion deadline so as to comply with this
Order. The parties may agree to take de bene esse
depositions, expert depositions, damages witnesses
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depositions, and Rule 30(b)(6) depositions after the
discovery deadline. Discovery requests that seek
responses or schedule depositions after the discovery
completion deadline are not enforceable, , however, except
by order of the Court for good cause shown. Further, any
agreed upon extension shall not be cause to modify any
other deadline in the case, in particular the dispositive
motions deadline or the Trial Date. A party who has served
upon another party interrogatories, document requests, or
requests for admission may agree in writing with that other
party (including e-mail confirmation) to extend the deadline
for the service of answers and responses to the
interrogatories, document requests, or requests for
admission, and with such an agreement, there will be no
need to obtain the Court’s approval of such an extension
of time. If a party requests the Court for an extension of
time to respond to discovery requests or to extend the
discovery deadline, the result of consultation with opposing
counsel must be stated in the motion.
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H. Depositions taken for the sole purpose of preserving
testimony for trial are not considered discovery for the
purposes of this section provided that 1) the witness will be
unavailable for trial for one of the reasons set forth in Rule
32(a)(3) and 2) the reason for such unavailability is that the
witness resides outside the subpoena power of this Court
and the party seeking to take such deposition has failed,
after making a good faith effort, to obtain a commitment
from the witness to testify at trial voluntarily, and 3) such
deposition can be concluded in time so that the portions of
the deposition to be used at trial can be designated and
objections thereto resolved at the final pretrial conference,
but in any event no later than fourteen (14) days prior to
the Trial Date. Such depositions should be presented at
trial by video recording whenever possible.
I. EXPERT WITNESSES: Each side shall be entitled to call
up to five (5) expert witnesses without further leave of the
Court. Reports for retained experts under Rule 26(a)(2)
will be due from the Plaintiff no later than Click here to
enter a date. and from Defendant no later than Click here
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to enter a date. Expert reports and other information
required to be disclosed under Rule 26(a)(2) are not to be
filed with the Court unless ordered or needed as set forth
in Local Rule LCvR 26.2. Supplementations under Rule
26(e) shall be ongoing throughout these proceedings.
Depositions of experts, retained or otherwise (such as
treating physicians), may, by agreement of the parties, be
conducted outside of the discovery period set forth in
section G above but must be concluded so that the portions
of the deposition to be used at trial can be designated and
objections thereto resolved at the final pretrial conference,
but in any event no later than fourteen (14) days prior to
the Trial Date. Further, any agreement to take expert
depositions after the close of the discovery period will not
be cause to extend any other deadlines.
J. DAMAGES WITNESSES: Depositions of witnesses who
may testify regarding damages, including the impact of
injuries, including but not limited to a spouse, children, and
other relatives, may, by agreement of the parties, be
conducted outside of the period for discovery set forth in
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section G above but must be concluded so that the portions
of the deposition(s) to be used at trial can be designated
and objections thereto resolved at the final pretrial
conference, but in any event no later than fourteen (14)
days prior to the Trial Date. Further, any agreement to take
damages witnesses depositions after the close of the
discovery period will not be cause to extend any other
deadlines.
K. RULE 30(b)(6) DEPOSITIONS: Rule 30(b)(6) depositions
may be conducted outside of the period for discovery set
forth in section G above if the Plaintiff and the Defendant
who is the subject of the Rule 30(b)(6) deposition so agree;
however, such depositions must be concluded so that the
portions of the deposition to be used at trial can be
designated and objections thereto resolved at the final
pretrial conference, but in any event no later than fourteen
(14) days prior to the Trial Date. Further, any agreement
to take Rule 30(b)(6) depositions after the close of the
discovery period will not be cause to extend any other
deadlines.
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III.
A. MOTIONS DEADLINE: All motions except motions in
limine and motions to continue shall be filed no later than
Click here to enter a date. This deadline shall also pertain
to all motions attacking the qualifications of an expert
witness (i.e., Daubert motions). Parties may not extend
this deadline by agreement and stipulated extensions of
the completion of discovery do not extend the Motions
Deadline.
B. MOTIONS HEARINGS: Hearings on motions ordinarily will
be conducted only when the Rules require a hearing, or
when the papers filed in support of and in opposition to the
motion do not provide an adequate basis for decision.
The Clerk will notify all parties of the date and time set for
the hearing.
C. MEMORANDA IN SUPPORT OF MOTIONS: Every motion
shall include, or be accompanied by, a brief written
statement of the facts, a statement of the law, including
citations of authority and the grounds on which the motion
is based. No brief may exceed 25 pages without Court
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approval. Briefs must be double spaced and in at least 14
point type. Motions not in compliance with this order are
subject to summary denial. No memorandum, however,
need accompany those motions exempted from this
provision under Local Rule 7.2 and simple consent
motions, motions to continue, and motions to withdraw as
counsel provided that such motions contain an adequate
statement of the basis for the relief sought.
D. RESPONSES TO MOTIONS: Responses to a motion, if
any, must be filed within fourteen (14) days of the date on
which the motion’s certificate of service is signed. The
Court generally deems a motion ripe for determination
upon the timely filing of the response but may, in its
discretion, rule on a motion before the response time
expires, if warranted by the circumstances. Where a
motion is not responded to within the time provided, the
Court may grant the relief requested, if good cause is
shown in such motion. The filing of a reply brief is allowed
only if the response raises new matters. The reply shall be
limited to a discussion of such newly raised matters. Such
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reply should be filed no later than seven (7) days after the
filing of the response, shall not exceed ten (10) pages in
length, and shall be double spaced and in at least 14 point
type.
E. EXTENSIONS OF TIME TO RESPOND: If counsel need
more than fourteen (14) days to file a response, they shall
file a motion for extension of time to respond prior to the
expiration of the response deadline. The moving party
must state within the motion what actions have been
undertaken to consult with opposing counsel regarding the
requested extension and must notify the Court of the views
of opposing counsel regarding the request. If the party fails
to make the requisite showing, the Court may summarily
deny the request. Such motions for extension will be
granted only upon a showing of cause and should be the
exception rather than the rule.
F. MOTIONS TO COMPEL: A motion to compel must include
a statement by the movant that the parties have conferred
in good faith in an attempt to resolve the dispute and are
unable to do so. Motions to compel must be filed within the
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discovery period or they may be deemed waived. After
reviewing the merits of a motion and the response thereto,
the Court may order the parties to confer again in a good
faith attempt to resolve the dispute or to narrow the issues.
Consistent with the spirit, purpose, and explicit directives
of the Federal Rules of Civil Procedure, the Court expects
all parties to attempt in good faith to resolve discovery
disputes without the necessity of Court intervention.
Failure to do so may result in appropriate sanctions.
IV. ALTERNATIVE DISPUTE RESOLUTION
A. Mediation IS ordered in this case.
B. Mediation shall be completed by Click here to enter a date.
C. Within twenty-one (21) days of the entry of this Order the
parties shall select and agree upon a mediator and shall
file with the Court a report stating the identity of the
mediator selected. If the parties are unable to agree upon
a mediator they shall, within twenty-one (21) days of the
entry of this Order, file with the Court a report stating that
they have been unable to agree upon a mediator and the
reasons for such inability.
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D. Within seven (7) days of the completion of the mediation
there shall be filed with the Court a Mediation Report which
states whether all, a portion or none of the case has settled.
The Mediation Report shall be filed with the Court
electronically in such a form as to be docketed by the Clerk.
It shall be the responsibility of the mediator to file the
Mediation Report with the Court, except that if the mediator
does not have an electronic case filing (ECF) account with
the Clerk, then it shall be the responsibility of the
Defendant(s) to file the Mediation Report for the mediator.
It is the responsibility of the Defendant(s) to determine
whether the mediator has an ECF account with the Clerk.
E. If any of the Plaintiff’s/Plaintiffs’ claims are settled, whether
at mediation or otherwise, the Plaintiff(s) and each settling
Defendant shall file a joint memorandum of settlement with
the Court setting out the basic terms of their settlement
agreement, including the amounts to be paid, if any, by the
settling Defendant. Such memorandum may be filed under
seal available only to the Court and the parties who are
signatories to the settlement. Each settling Defendant
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shall pay all sums required by the parties’ settlement
agreement and the parties shall file a stipulation of
dismissal or a motion to dismiss the settling Defendant with
the Court within sixty (60) days of reaching such
agreement, unless additional time is sought and granted by
the Court.
V. TRIAL PROCEDURES
A. TRIAL SUBPOENAS: Counsel must subpoena all
witnesses at least fourteen (14) days before the day on
which the Clerk of Court has set the case for trial (Trial
Date). The Court may elect not to enforce subpoenas that
have not been issued in compliance with this deadline or,
if requested, may quash subpoenas that have not been
issued in compliance with this deadline.
B. COUNSEL’S DUTIES PRIOR TO TRIAL: Either one week
before the Trial Date or by noon on the business day
immediately preceding the final pretrial conference,
whichever is earlier, counsel for all parties shall:
(1) Discuss the possibility of a settlement;
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(2) Exchange copies of exhibits or permit inspection if
copying is impractical;
(3) Number and become acquainted with all exhibits;
(4) Agree upon the issues to be submitted to the jury (if
a jury trial has been requested), reduce such issues
to writing in the form of a proposed verdict sheet, and
file such proposal with the Court. If counsel cannot
agree upon the wording of the proposed verdict
sheet, each party is directed to file his/her own
version with the Court; and
(5) Agree upon stipulations of fact and file them with the
Court. The parties are encouraged to stipulate to as
many facts as possible to facilitate the trial of the
case.
C. PROPOSED JURY INSTRUCTIONS: If a jury trial has
been requested, all counsel shall submit proposed jury
instructions no later than one (1) week before the Trial Date
or the business day immediately preceding the final pretrial
conference, whichever is earlier. Additional instructions
may be submitted during the trial as circumstances may
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require. Counsel should number each proposed
instruction and shall submit each proposed instruction on a
separate page. Each proposed instruction must contain a
supporting citation as a footnote. A proposed instruction
without a supporting citation will not be considered.
Boilerplate introductory instructions are not required to be
submitted.
D. COUNSEL’S PRE-TRIAL FILINGS: The parties are to file
the following with the Court:
(1) No later than fourteen (14) days prior to the final
pretrial conference, counsel for each party shall file
any motions in limine. Responses to any such
motions must be filed no later than seven (7) days
prior to the final pretrial conference. For the
purposes of this provision, Daubert motions are not
to be considered motions in limine, but are
addressed in another portion of this Order.
(2) No later than one (1) week before the Trial Date or
the business day immediately prior to the final pretrial
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conference, whichever is earlier, the parties shall file
with the Court:
(a) The issues and stipulations as called for in
Paragraph B(4) and (5) above;
(b) The line and page designations of any
depositions that counsel intend to introduce at
trial. The parties should be prepared to
address any objections to such designations at
the final Pretrial Conference;
(c) A trial brief addressing all questions of law and
any anticipated evidentiary issues. Such trial
brief shall not exceed 25 pages and shall be
double spaced and in at least 14 point type;
and
(d) Proposed jury instructions, as described
above, or in the event of a non-jury case,
proposed findings of fact and conclusions of
law.
(3) No later than noon on the business day immediately
preceding the Trial Date, counsel for each party shall
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file the following documents with the Clerk of Court
and provide a hard copy to the presiding judge or his
courtroom clerk:
(a) A witness list containing the name of every
proposed witness;
(b) A statement of the education, experience, and
qualifications of each expert witness, including
the particular field in which the party intends to
qualify the witness as an expert. The
statement should also indicate whether the
parties have stipulated to the qualifications of
each expert witness;
(c) Stipulations concerning the authenticity and
admissibility of as many proposed exhibits as
possible; and
(d) An exhibit list. The exhibit list should not
include any exhibits for which there is a very
low likelihood that they will be introduced.
Further, the exhibit list should designate each
exhibit individually; the use of group exhibits
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(e.g., designating a series of photographs as
one exhibit) is discouraged. If necessary, the
parties may supplement their exhibit lists at trial
with additional exhibits upon a showing of just
cause and a lack of surprise or unfair prejudice
to the opponent.
E. EXHIBIT NOTEBOOKS: If counsel for any party intends to
tender more than fifteen (15) documentary exhibits,
counsel for that party shall prepare two (2) identical exhibit
notebooks, or sets of exhibit notebooks, containing only
those exhibits listed on the party’s exhibit list. Exhibits
which have a very low likelihood of being introduced and
which have not been included on the party’s exhibit list
should not be included in the exhibit notebooks. The
exhibit notebooks shall contain an index of the exhibits and
a copy of each exhibit. Counsel shall tab each exhibit
separately (i.e., no group exhibits) and shall numerically
arrange each exhibit notebook, or set of exhibit notebooks.
The exhibit notebooks are necessary so that the witness
and the Court can each have a set of exhibit notebooks in
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the event that technical difficulties prevent the parties from
presenting their exhibits electronically. The parties may
seek leave of Court to waive the requirement of exhibit
notebooks where hard copies of the proposed exhibits
would be voluminous or otherwise unwieldy.
F. FORMAT FOR EXHIBIT LIST: In preparing the exhibit list,
counsel separately shall identify and number each exhibit,
shall arrange the list numerically by exhibit number, and
shall place the following headings on the exhibit list:
Exhibit #
Description
Stipulation of Authenticity
Stipulation of Admissibility
Objection
Identified by
Admitted
It is not necessary for counsel to make entries in either the
“Identified by” column or the “Admitted” column. Counsel
should only enter “Yes” or “No” for each exhibit in the
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columns regarding the stipulations of authenticity and
admissibility.
G. JURY VOIR DIRE: Following initial voir dire by the Court,
counsel will be given a limited opportunity to conduct
additional voir dire, subject to the Court’s supervision for
reasonableness and relevance.
H. SANCTIONS FOR COUNSEL’S FAILURE TO MEET
DEADLINE FOR FILING: If any party fails to comply timely
with any of the requirements set forth in this Order, the
Court may impose sanctions, including but not limited to, a
$50.00 per day fine assessed against counsel.
I. ASSESSMENT OF JURY COST: Whenever a civil action
scheduled for a jury trial is settled or otherwise disposed of
in advance of the actual trial, the Court may assess all
jurors’ costs, including Marshal’s fees, mileage
reimbursement, and per diem fees, equally against the
parties or otherwise may determine appropriate
assessments unless the Clerk’s Office is notified by 4:00
p.m. of the business day immediately preceding the Trial
Date or the parties otherwise establish good cause why the
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Court should not assess jury costs against the parties. The
Court may set an earlier deadline by further Order. When
any civil jury trial is settled at trial in advance of the verdict,
the Court likewise may make the same assessments
unless the parties establish good cause why the Court
should not do so.
VI.
A. TRIAL DATE: Trial is scheduled to commence
WITH/WITHOUT a jury during the first civil trial term
beginning on or after Click here to enter a date. The Court
will endeavor to set the date of the term of court in which
this case will tried at least eight months in advance. The
term “Trial Date” has been used throughout this Order to
refer to the first day of the term in which this case is
ultimately set for trial, that also being the date on which jury
selection is scheduled to begin for this case.
B. LENGTH OF TRIAL: Trial is anticipated to last _____ days.
C. A district judge or magistrate may convene a settlement
conference at any time.
VII.
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To the extent that any provision of the Local Rules conflict with
this Order, this Order shall govern. This Order is subject to
modification only by Order of this Court and may not be modified
by agreements among the parties.
IT IS SO ORDERED.
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