Case 4:20-cv-00180-ALM Document 37 Filed 03/24/20 Page 1 of 10 PageID #: 1283
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`United States District Court
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`§
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`Civil Action No. 4:20cv180
`Judge Mazzant
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`§§§§
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`HTC CORPORATION and
`HTC AMERICA, INC.
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`v.
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`INNOVATION SCIENCES, LLC
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`ORDER GOVERNING PROCEEDINGS
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`This Order shall govern proceedings in this case. The following deadlines are hereby set:
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`1.
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`2.
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`3.
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`4.
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`Rule 26(f) attorney conference on or before: April 14, 2020
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`Complete initial mandatory disclosure required by this Order: April 24, 2020
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`File joint report of attorney conference: April 28, 2020. This should follow initial
`mandatory disclosures, so a realistic proposal regarding depositions and other
`discovery can be included.
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`The case is SET for a Rule 16 management conference on Tuesday, May 12,
`2020, at 3:00 p.m. at the Paul Brown United States Courthouse, 101 E. Pecan
`Street, Sherman, Texas 75090. 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 cause1.
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`RULE 26(F) ATTORNEY CONFERENCE
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`Rule 26(f) requires attorneys of record and all unrepresented parties to confer and attempt
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`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.
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`Before commencing the Rule 26(f) conference, counsel must discuss settlement options
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`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
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`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).
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`Case 4:20-cv-00180-ALM Document 37 Filed 03/24/20 Page 2 of 10 PageID #: 1284
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`The parties must include the following matters in the joint conference report:
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`1.
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`A brief factual and legal synopsis of the case.
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`2.
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`3.
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`The jurisdictional basis for this suit.
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`A list of the correct names of the parties to this action and any anticipated additional
`or potential parties.
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`(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.
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`4.
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`6.
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`A list of any cases related to this case pending in any state or federal court,
`identifying the case numbers and courts along with an explanation of the status of
`those cases.
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`Confirm that initial mandatory disclosure required by Rule 26(a)(1) and this order
`has been completed.
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`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.
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`7.
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`Describe in accordance with Rule 26(f):
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`(i)
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`The subjects on which discovery may be needed, when discovery should be
`completed, and whether discovery should be conducted in phases or be
`limited to or focused on particular issues.
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`(ii) Any issues relating to disclosure or discovery of electronically stored
`information (“ESI”), including the form or forms in which it should be
`produced (whether native or some other reasonably usable format) as well
`as any methodologies for identifying or culling the relevant and
`discoverable ESI. Any disputes regarding ESI that counsel for the parties
`are unable to resolve during conference must be identified in the report.
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`(iii) 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 (such as the potential need for a protective order and any
`procedures to which the parties might agree for handling inadvertent
`production of privileged information and other privilege waiver issues). A
`party asserting that any information is confidential should immediately
`apply to the Court for entry of a protective order.
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`(iv) Any changes that should be made in the limitations on discovery imposed
`by the Rules, whether federal or local, and any other limitations that should
`be imposed, as well as
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`(v) Whether any other orders should be entered by the Court pursuant to Federal
`Rule of Civil Procedure 26(c) or 16(b), (c)
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`8.
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`10.
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`11.
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`State the progress made toward settlement, and the present status of settlement
`negotiations, including whether a demand and offer has been made. If the parties
`have agreed upon a mediator, also state the name, address, and phone number of
`that mediator, and a proposed deadline for mediation. An early date is encouraged
`to reduce expenses. The Court will appoint a mediator if none is agreed upon.
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`The identity of persons expected to be deposed.
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`Estimated trial time and whether a jury demand has been timely made.
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`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).
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`12. Whether the parties jointly consent to trial before a magistrate judge.
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`13.
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`Any other matters that counsel deem appropriate for inclusion in the joint
`conference report or that deserve the special attention of the Court at the
`management conference.
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`Case 4:20-cv-00180-ALM Document 37 Filed 03/24/20 Page 4 of 10 PageID #: 1286
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`DISCOVERY
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`Initial mandatory disclosure pursuant to Rule 26(a)(1) shall be completed not later than
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`10 days after the deadline for the Rule 26 attorney conference and shall include the following,
`in addition to information required by Rule 26(a)(1):
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`The correct names of the parties to the action.
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`The name and, if known, address and telephone number of any potential parties to
`the action.
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`2.
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`3.
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`4.
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`The name and, if known, the address and telephone number of persons having
`knowledge of facts relevant to the 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 two lists are not needed.
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`The authorizations described in Local Rule CV-34.
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`A copy of all documents, electronically stored information, witness statements, and
`tangible things in the possession, custody, or control of the disclosing party that are
`relevant to the claim or defense of any party. This may be combined with
`disclosures under Rule 26(a)(1)(A)(ii) so duplication is avoided. In cases involving
`a disproportionate burden of disclosure of a large number of documents on one
`party, the parties may agree on prior inspection to reduce the need for copy. Parties
`are encouraged to agree upon provision of information by electronic means.
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`See Local Rule CV-26(d) for meaning of “relevant to the claim or defense of any party.”
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`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. Moreover, the proportionality standard set forth in Rule 26(b)(2)(C) should be applied in
`each case when formulating a discovery control plan. To further the application of the
`proportionality standard in discovery, requests for production of ESI and related responses should
`be reasonably targeted, clear, and as specific as practicable.
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`Early Rule 34 requests may be delivered in compliance with Rule 26(d)(2). See Fed. R.
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`Civ. P. 26(d)(2). However, 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.
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`Case 4:20-cv-00180-ALM Document 37 Filed 03/24/20 Page 5 of 10 PageID #: 1287
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`R. Civ. P. 26(d), 34. Depositions may be taken, 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.
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`Following the management conference, the Court will enter a scheduling order setting
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`deadlines controlling disposition of the case. If the Court concludes that a management
`conference is not necessary after receiving the parties’ 26(f) report, it may enter a scheduling
`order and cancel the management conference.
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`The fact that the scheduling order will have a deadline for completion of discovery is NOT
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`an invitation, or authorization, to withhold documents or information required to be disclosed as
`part of initial mandatory disclosure, 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. This will allow experts to be timely identified and
`prepared to testify, witnesses to be efficiently deposed, and any follow-up paper discovery to be
`completed by the deadline to be set for completion of discovery. The Court expects that, in most
`cases, after reading the pleadings and having a frank discussion of the issues and discovery during
`the Rule 26 attorney conference, a review of the opposing party’s initial disclosures should alert
`an attorney to any remaining information which should have been disclosed, so that such
`information can be provided before the Rule 16 management conference.
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`DISCOVERY DISPUTES
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`A magistrate judge is available during business hours to immediately hear discovery
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`disputes and to enforce provisions of the rules. The hotline is an appropriate means to obtain an
`immediate ruling on whether a discovery request is relevant to the claims or defenses and on
`disputes which arise during depositions. The hotline number is (903) 590-1198. See Local Rule
`CV-26(e).
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`CONTESTED MOTION PRACTICE
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`Counsel and parties shall comply with Local Rules CV-7, 10, 11, and 56, in addition to the
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`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.
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`Case 4:20-cv-00180-ALM Document 37 Filed 03/24/20 Page 6 of 10 PageID #: 1288
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`If a document filed electronically exceeds twenty (20) pages in length, including
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`attachments, a paper copy of the filed document must be sent contemporaneously to Judge
`Mazzant's chambers in Sherman.
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`Pursuant to Local Rule CV-7(b), highlight in the courtesy copy, the portions of the
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`affidavits or other supporting documents which are cited in your motion or response.
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`Any reply or sur-reply must be filed in accordance with Local Rule CV-6 and Local Rule
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`CV-7(f). The parties are reminded that “[t]he court need not wait for the reply or sur-reply before
`ruling on the motion.” Local Rule CV-7(f) (emphasis added).
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`SAFEGUARDING PERSONAL INFORMATION
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`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:
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`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.
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`If such information is elicited during testimony or other court proceedings, it will become
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`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.
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`FAILURE TO SERVE
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`Any defendant who has not been served with the summons and complaint within 90 days
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`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).
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`Case 4:20-cv-00180-ALM Document 37 Filed 03/24/20 Page 7 of 10 PageID #: 1289
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`FICTITIOUS PARTIES
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`The name of every party shall be set out in the complaint. See Fed. R. Civ. P. 10(a). The
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`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 Fed. R. Civ. P. 15(c).
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`SETTLEMENT
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`Plaintiff’s counsel shall immediately notify the Court upon settlement.
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`COMPLIANCE
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`Attorneys and pro se litigants who appear in this court must comply with the deadlines set
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`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.
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`Failure to comply with relevant provisions of the Local Rules, the Federal Rules of Civil
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`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).
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`Case 4:20-cv-00180-ALM Document 37 Filed 03/24/20 Page 8 of 10 PageID #: 1290
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`Appendix 1
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`PROPOSED SCHEDULING ORDER DEADLINES
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`The following actions shall be completed by the date indicated.1 (The times indicated are
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`the standard for most cases. Counsel should be prepared to explain the need for requested changes)
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`____________________
`(1 week after mgmt conf.)
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`____________________
`(6 weeks after mgmt conf.)
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`six weeks prior to mediation ddl
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`Deadline for motions to transfer
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`Deadline to add parties
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`Mediation must occur by this date.
`Deadline by which the parties shall notify the Court of the
`name, address, and telephone number of the agreed-upon
`mediator, or request that the Court select a mediator, if they
`are unable to agree on one.
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`______________ ______
`(10 weeks after mgmt. conf.)
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`_________________ ___
`(12 weeks after mgmt conf.)
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`______________ ______
`(14 weeks after mgmt. conf.)
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`____________________
`(14 weeks after mgmt conf.)
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`Disclosure of expert testimony pursuant to Fed. R. Civ. P.
`26(a)(2) and Local Rule CV-26(b) on issues for which the
`party bears the burden of proof.
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`Deadline for Plaintiff to file amended pleadings
`(A motion for leave to amend is required.)
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`Disclosure of expert testimony pursuant to Fed. R. Civ. P.
`26(a)(2) and Local Rule CV-26(b) on issues for which the
`party does not bear the burden of proof.
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`Deadline for Defendant’s final amended pleadings
`(A motion for leave to amend is required.)
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`Deadline to object to any other party’s expert witnesses.
`Objection shall be made as 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
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`Deadline for motions to dismiss, motions for summary
`judgment, or other dispositive motions.
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` weeks after disclosure
`of an expert is made
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`(14 weeks after mgmt conf.
`but no later than 110 days prior
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`1If a deadline falls on a Saturday, Sunday, or a legal holiday as defined in Fed. R. Civ. P. 6, the effective date is the
`first federal court business day following the deadline imposed.
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`to deadline for submission of
`Joint Final Pretrial Order)
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`_________________ ___
`(24 weeks after mgmt conf.)
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`_____________________
`(6 weeks before final pretrial conf.)
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`Counsel and unrepresented parties are each responsible for
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`(6 weeks before final pretrial conf.) 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).
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`All discovery shall be commenced in time to be completed
`by this date.
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`Notice of intent to offer certified records
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`Video Deposition Designation due. Each party who
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`____________ ________
`(5 weeks before final pretrial conf.) 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 cross examination line and page
`numbers to be included. Counsel must consult on any
`objections and only those which can not be resolved shall
`be presented to the court. 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.
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`Motions in limine due
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`______ ______________
`(30 days before final pretrial conf.) File Joint Final Pretrial Order (See www.txed.uscourts.gov).
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`Response to motions in limine due2
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`2This is not an invitation or requirement to file written responses. Most motions in limine can be decided without a
`written response. But, if there is particularly difficult or novel issue, the Court needs some time to review the
`matter. 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 the issues which are resolved.
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`(2 weeks before final pretrial conf.) File objections to witnesses, deposition extracts, and
`exhibits, listed in pre-trial order.3 (This does not extend
`deadline to object to expert witnesses.)
`File Proposed Jury Instructions/Form of Verdict (or
`Proposed Findings of Fact and Conclusions of Law)
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`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 final pretrial conf.
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`February 26, 2021
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`Final Pretrial Conference at 9:00 a.m. at the Paul Brown
`United States Courthouse located at 101 East Pecan Street in
`Sherman, Texas. All cases on the Court’s Final Pretrial
`Conference docket for this day have been set at 9:00 a.m.
`However, prior to the Final Pretrial Conference date, the
`Court will set a specific time between 9:00 a.m. and 4:00
`p.m. for each case, depending on which cases remain on the
`Court’s docket.
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` 10:00 a.m. Jury selection and trial (or bench trial) at the Paul
`Brown United States Courthouse located at 101 East Pecan
`Street in Sherman, Texas. Cases that remain for trial
`following the Court’s Pretrial docket will be tried between
`April 5, 2021, and April 30, 2021. A specific trial date in
`this time frame will be selected at the Final Pretrial
`Conference.
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`to be determined
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`3Within five calendar days after the filing of any objections, opposing counsel shall confer to determine whether
`objections can be resolved without a court ruling. The parties shall notify the court of all issues which are resolved.
`The court needs a copy of the exhibit or the pertinent deposition pages to rule on the objection.
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`10
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