MacKinnon v. Gray et al

Filing 24

ORDER VACATING SCHEDULING ORDER AND SETTING A SCHEDULING CONFERENCE FOR 10/30/2019 AT 9:30AM signed by Magistrate Judge Jeremy D. Peterson on 10/9/2019. (Attachments: # 1 Standard Scheduling Order)(Dunbar-Kari, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Sean MacKinnon

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Case No. 1:18-cv-00964 DAD-JDP

Plaintiff,

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ORDER SETTING MANDATORY
SCHEDULING CONFERENCE

v.

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C. Gray., et al.

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Defendant(s).

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enter a scheduling conference order within 90 days of the date when the complaint is served on

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defendant. Therefore, you are ordered to appear at a telephonic scheduling conference (dial-in

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number: 1-888-204-5984; passcode: 4446176) before U.S. Magistrate Judge Jeremy D.

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Peterson.  

Rule 16 of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) requires the court to

The court is unable to conduct a scheduling conference until defendant(s) has/have been

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served with the summons and complaint. Accordingly, plaintiff(s) shall diligently pursue

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service of summons and complaint and dismiss those defendants against whom plaintiff(s) will

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not pursue claims. Plaintiff(s) shall promptly file proof(s) of service of the summons and

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complaint so the court has a record of service. Counsel are referred to Fed. R. Civ. P., Rule 4,

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regarding timely service of the complaint. Failure to effect timely service of summons and

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complaint may result in the imposition of sanctions, including dismissal of unserved

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defendants.
Per Rule 16, this order may be served on counsel for plaintiff(s) before appearances of

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defendant(s) are due. It is the obligation of counsel for plaintiff(s) to serve a copy of this order

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on defendant(s), or, if identified, on their counsel, promptly upon receipt of this order, and to

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file an appropriate proof of such service with the court, in compliance with Rule 135(a) of the

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Local Rules of Practice for the Eastern District of California (“Local Rules”).
Participation in the scheduling conference is mandatory for any party not represented by

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counsel. Only counsel who are thoroughly familiar with the facts and the law of the instant

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case, and who have full authority to bind their clients, shall appear. Trial counsel should

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participate in the scheduling conference whenever possible. The conference may last as long

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as 45 minutes.

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A joint scheduling report, prepared and executed by all counsel and pro se parties, shall

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be electronically filed in CM/ECF one full week prior to the scheduling conference and shall

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be e-mailed, in Microsoft Word format, to [e-mail]. For reference

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purposes, the caption of the joint scheduling report should include the date and time of the

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scheduling conference. Counsel are to discuss settlement thoroughly with their clients and

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with each other before drafting the joint scheduling report. If the case is settled, promptly

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inform the court. Counsel are expected to comply with the requirements of this order even if

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settlement negotiations are progressing, unless a notice of settlement is filed pursuant to Local

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Rule 160, in which case a joint scheduling report and participation in the scheduling

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conference will not be required.
At least ten days prior to the scheduling conference, trial counsel for all parties shall

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conduct and conclude a conference at a time and place arranged by counsel for plaintiff(s).

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This conference may be in person or telephonic.

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Form and Contents of Joint Scheduling Report

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Joint scheduling reports are to be e-mailed, in Microsoft Word format, to

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[e-mail]. The joint scheduling report shall address the following topics in

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corresponding numbered paragraphs:

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1.

Overview. Brief overview of the factual and legal contentions set forth in the

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2.

Deadline for amendments. A proposed deadline for amendments to pleadings.

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Any proposed amendment to the pleadings presently on file shall be filed by its proponent

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contemporaneously with the scheduling conference report. If the matter cannot be resolved at

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the scheduling conference, the matter will be set as a motion to amend in accordance with the

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Local Rules.

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3.

Factual summary. A summary of uncontested and contested facts.

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4.

Legal issue summary. A summary of the legal issues that are undisputed—e.g.,

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jurisdiction, venue, applicable federal or state law—as well as a summary of any disputed legal

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issues.

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5.

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Procedural status. The status of all matters that are presently set before the

court—e.g., hearings of all motions.

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6.

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following:

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Discovery plan. A complete and detailed discovery plan addressing at least the

a.

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A deadline for the exchange of initial disclosures required by Fed. R. Civ.

P. 26(a)(1) or a statement that disclosures have already been exchanged;

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b.

a deadline for the close of non-expert discovery;

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c.

a deadline for disclosure of expert witnesses as required by Fed. R. Civ. P.

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a deadline for expert witness discovery;

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any proposed changes to the limits on discovery imposed by Fed. R. Civ.

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26(a)(2);

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P. 26(b); 30(a)(2)(A), (B); 30(d); or 33(a);

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f.

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whether the parties anticipate the need for a protective order shielding any

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information subject to discovery—such as trade secrets or other protected commercial

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information;

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g.

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any issues or proposals relating to the timing, sequencing, phasing, or

scheduling of discovery;

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h.

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whether the parties anticipate the need to take discovery outside the United

States and, if so, a description of the proposed discovery;

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i.

j.

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whether any party anticipates video and/or sound recording of depositions;

whether the parties foresee a need for a mid-discovery status report and

and

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conference and, if so, a proposed date for such a conference.

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7.

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Discovery relating to electronic, digital, and magnetic data. Prior to a Fed. R.

Civ. P. 26(f) conference, counsel must investigate their respective clients’ information

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management systems and become familiar with their operation, including how information is

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stored and how it can be retrieved. Counsel must also conduct a reasonable review of their

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respective clients’ computer files to ascertain the contents thereof, including archival and

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legacy data (outdated formats or media), and disclose in initial discovery (self-executing

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routine discovery) the computer-based evidence that may be used to support claims or

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defenses. A party seeking discovery of computer-based information must notify the opposing

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party immediately, but no later than the Fed. R. Civ. P. 26(f) conference, of that fact and

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identify as clearly as possible the categories of information that may be sought.

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Duty to Meet and Confer. The parties must discuss the following matters during

the Fed. R. Civ. P. 26(f) conference:

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a. Computer-based information (in general). The parties shall attempt to

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agree on steps they will take, by specific dates, to segregate and preserve computer-based

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information.

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b. E-mail. The parties shall attempt to agree on the scope of e-mail discovery

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and an e-mail search protocol. The parties shall discuss how they will handle metadata. The

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parties shall attempt to reach an agreement regarding inadvertent production of privileged

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information contained in email.

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c. Deleted information. The parties shall attempt to agree whether restoration

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of deleted information is necessary, the extent to which it is necessary, and who will bear the

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costs of such restoration.

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d. Back-up data. The parties shall attempt to agree whether back-up data is

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necessary, the extent to which it is needed, and who will bear the costs of obtaining back-up

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data.

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Agreed-upon dates. Counsel shall attempt to agree on proposed dates for the

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following. Once established, these dates should be considered firm. Dates should be set to

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allow the court to decide any matters under submission before the pre-trial conference.

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a. Motions. Filing non-dispositive and dispositive pre-trial motions, with the

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understanding that motions, with the exception of trial motions such as motions in limine, will

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not be entertained after the agreed-upon date, which shall be no later than 10 weeks before the

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proposed pre-trial conference date.

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b. Pre-trial conference. This date shall be no later than 45 days before the

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proposed trial date.

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c. Trial.

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10.

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Settlement. At the conference referred to above, counsel are encouraged to

discuss settlement, and the joint scheduling report shall address the possibility of settlement.

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The parties shall indicate when they desire a settlement conference—e.g., before further

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discovery, after discovery, after pre-trial motions.

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Jury. A statement as to whether the case is a jury or non-jury case. If the parties

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disagree as to whether a jury trial has been timely demanded or whether one is available on
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some or all of the claims, the statement shall include a summary of each party’s position.
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12.

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Trial length. An estimate of the number of trial days is required. If the parties

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cannot agree, each party shall give his or her best estimate. In estimating the number of trial

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days, the parties should keep in mind that this court is normally able to devote the entire day to

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trial.

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Consent. Whether the parties intend to consent to proceed before a United States

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magistrate judge. Presently, when a civil trial is set before the district judges in the Fresno

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Division, any criminal trial, which conflicts with the civil trial will take priority, even if the

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civil trial was set first. Continuances of a civil trial under these circumstances may no longer

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be entertained, absent good cause, but the civil trial may instead trail from day to day or week

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to week until the completion of either the criminal case or the older civil case. The parties are

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advised that they are free to withhold consent or decline magistrate jurisdiction without adverse

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substantive consequences.

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Procedural proposals. Whether either party requests bifurcation or phasing of

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trial or has any other suggestion for shortening or expediting discovery, pre-trial motions, or

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trial.

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15.

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Related matters. Whether this matter is related to any matter pending in this

court or any other court, including bankruptcy court.

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Chambers Information

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The parties are directed to the court’s website at www.caed.uscourts.gov for specific

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information regarding court procedures. Select “U.S. Magistrate Judge Jeremy D. Peterson”

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from the “Judges” and “All Judges” tab and then click on “Civil Procedures” under the “Case

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Management Procedures” heading.

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Should counsel or a party appearing pro se fail to appear at the mandatory scheduling

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conference, or fail to comply with the directions as set forth above, an ex parte hearing may be

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held. At such hearing, a judgment of dismissal, default, or other appropriate type may be

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entered, and sanctions, including contempt of court, may be imposed.

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