§
[PLAINTIFF] § CASE NO. 1:15-CV-761
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v. § JUDGE RON CLARK
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[DEFENDANT] § [INITIALS]
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ORDER GOVERNING PROCEEDINGS
This Order shall govern proceedings in this case. The following deadlines are hereby set:
1. Rule 26(f) attorney conference on or before [insert date: 18 days after date of this
Order.]
2. Complete initial mandatory disclosures required by this Order: 10 days after
deadline for Rule 26(f) conference.
3. File joint report of attorney conference: 14 days after deadline for Rule 26(f)
conference. This should follow initial mandatory disclosures, so a realistic
proposal regarding depositions and other discovery can be included.
4. The case is SET for a Rule 16 management conference on [insert date: 50 days
after date of this Order], in Courtroom #2, Jack Brooks Federal Building, 300
Willow Street, Beaumont, Texas. Lead counsel for each party, with authority to
bind their respective clients, and all unrepresented parties, shall be present.
Continuance of the management conference will not be allowed absent a showing
of good cause.1
1
Before the case management conference, counsel and unrepresented parties should review
the most recent versions of the Federal Rules of Civil Procedure and the Local Rules for the Eastern
District of Texas. The Local Rules are available on the Eastern District of Texas website
(www.txed.uscourts.gov).
RULE 26(f) ATTORNEY CONFERENCE
Rule 26(f) requires attorneys of record and all unrepresented parties to confer and attempt
in good faith to agree on a proposed scheduling order (see Appendix 1) and to electronically file a
joint report outlining their proposals. The conference may be by telephone.
Before commencing the Rule 26(f) conference, counsel must discuss settlement options
with their clients, including whether an offer or demand should be made at the Rule 26(f) attorney
conference. Counsel should also inquire whether their clients are amenable to trial before a United
States magistrate judge. Parties willing to consent should file the appropriate form electronically
(see form on Eastern District of Texas website) as soon as possible, so that the case can be reset
for management conference before the magistrate judge to whom the case is assigned.
The parties must include the following matters in the joint conference report:
1. A brief factual and legal synopsis of the case.
2. The jurisdictional basis for this suit.
3. Confirm that initial mandatory disclosures required by Rule 26(a)(1) and this Order
have been completed.
4. Proposed scheduling order deadlines. Appendix 1 has the standard deadlines.
Explain any deviations from standard schedule. Now is the time to inform the
court of any special complexities or need for more time before the trial setting.
The standard schedule is planned so that there is time to rule on dispositive motions
before parties begin final trial preparation.
5. If the parties agree that mediation is appropriate, and the parties can agree upon a
mediator, the name, address, and phone number of that mediator, and a proposed
deadline should be stated. An early date is encouraged to reduce expenses. The
court may appoint a mediator upon request.
6. The identity of persons expected to be deposed.
7. Any issues relating to disclosure or discovery of electronically stored
information, including the form or forms in which it should be produced.
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8. Any agreements or disputes relating to asserting claims of privilege or preserving
discoverable information, including electronically stored information and any
agreements reached under Federal Rule of Evidence 502.
9. Whether any other orders should be entered by the court pursuant to Federal Rule
of Civil Procedure 26(c) or 16(b), (c).
10. The names of the attorneys who will appear on behalf of the parties at the
management conference (the appearing attorney must be an attorney of record and
have full authority to bind the client).
11. Any other matters that counsel deem appropriate for inclusion in the joint
conference report.
CONTESTED MOTION PRACTICE
Counsel and parties shall comply with Local Rules CV-7, 10, 11, and 56, in addition to the
Federal Rules of Civil Procedure. Local Rule CV-7 requires you to attach affidavits and other
supporting documents to the motion or response. Labeled tabs on the attachments to the courtesy
copy will make it easier to find them.
If the motion with attachments exceeds twenty pages, the court requests that you bind the
courtesy copy at the left to make it easier to read. This binding must be either spiral bound or
three-hole punched and placed in a three-ring binder. You should print the docketed version of
your motion from CM-ECF so that your motion includes the docket identifier at the top of each
page.
Pursuant to Local Rule CV-7(b), highlight in the courtesy copy the portions of the affidavits
or other supporting documents that are cited in your motion or response.
SAFEGUARDING PERSONAL INFORMATION
The Judicial Conference of the United States has implemented policies to protect sensitive
private information about parties, witnesses, and others involved in a civil, criminal, or bankruptcy
case. To that end, all documents filed with the court and made available to the public, whether
electronically or on paper, should limit certain information as follows:
(Court Form 1/27/2017) Page 3
• for Social Security numbers, use only the last four digits;
• for financial account numbers, use only the last four digits;
• for names of minor children, use only their initials;
• for dates of birth, use only the year; and
• (in criminal cases) for home addresses, use only the city and state.
If such information is elicited during testimony or other court proceedings, it will become
available to the public when the official transcript is filed at the courthouse unless and until it is
redacted. The better practice is for you to avoid introducing this information into the record in the
first place. Please take this into account when questioning witnesses or making other statements in
court.
DISCOVERY
Initial mandatory disclosures pursuant to Rule 26(a)(1) shall be completed not later than ten
days after the deadline for the Rule 26 attorney conference and shall include the following:
1. The correct names of the parties to the action.
2. The name and, if known, the address and telephone number of any potential parties
to the action.
3. The name and, if known, the address and telephone number of persons having
knowledge of facts relevant to a claim or defense of any party, a brief
characterization of their connection to the case and a fair summary of the substance
of the information known by such person. This may be combined with the list of
persons required under Rule 26(a)(1)(A)(i) so that two lists are not needed.
4. The records or the authorizations described in Local Rule CV-34.
5. A copy of all other documents, electronically stored information, witness
statements, and tangible things in the possession, custody, or control of the
disclosing party that are relevant to a claim or defense of any party. This may be
combined with disclosures under Rule 26(a)(1)(A)(ii) so that duplication is
avoided. Parties are encouraged to agree upon provision of information by
electronic means.
(Court Form 1/27/2017) Page 4
See Local Rule CV-26(d) for meaning of “relevant to the claim or defense of any party.” A
party that fails to timely disclose such information will not, unless such failure is harmless,
be permitted to use such evidence at trial, at a hearing, or in support of a motion. A party is
not excused from making its disclosures because it has not fully completed its investigation of the
case.
Early Rule 34 requests may be delivered in compliance with Rule 26(d)(2). See Fed. R.
Civ. P. 26(d)(2). But, these requests are not considered served until the Rule 26(f) conference has
occurred. All other discovery shall not commence until the Rule 26(f) conference, (See Fed. R.
Civ. P. 26(d), 34) except that depositions may be taken by agreement, and initial mandatory
disclosure shall occur, before the Rule 16 management conference, so that counsel are in a position
to intelligently discuss additional required discovery, and scheduling of the case. Following the
management conference, the court will enter a scheduling order setting deadlines controlling
disposition of the case.
The fact that the scheduling order will have a deadline for completion of discovery is NOT
an invitation, or authorization, to withhold documents or information required to be disclosed as
part of initial mandatory disclosures, under the guise of “supplementation.” Attorneys are expected
to review their client’s files and to conduct at least preliminary interviews of their clients and
potential witnesses under their control, so as to fully comply with the initial mandatory disclosure
requirements by the deadline set in this Order.
These procedures should allow witnesses to be efficiently deposed, experts to be timely
identified and prepared to testify, and any follow-up paper discovery to be completed by the
deadline set for completion of discovery. The court expects that, in most cases, after reading the
pleadings and reviewing the opposing party’s initial disclosures an attorney should be alerted to
any remaining information that should have been disclosed. A frank discussion of the issues and
discovery during the Rule 26 attorney conference should inform counsel about the information
that will be provided by agreement and whether there are disputes that should be brought before
the court at the Rule 16 management conference. A party asserting that any information is
confidential should immediately apply to the court for entry of a protective order. Unless a request
is made for modification, the court will use its standard Protective Order, found on ED Texas
website at Judges / Chief Judge Ron Clark / Standard Forms.
DISCOVERY DISPUTES
A magistrate judge is available during business hours to immediately hear discovery
disputes and to enforce provisions of the rules. The hotline is the best means to obtain an
immediate ruling on whether a discovery request is relevant to any claims or defenses and on
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disputes that arise during depositions. The hotline number is (903) 590-1198. See Local Rule CV-
26(e).
Before filing a motion to compel, a motion to quash, or a motion for protection from
discovery, lead counsel must confer in good faith concerning the disputes. If agreement can not
be reached, counsel should call the hotline. If the magistrate judge on duty is not available within
a reasonable time, counsel should call this court and determine whether Judge Clark is available
for a phone conference.
Before calling the magistrate judge or this court on any dispute arising outside of a
deposition, any attorney would be well advised to list, in about a half a page, the key points counsel
wishes to make, any pertinent record references, and the applicable rule provision, statute, or case
that supports counsel’s position.
Electronic discovery: In cases involving disputes over extensive electronic discovery
counsel for both sides shall review the court’s [Model] Order Regarding E-Discovery in Patent
Cases before contacting the Hotline or filing motions to compel or to quash. The order can be
modified for use in any case in which electronic discovery is an issue, and any ruling of the court
on conduct of electronic discovery will likely be based, at least in part, on that model order. See
ED Texas Website under Quick Links / Forms / Patent Forms / Order Regarding E-Discovery in
Patent Cases.
FAILURE TO SERVE
Any defendant who has not been served with the summons and complaint within ninety
days after the filing of the complaint shall be dismissed, without further notice, unless prior to
such time the party on whose behalf such service is required shows good cause why service has
not been made. See FED. R. CIV. P. 4(m).
FICTITIOUS PARTIES
The name of every party shall be set out in the complaint. See FED. R. CIV. P. 10(a). The
use of fictitious names is disfavored by federal courts. Doe v. Blue Cross & Blue Shield, 112 F.3d
869 (7th Cir. 1997). It is hereby ORDERED that this action be DISMISSED as to all fictitious
parties. Dismissal is without prejudice to the right of any party to take advantage of the provisions
of Federal Rule of Civil Procedure 15(c).
SETTLEMENT
Plaintiff’s counsel shall immediately notify the court upon settlement.
(Court Form 1/27/2017) Page 6
COMPLIANCE
Attorneys and pro se litigants who appear in this court must comply with the deadlines set
forth in the Federal Rules of Civil Procedure, the Local Rules for the Eastern District of Texas and
this order. A party is not excused from the requirements of a Rule or scheduling order by
virtue of the fact that dispositive motions are pending, the party has not completed its
investigation, the party challenges the sufficiency of the opposing party’s disclosure, or
because another party has failed to comply with this Order or the rules.
Failure to comply with relevant provisions of the Local Rules, the Federal Rules of Civil
Procedure, or this order may result in the exclusion of evidence at trial, the imposition of sanctions
by the court, or both. Counsel are reminded of Local Rule AT-3, particularly AT-3(I) & (J).
(Court Form 1/27/2017) Page 7
APPENDIX 1
PROPOSED SCHEDULING ORDER DEADLINES
The following actions shall be completed by the date indicated.1 The dates indicated are
the standard for most cases. Counsel should be prepared to explain the need for requested changes.
____________________ Deadline for motions to transfer
(1 week after mgmt conf.)
____________________ Deadline to add parties
(6 weeks after mgmt conf.)
____________________ If parties plan to mediate, state date parties propose. This
should be as early as possible, to avoid expense.
____________________ Deadline to designate expert witnesses and reports on
(10 weeks after mgmt conf.) issues for which the party bears the burden of proof,
pursuant to Federal Rule of Civil Procedure 26(a)(2) and
Local Rule CV-26(b).
____________________ Deadline for Plaintiffs to file amended pleadings. A motion
(12 weeks after mgmt conf.) for leave to amend is not necessary.
7 weeks after disclosure Deadline to object to any other party’s expert witnesses.
of an expert is made Objections shall be made by a motion to strike or limit
expert testimony and shall be accompanied by a copy of the
expert’s report in order to provide the court with all the
information necessary to make a ruling on any objection.
The court will not accept objections to experts filed in any
form—i.e., motions in limine—after this date.2
Expert reports should include the categories of information
set out in Federal Rule of Civil Procedure 26(a)(2)(B)(i)-(vi)
1
If a deadline falls on a Saturday, Sunday, or a legal holiday as defined in Federal Rule of
Civil Procedure 6, the effective date is the first federal court business day following the deadline
imposed.
2
This requirement has two goals: (1) to encourage early disclosure of experts so that if one
is struck, the party will have time to find another; and (2) to avoid the gamesmanship that has
become common as parties attempt to disqualify experts with a motion in limine thus distracting
opponents during final trial preparations and perhaps even blocking testimony required to establish
a claim or defense.
(Court Form 1/27/2017) Page 8
and 26(a)(2)(C)(i)-(ii). Challenges to expert reports include
those set out in Federal Rule of Evidence 702(a)-(d) and
703.
____________________ Deadline for Defendant’s final amended pleadings. A
(14 weeks after mgmt conf.) motion for leave to amend is not necessary.
____________________ Deadline to designate expert witnesses and reports on
(16 weeks after mgmt conf.) issues for which the party does not bear the burden of
proof, pursuant to Federal Rule of Civil Procedure 26(a)(2)
and Local Rule CV-26(b)
____________________ Deadline for motions to dismiss, motions for summary
(18 weeks after mgmt conf.) judgment, or other dispositive motions.
____________________ All discovery shall be commenced in time to be completed
(28 weeks after mgmt conf.) by this date.
____________________ Notice of intent to offer certified records
(9 weeks before docket call)
____________________ Counsel and unrepresented parties are each responsible for
(8 weeks before docket call) contacting opposing counsel and unrepresented parties to
determine how they will prepare the Joint Final Pretrial
Order and Joint Proposed Jury Instructions and Verdict
Form (or Proposed Findings of Fact and Conclusions of
Law in non-jury cases).
To avoid the cost of designating deposition extracts and
objecting to same, counsel shall discuss witnesses who
have to be presented by deposition. Counsel should agree
on a list of witnesses whom each counsel will subpoena, or
if beyond the subpoena range (see Federal Rule of Civil
Procedure 45), whom each counsel will arrange to have
present at trial.
____________________ Motions in limine due.
(6 weeks before docket call) Deadline to file Joint Final Pretrial Order. (Obtain form for
Exhibit List from Eastern District’s website.)
_____________________ Response to motions in limine due.3
3
To save time and space, respond only to items objected to. All others will be considered
to be agreed. Opposing counsel shall confer in an attempt to resolve any dispute over the motions
in limine within five calendar days of the filing of any response. The parties shall notify the court
of all issues which are resolved.
(Court Form 1/27/2017) Page 9
(5 weeks before docket call)
File Proposed Jury Instructions/Verdict Form (or
Proposed Findings of Fact and Conclusions of Law).
____________________ For witnesses who are not going to be called live, oral and
(4 weeks before docket call) video deposition designations due. Each party who
proposes to offer a deposition by video shall serve on all
other parties a disclosure identifying the line and page
numbers to be offered. All other parties will have seven
calendar days to serve a response with any objections and
requesting line and page numbers to be offered. Counsel
must consult on any objections, and only those which
cannot be resolved shall be presented to the court.4 The
party who filed the initial Video Deposition Designation is
responsible for preparation of the final edited video in
accordance with all parties’ designations, and the court’s
rulings on objections. (Designations are not to be made for
witnesses who will appear live, nor for impeachment on
cross-examination.)
____________________ File unresolved objections to oral and video deposition
(2 weeks before docket call) extracts.
Date will be set by court. If numerous objections are filed the court may set a
Usually within 10 days prior hearing to consider all pending motions and objections.
to docket call.
January 25, 2017 Docket call and Final Pretrial at 9:00 a.m. in
Beaumont, Texas. Date parties should be prepared to try
case. Provide court with two copies of Exhibit list, using
form from District Clerks Office. Absent agreement of the
parties, this should not have exhibits which were not listed
in the Final Pretrial Order.
January 30, 2017 9:00 a.m. Jury selection and trial in Beaumont, Texas.
Case will then be tried in order with other cases on the
docket. Depending on disposition of other cases on court’s
docket, jury selection may be the following week. About a
month before docket call, counsel may wish to consult with
counsel for the other cases on the January docket to
determine whether their cases are likely to settle.
4
Opposing counsel shall confer to determine whether objections can be resolved without
a court ruling. The court needs a copy of the pertinent deposition to rule on any objection.
(Court Form 1/27/2017) Page 10
