Opinion
CASE NO. 6:03-MD-1512, LEAD CASE 6:03-CV-126 ("ERISA")
February 2, 2004
PRACTICE AND PROCEDURE ORDER NO. 6 (ERISA)
The Court ORDERS Plaintiffs' lead counsel and Defendants' counsel to meet and draft a proposed docket control order and discovery order for this action. The parties shall meet no later than February 12, 2004, and shall submit a joint proposed docket control order and a joint proposed discovery order no later than February 14, 2004. No later than February 17, 2004 the parties may submit proposals and briefing concerning any unresolvable discovery or scheduling issues. The Court further ORDERS a status conference set for February 19, 2004 at 9:00 A.M. in Tyler, Texas.
The Court has attached a copy of its standard docket control order to assist the parties in drafting their proposed order. The Court recognizes that this case may require significant changes to the Court's typical docket control order, including class certification entries, but includes the Court's standard form to demonstrate its typical procedures.
NOTICE OF SCHEDULING CONFERENCE, PROPOSED DATES FOR DOCKET CONTROL ORDER AND DISCOVERY ORDER
The court, sua sponte, issues this Notice of Scheduling Conference, Proposed Dates for Docket Control Order and Discovery Order.Notice of Scheduling Conference
Pursuant to Fed.R.Civ.P. 16 and Local Rule CV-16, the Scheduling Conference in this case is set for ___ at the United States District Court, 104 North 3rd Street, Lufkin, Texas 75901. The parties are directed to meet and confer in accordance with Fed.R.Civ.P. 26(f) no later than fourteen (14) days before the conference. The parties are excused from the requirement of filing a written proposed discovery plan in this case.
Telephonic Appearance
In the event of conflicting schedules, the parties are allowed to attend telephonically. If appearing by phone, Counsel is requested to notify the Court within 14 days from receipt of this notice via facsimile (903) 590-1190 that one or both parties will be attending telephonically. If one party is appearing by phone, Counsel for that party is requested to phone the Court (903-590-1084) at the scheduled hearing time as provided above. If both counsel appear telephonically, Plaintiff's counsel is requested to initiate the conference call for the parties, phoning Judge Davis last at (903-590-1084) at the scheduled hearing time as provided above.
Stipulation of the Parties
It is not necessary to attend this Scheduling Conference if the parties agree to:
Upon stipulation to the above, within 14 days from receipt of this notice, Plain tiffs counsel is requested to provide the Court via facsimile (903) 590-1190 a letter agreement containing this information. The Court will then issue a Docket Control Order and a Mediation Order.
a. The proposed dates for the Docket Control Order as outlined in Appendix A;
b. The guidelines contained in the discovery order entered by the Court on this date;
c. A mediator (name, address and phone number);
d. Deadline by which to complete mediation; ande. Length of trial
Proposed Dates for Docket Control Order
The proposed dates for docket control order set forth in the attached Appendix A will be discussed at the Scheduling Conference.Discovery Order
At the Scheduling Conference, the parties may make requests and/or suggestions to the court regarding discovery. In the interim, after a review of the pleaded claims and defenses in this action and in furtherance of the management of the court's docket under Fed.R.Civ.P. 16, the court enters the following discovery ORDER:
1. Disclosures. Within thirty (30) days after the Scheduling Conference (or after the date the Docket Control Order is signed by the Court if no Scheduling Conference was held) and without awaiting a discovery request, each party shall disclose to every other party the following information:
(a) the correct names of the parties to the lawsuit;
(b) the name, address, and telephone number of any potential parties;
(c) the legal theories and, in general, the factual bases of the disclosing party's claims or defenses (the disclosing party need not marshal all evidence that may be offered at trial);
(d) the name, address, and telephone number of persons having knowledge of relevant facts, a brief statement of each identified person's connection with the case, and a brief, fair summary of the substance of the information known by such person;
(e) any indemnity and insuring agreements under which any person or entity may be liable to satisfy part or all of a judgment entered in this action or to indemnify or reimburse for payments made to satisfy the judgment;
(f) any settlement agreements relevant to the subject matter of this action;
(g) (if federal question) any statement of any party to the litigation; or (if diversity) any witness statements described in Tex. R. Civ. P. 192.3(h);
(h) in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills in the disclosing party's possession that are reasonably related to the injuries or damages asserted, and an authorization permitting the disclosure of such medical records and bills;2. Additional Disclosures. Within forty-five (45) days after the Scheduling Conference (or after the date the Docket Control Order is signed by the Court if no Scheduling Conference was held) and without awaiting a discovery request, each party shall provide to every other party the following information:
(a) a copy of all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to the pleaded claims or defenses involved in this action. By written agreement of all parties, alternative forms of disclosure may be provided in lieu of paper copies. For example, the parties may agree to exchange images of documents electronically or by means of computer disk; or the parties may agree to review and copy disclosure materials at the offices of the attorneys representing the parties instead of requiring each side to furnish paper copies of the disclosure materials;
(b) a complete computation of any category of damages claimed by any party to the action, making available for inspection and copying (See Local Rule CV-34), the documents or other evidentiary material on which such computation is based, including materials bearing on the nature and extent of injuries suffered; and
(c) those documents and authorizations described in Local Rule CV-34.
3. Testifying Experts. By the date set in the Docket Control Order, each party shall disclose to the other party or parties:
1. the expert's name, address, and telephone number;
2. the subject matter on which the expert will testify;
3. the general substance of the expert's mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the disclosing party, documents reflecting such information;
4. if the expert is retained by, employed by, or otherwise subject to the control of the disclosing party;
a. all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony; and
b. the expert's current resume and bibliography.
c. The parties shall be excused from furnishing an expert report of treating physicians unless reasonably requested to do so by another party.
4. Discovery Limitations. Discovery is limited in this cause to the disclosures described in Paragraphs 1-3 together with 25 interrogatories, 25 requests for admissions, the depositions of the parties, depositions on written questions of custodians of business records for third parties, depositions of two fact witnesses and two expert witnesses per side. "Side" means a party or a group of parties with a common interest.
5. Privileged Information. There is no duty to disclose privileged documents or information. However, the parties are directed to meet and confer concerning privileged documents or information after the Scheduling Conference. By the date provided in the Docket Control Order, the parties shall exchange privilege logs identifying the documents or information and the basis for any disputed claim of privilege in a manner that, without revealing information itself privileged or protected, with enable the other parties to assess the applicability of the privilege or protection. A party may move the court for an order compelling the production of any privileged documents or information identified on any other party's privilege log. If such a motion is made, the party asserting privilege shall file with the Court within thirty (30) days of the filing of the motion to compel any proof in the form of declarations or affidavits to support their assertions of privilege, along with the documents over which privilege is asserted for in camera inspection. If the parties have no disputes concerning privileged documents or information, then the parties shall inform the court of that fact by the date provided in the Docket Control Order.
6. Pre-trial Disclosures. By the date provided in the Docket Control Order, each party shall provide to every other party the following disclosures regarding the evidence that the disclosing party intends to present at trial:
(a) The name and, if not previously provided, the address and telephone number, of each witness, separately identifying those whom the party expects to present at trial and those whom the party may call if the need arises.
(b) The designation of those witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony.
(c) An appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those which the party expects to offer and those which the party may offer if the need arises.
By the date provided in the Docket Control Order, a party may serve and file a list disclosing (1) any objections to the use under Rule 32(a) of a deposition designated by another party under subparagraph (b) above; and (2) any objections, together with the grounds therefor, that may be made to the admissibility of materials identified under subparagraph (c), above. Objections not so disclosed, other than objections under Rules 402 and 403 of the Federal Rules of Evidence, shall be deemed waived unless excused by the court for good cause shown.
7. Signature. The disclosures required by this order shall be made in writing and signed by the party or counsel and shall constitute a certification that, to the best of the signer's knowledge, information and belief, such disclosure is complete and correct as of the time it is made.
8. Exchange of Disclosures. If feasible, counsel shall meet to exchange disclosures required by this order; otherwise, such disclosures shall be served as provided by Fed.R.Civ.P. 5.
9. Notification of the Court. The parties shall promptly file a notice with the court that the disclosures required under this order have taken place.
10. Duty to Supplement. After disclosure is made pursuant to this order, each party is under a duty to supplement or correct its disclosures immediately if the party obtains information on the basis of which it knows that the information disclosed was either incomplete or incorrect when made, or is no longer complete or true.
11. Protective Orders. A copy of the court's standard protective order is available on the court's website atwww.txed.uscourts.gov entitled "Judge Davis Standard Protective Order. A party may request that the court issue the Protective Order. However, a party may propose the issuance of or move to modify the terms of the Protective Order for good cause.
12. Discovery Disputes. Counsel are directed to contact the chambers of the undersigned for any "hotline" disputes before contacting the Discovery Hotline provided by Local Rule CV-26(f). If the undersigned is not available, the parties shall proceed in accordance with Local Rule CV-26(f).
13. No Excuses. A party is not excused from the requirements of this Discovery Order because it has not fully completed its investigation of the case, or because it challenges the sufficiency of another party's disclosures, or because another party has not made its disclosures. Absent court order to the contrary, a party is not excused from disclosure because there are pending motions to dismiss, to remand or to change venue. Parties asserting the defense of qualified immunity may submit a motion to limit disclosure to those materials necessary to decide the issue of qualified immunity.