⚠ Recovered from a scanned original by OCR — check the official PDF before quoting exact language.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL, TEXARKANA AND TYLER DIVISIONS
REGARDING CASES ASSIGNED TO
U.S. DISTRICT JUDGE RODNEY GILSTRAP AND
U.S. DISTRICT JUDGE ROBERT W. SCHROEDER III
STANDING ORDER REGARDING “MEET AND CONFER”
OBLIGATIONS RELATING TO DISCOVERY DISPUTES!
WHEREAS, consistency and uniformity in both the form and substance of the methods
and procedures used by counsel to meet and confer during discovery disputes is a meritorious
goal;
WHEREAS, reasonable planning and steps by counsel to efficiently and effectively meet
and confer as to discovery disputes in advance of the time for seeking direct intervention by the
Court to maximize the best use of the Court’s limited resources is an additional meritorious goal;
and
WHEREAS, such conduct, and this order for the implementation of the same, fall
squarely within the Court’s inherent power to manage its docket and oversee the fair presentation
of evidence at all stages of the litigation process;
NOW, THEREFORE, IT IS ORDERED THAT:
1. An opposed discovery related motion, or any response thereto, shall not exceed 7
pages. Attachments to a discovery related motion, or a response thereto, shall not exceed
5 pages. No further briefing is allowed absent a request or order from the Court.
2. Prior to filing any discovery related motion, the parties must fully comply with the
substantive and procedural conference requirements of Local Rule CV-7(h) and
(i). Within 72 hours of the Court setting any discovery motion for a hearing, each party’s
lead attorney (see Local Rule CV-11(a)) and local counsel shall meet and confer in
person or by telephone, without the involvement or participation of other attorneys, in an
effort to resolve the dispute without Court intervention.
3. Counsel shall promptly notify the Court of the results of that meeting by filing a joint
report of no more than 2 pages. Unless excused by the Court, each party’s lead attorney
shall attend any discovery motion hearing set by the Court (though the lead attorney is
not required to argue the motion).
4. Any change to a party’s lead attorney designation must be accomplished by motion and
order.
The terms of this Standing Order shall immediately apply to and amend all active civil cases
currently pending before the undersigned or that may otherwise be assigned to the undersigned
hereafter.
a
SIGNED AND EFFECTIVE THIS 3 DAY OF JUNE, 2016.
U.S. DISTRICT JUDGE RODNEY GILSTRAP
Rot WfhYwe dey,
U.S. DISTRICT JUDGE ROBERT W. SCHROEDER IT
‘Commentary
Background
In-person lead and local counsel conference requirements for discovery disputes have been
employed periodically in the Eastern District by judges in the Marshall, Texarkana, and Tyler
divisions for over a decade. The in-person requirements were premised on the goal of resolving
avoidable discovery disputes by insuring that the most experienced and objective members of the
litigation teams personally discussed potential solutions, and the relative significance of any
discovery related dispute, before taxing the resources of the court with motion practice. The in-
person requirements have been imposed in addition to the conference requirements contained in
the local rules.
Experience with the in-person conference requirement has shown that while it sometimes works
as intended, it has equally produced unintended consequences. First, in cases involving
geographically diverse counsel, the in-person requirements inject significant costs and delay
bringing necessary discovery disputes to the court. These costs and delays include attorney time
and travel expenses often borne by the client and significant time delays occasioned by the need
to coordinate the schedules of multiple attorneys to be present at a designated conference
location. Second, because of the costs and time involved to hold an in-person conference, some
parties improperly use the conference requirement as a shield to avoid confronting legitimate
discovery deficiencies raised by an opponent. Third, because the in-person requirement
mandates the physical presence of lead counsel, some parties improperly manipulate lead
attorney designations. These manipulations include failing to formally identify a lead attorney as
required by Local Rule CV-11(a), identifying an attorney who in reality is not the party’s lead
attorney as lead attorney, identifying multiple or “co-lead” attorneys in violation of Local Rule
CV-11(a)’s requirement that “a” lead attorney be identified, or changing the lead attorney
designation solely for in-person conference scheduling purposes. Fourth, because the in-person
requirement also calls for the physical presence of local counsel, some parties discharge or delay
retaining local counsel in support of arguments that any in-person conference should occur at a
more favorable location. Additionally, local counsel are often forced into costiy and unnecessary
travel to accommodate distant conference locations. Finally, because of the difficulty scheduling
in-person conferences, some parties attempt to inject disputes never previously raised when an
in-person conference occurs, or deviate from traditional understandings of what is or is not a
discovery dispute to either avoid or trigger the in-person conference requirement.
Alternatives to the In-Person Conference Requirement for Discovery Disputes
Alternatives to the in-person conference requirement exist and have proven effective in practice.
These alternatives serve the same goal as the in-person conference requirement — resolving
avoidable discovery disputes — and do so without many of the unintended consequences
discussed above. These alternatives include: 1) requiring multiple conferences without a
requirement that the conferences occur in-person; 2) requiring a summary written submission of
discovery disputes to the court before and/or in lieu of full briefing (see Judge Illston’s Nov. 10,
2015 Standing Order, N.D. Cal.); 3) requiring telephonic discovery dispute hearings based on
succinct written reports after the conference process yields an impasse (see Judge Pender’s
Standing Order Section 5.4, International Trade Commission); or 4) requiring a second
conference and report from lead counsel within 72 hours of any discovery motion being set for
hearing (see Judge Love and Mitchell’s Patent Discovery Order Forms, E.D. Tex.).
The court believes the above order will avoid the unintended consequences that have developed
around the in-person requirement by replacing that requirement with a process that experience
suggests may be more effective at resolving avoidable discovery disputes and reducing their
burden on the court when necessary. First, the order still requires a personal conference between
lead and local counsel before the filing of any discovery related motion, drawing on the
enhanced discovery dispute conference requirements currently contained in Local Rules CV-7(h)
and (i). If unresolved by the conference process, the order implements summary written
submission of the discovery dispute to the court by limiting any motion or response to no more
than 7 pages of briefing and 5 pages of attachments (all of which must comply with the spacing
and type requirements of the Local Rules). Based on the summary motion and response, the
court may resolve the dispute, request additional or more fulsome briefing, set a telephonic
hearing, or set an in-person hearing. Should the court choose to set the motion for hearing,
within 72 hours each party’s lead attorney and local counsel must confer again, without the
involvement or participation of other attorneys, in an effort to resolve the dispute without court
intervention and then file a joint report. This second conference is limited to only lead and local
counsel to encourage a frank exchange by those hopefully best equipped to judge the both the
merits and practical necessity of the dispute. This limitation on participants avoids the sort of
one-upmanship sometimes exhibited by junior attorneys seeking to impress their superiors at the
expense of efficient dispute resolution. ‘This process also ensures that the court may reliably
assign ultimate responsibility to the lead attorney for the outcome of the conference efforts.
Finally, the lead attorneys must then attend the hearing, should it oceur.
The order addresses the manipulations of lead attorney designations by expressly incorporating
Local Rule CV-11(a)’s requirement that “a”, singular, lead attorney must be designated upon a
party’s first appearance, and then adding the additional requirement that changes to the lead
attorney designation must be accomplished by motion and order. This process should make
questionable lead attorney designations apparent to the court, without burdening the ability to
make legitimate changes to the designation when necessary.
