Rev. 6/20/12 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS _______________________, ) ) ) ) ) ) ) ) ) Plaintiff, v. ________________________, Defendant. Case No. _________ SCHEDULING ORDER On (date), pursuant to Fed. R. Civ. P. 16(b), the court conducted a [telephone] scheduling conference in this case with the parties.1 Plaintiff appeared [[in person] [through its representative (insert name)] and] [without counsel] [through counsel (list attorneys)]. Defendant appeared [[in person] [through its representative (insert name)] and] [without counsel] [through counsel (list attorneys)]. After consultation with the parties, the court enters this scheduling order, summarized in the table that follows: 1 As used in this scheduling order, the term “plaintiff” includes plaintiffs as well as counterclaimants, cross-claimants, third-party plaintiffs, intervenors, and any other parties who assert affirmative claims for relief. The term “defendant” includes defendants as well as counterclaim defendants, cross-claim defendants, third-party defendants, and any other parties who are defending against affirmative claims for relief. 1 American LegalNet, Inc. www.FormsWorkFlow.com Rev. 6/20/12 SUMMARY OF DEADLINES AND SETTINGS Event Deadline/Setting Plaintiff's settlement proposal Defendant's settlement counter-proposal Confidential settlement reports to magistrate judge, with identification of agreed-upon mediator or other ADR neutral Mediation or other ADR process completed Settlement conference with court Initial disclosures exchanged All discovery completed Early discovery completed Experts disclosed by plaintiff Experts disclosed by defendant Rebuttal experts disclosed Independent medical examinations Supplementation of disclosures Preliminary witness and exhibit disclosures Jointly proposed protective order submitted to court Motion and brief in support of proposed protective order (only if parties disagree about need for and/or scope of order) Motions to join additional parties or otherwise amend the pleadings Motions to dismiss for lack of personal jurisdiction, venue, propriety of the parties, or failure to state a claim All other potentially dispositive motions (e.g., summary judgment) Motions challenging admissibility of expert testimony Comparative fault identification Status conference Final pretrial conference 2 American LegalNet, Inc. www.FormsWorkFlow.com Rev. 6/20/12 SUMMARY OF DEADLINES AND SETTINGS Proposed pretrial order due Trial 1. Alternative Dispute Resolution (ADR). a. By (date), plaintiff shall submit to defendant a good faith proposal to settle the case. By (date), defendant shall make a good faith response to plaintiff’s proposal, either accepting the proposal or submitting defendant’s own good faith proposal to settle the case. By (date), each of the parties shall submit independently, by way of e-mail or letter (preferably the former), addressed to the magistrate judge (but not the district judge), a confidential settlement report. These reports shall briefly set forth the parties’ settlement efforts to date, current evaluations of the case, views concerning future settlement negotiations and the overall prospects for settlement, and a specific recommendation regarding mediation and/or any other ADR method, together with an indication concerning who has been selected by the parties (preferably jointly) to serve as a mediator or other neutral in an ADR process. These reports need not be served upon opposing parties and shall not be filed with the Clerk’s Office. [The court may thereafter order participation in an ADR process.] b. Settlement may be enhanced by use of mediation (or other chosen ADR process). [The parties have selected (insert name) to conduct the mediation (or other chosen ADR process).] [Counsel shall provide the name of an agreed-upon mediator (or other ADR neutral) to the court, and the scheduled date of the mediation (or other chosen ADR process), as part of the above-described confidential settlement reports; if the 3 American LegalNet, Inc. www.FormsWorkFlow.com Rev. 6/20/12 parties are unable to jointly agree upon a mediator (or other neutral), each shall suggest a mediator (or other neutral) and then the court will select a mediator (or other neutral).] [Absent further order of the court, the ADR process shall be held no later than (date), before the mediator (or other neutral) chosen by the parties or selected by the court).] [An ADR report, on the form located on the court’s Internet website, must be filed by defense counsel within five days of the scheduled ADR process (http://www.ksd.uscourts.gov/adr-report/).] [A settlement conference is scheduled for (date) in the magistrate judge’s courtroom (insert Courtroom #, building, street, and city).] 2. Discovery. a. The parties [have exchanged] [shall exchange by (date)] the information required by Fed. R. Civ. P. 26(a)(1). [Optional: In order to facilitate settlement negotiations and to avoid unnecessary expense, the parties have agreed that, without any need for formal requests for production, copies of the various documents described in the parties’ respective Rule 26(a)(1) disclosures shall be [exchanged] [made available for inspection and copying] by (date).] The parties are reminded that, although Rule 26(a)(1) is keyed to disclosure of information that the disclosing party “may use to support its claims or defenses, unless solely for impeachment,” the advisory committee notes to the 2000 amendments to that rule make it clear that this also requires a party to disclose information it may use to support its denial or rebuttal of the allegations, claim, 4 American LegalNet, Inc. www.FormsWorkFlow.com Rev. 6/20/12 or defense of another party. In addition to other sanctions that may be applicable, a party who without substantial justification fails to disclose information required by Fed. R. Civ. P. 26(a) or Fed. R. Civ. P. 26(e)(1) is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed. See Fed. R. Civ. P. 37(c)(1). b. All discovery shall be commenced or served in time to be completed by (date). Discovery on (issue for early discovery) shall be completed by (date). c. The parties [intend] [do not intend] to serve disclosures and discovery electronically, as permitted by D. Kan. Rules 5.4.2 and 26.3. d. The court [considered] [resolved] the following discovery problem(s) raised by one or more of the parties: (List problem(s) and resolution(s), if any). e. Consistent with the parties’ agreements as set forth in the planning conference report submitted pursuant to Fed. R. Civ. P. 26(f), electronically stored information (ESI) in this case will be handled as follows: (Describe any specific agreements set forth in the Rule 26(f) report). f. Consistent with the parties’ agreements as set forth in their Rule 26(f) report, claims of privilege or of protection as trial-preparation material asserted after production will be handled as follows: (Describe any “quick peek,” “clawback,” or other agreements set forth in the Rule 26(f) report). 5 American LegalNet, Inc. www.FormsWorkFlow.com Rev. 6/20/12 g. No party shall serve more than ___ interrogatories, including all discrete subparts, to any other party. h. There shall be no more than ___ depositions by plaintiff and ___ by defendant. i. Each deposition shall be limited to ___ hours, except for the deposition(s) of ___________________ which shall be limited to ___ hours. All depositions shall be governed by the written guidelines that are available on the court’s Internet website, (http://www.ksd.uscourts.gov/deposition-guidelines/). j. Disclosures required by Fed. R. Civ. P. 26(a)(2), including reports from retained experts, shall be served by plaintiff by (date), and by defendant by (date). [Option 1: The parties have stipulated that rebuttal experts will not be permitted in this case.] [Option 2: Disclosures and reports by any rebuttal experts shall be served by (date).] The parties shall serve any objections to such disclosures (other than objections pursuant to Fed. R. Evid. 702-705, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), or similar case law), within 11 days after service of the disclosures upon them. These objections should be confined to technical objections related to the sufficiency of the written expert disclosures (e.g., whether all of the information required by Rule 26(a)(2)(B) has been provided, such as lists 6 American LegalNet, Inc. www.FormsWorkFlow.com Rev. 6/20/12 of prior testimony and publications). These objections need not extend to the admissibility of the expert’s proposed testimony. If such technical objections are served, counsel shall confer or make a reasonable effort to confer consistent with requirements of D. Kan. Rule 37.2 before filing any motion based on those objections. As noted below, any motion to compel discovery in compliance with D. Kan. Rules 7.1 and 37.2 must be filed and served within 30 days of the default or service of the response, answer, or objection which is the subject of the motion, unless the time for filing such a motion is extended for good cause shown; otherwise, the objection to the default, response, answer, or objection shall be deemed waived. See D. Kan. Rule 37.1(b). k. The parties shall complete all Fed. R. Civ. P. 35 physical or mental examinations by (date). If the parties disagree about the need for or the scope of such an examination, a formal motion shall be filed sufficiently in advance of this deadline in order to allow the motion to be fully briefed by the parties and decided by the court before the examination deadline. l. Supplementations of disclosures under Fed. R. Civ. P. 26(e) shall be served at such times and under such circumstances as required by that rule. In addition, such supplemental disclosures shall be served ([optional] insert dates or intervals), and in any event 40 days before the deadline for completion of all discovery. The supplemental disclosures served 40 days before the deadline for completion of all 7 American LegalNet, Inc. www.FormsWorkFlow.com Rev. 6/20/12 discovery must identify the universe of all witnesses and exhibits that probably or even might be used at trial. The rationale for the mandatory supplemental disclosures 40 days before the discovery cutoff is to put opposing counsel in a realistic position to make strategic, tactical, and economic judgments about whether to take a particular deposition (or pursue follow-up “written” discovery) concerning a witness or exhibit disclosed by another party before the time allowed for discovery expires. Counsel should bear in mind that seldom should anything be included in the final Rule 26(a)(3) disclosures, which as explained below usually are filed 21 days before trial, that has not previously appeared in the initial Rule 26(a)(1) disclosures or a timely Rule 26(e) supplement thereto; otherwise, the witness or exhibit probably will be excluded at trial. See Fed. R. Civ. P. 37(c)(1). m. [Optional] The parties shall serve preliminary witness and exhibit disclosures pursuant to Fed. R. Civ. P. 26(a)(3)(A)(i) & (iii) by (date). These disclosures shall provide a realistic listing of the witnesses and exhibits that actually are anticipated to be used during trial of the case instead of merely repeating the initial disclosures under Fed. R. Civ. P. 26(a)(1)(A)(i) & (ii). n. At the final pretrial conference after the close of discovery, the court will set a deadline, usually 21 days prior to the trial date, for the parties to file their final disclosures pursuant to Fed. R. Civ. P. 26(a)(3)(A)(i), (ii) & (iii). As indicated above, if a witness or exhibit appears on a final Rule 26(a)(3) disclosure 8 American LegalNet, Inc. www.FormsWorkFlow.com Rev. 6/20/12 that has not previously been included in a Rule 26(a)(1) disclosure (or a timely supplement thereto), that witness or exhibit probably will be excluded at trial. See Fed. R. Civ. P. 37(c)(1). o. [Optional] Discovery in this case may be governed by a protective order. If the parties agree concerning the need for and scope and form of such a protective order, their counsel shall confer and then submit a jointly proposed protective order by (date). Such jointly proposed protective orders should be drafted in compliance with the written guidelines that are available on the court’s Internet website: (http://www.ksd.uscourts.gov/guidelines-for-agreed-protective-orders-district-ofkansas/). At a minimum, such proposed orders shall include, in the first paragraph, a concise but sufficiently specific recitation of the particular facts in this case that would provide the court with an adequate basis upon which to make the required finding of good cause pursuant to Fed. R. Civ. P. 26(c). If the parties disagree concerning the need for, and/or the scope or form of a protective order, the party or parties seeking such an order shall file an appropriate motion and supporting memorandum by (date). p. To avoid the filing of unnecessary motions, the court encourages the parties to utilize stipulations regarding discovery procedures. However, this does not apply to extensions of time that interfere with the deadlines to complete all discovery, for the briefing or hearing of a motion, or for trial. See Fed. R. Civ. P. 29; D. Kan. Rule 6.1(a). 9 American LegalNet, Inc. www.FormsWorkFlow.com Rev. 6/20/12 Nor does this apply to modifying the requirements of Fed. R. Civ. P. 26(a)(2) concerning experts’ reports. See D. Kan. Rule 26.4(b). 3. Motions. a. Any motion for leave to join additional parties or to otherwise amend the pleadings shall be filed by (date). b. Provided that such defenses have been timely preserved, any motions to dismiss for lack of personal jurisdiction, venue, propriety of the parties, or failure to state a claim upon which relief can be granted shall be filed by (date). c. All other potentially dispositive motions (e.g., motions for summary judgment) shall be filed by (date). d. All motions to exclude testimony of expert witnesses pursuant to Fed. R. Evid. 702-705, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), or similar case law, shall be filed no later than (date). e. Any motion to compel discovery in compliance with D. Kan. Rules 7.1 and 37.2 shall be filed and served within 30 days of the default or service of the response, answer, or objection which is the subject of the motion, unless the time for filing such a motion is extended for good cause shown. Otherwise, the objection to the default, response, answer, or objection shall be waived. See D. Kan. Rule 37.1(b). 10 American LegalNet, Inc. www.FormsWorkFlow.com Rev. 6/20/12 4. Other Matters. a. By (date), any party asserting comparative fault shall identify all persons or entities whose fault is to be compared. [The parties agree that principles of comparative fault do not apply to this case.] b. [Optional] Pursuant to Fed. R. Civ. P. 16(a), a status conference is scheduled for (date) [by telephone conference call, to be initiated by the magistrate judge] [in the magistrate judge’s courtroom (insert Courtroom #, building, street, and city)]. c. Pursuant to Fed. R. Civ. P. 16(e), a final pretrial conference is scheduled for (date) and (time), in the U.S. Courthouse, Room ___, _________________, _______________, Kansas, or by telephone if the judge determines that the proposed pretrial order is in the appropriate format and that there are no other problems requiring counsel to appear in person. Unless otherwise notified, the undersigned magistrate judge will conduct the conference. No later than (date), defendant shall submit the parties’ proposed pretrial order (formatted in WordPerfect X5, Word 2010, or earlier version) as an attachment to an Internet e-mail sent to ksd_[judge]_chambers@ksd.uscourts.gov. The proposed pretrial order shall not be filed with the Clerk’s Office. It shall be in the form available on the court’s internet website (www.ksd.uscourts.gov), and the parties shall affix their signatures according to the procedures governing multiple signatures set forth in paragraphs II(C) of the Administrative Procedures for Filing, Signing, and Verifying Pleadings and Papers by Electronic Means in Civil Cases. 11 American LegalNet, Inc. www.FormsWorkFlow.com Rev. 6/20/12 d. The parties expect the trial of this case to take approximately ____ (days or weeks). [This case is set for trial on the court’s docket beginning on (date). Unless otherwise ordered, this is not a “special” or “No. 1” trial setting. Therefore, during the month preceding the trial docket setting, counsel should stay in contact with the trial judge’s courtroom deputy to determine the day of the docket on which trial of the case actually will begin. The trial setting may be changed only by order of the judge presiding over the trial.] [The court will subsequently set the case for trial.] e. The parties [are] [are not] prepared to consent to trial by a U.S. Magistrate Judge [at this time,] [or as a backup if the assigned U.S. District Judge determines that his or her schedule is unable to accommodate the scheduled trial date]. f. The arguments and authorities section of briefs or memoranda submitted shall not exceed 30 pages, absent an order of the court. [Judge Belot has entered a standing order governing dispositive and non-dispositive motions, and a separate standing order governing when hard copies of electronically filed documents must be delivered to chambers. These standing orders can be found on the court’s Internet website: (http://www.ksd.uscourts.gov/rules-sub-page/) This scheduling order shall not be modified except by leave of court upon a showing of good cause. IT IS SO ORDERED. 12 American LegalNet, Inc. www.FormsWorkFlow.com Rev. 6/20/12 Dated this ____ day of _______________, 20__, at ________________, Kansas. ______________________________________ (Judge’s name) U.S. Magistrate Judge 13 American LegalNet, Inc. www.FormsWorkFlow.com