Gonzalez Production Systems, Inc. v. Martinrea International Inc.

Filing 155

ORDER DENYING GONZALEZS MOTION TO BAR DOCUMENTS AND STRIKE PORTIONS OF MARTINREAS EXPERT REPORT [#124], DENYING MARTINREAS MOTION TO STRIKE GONZALEZS PROPOSED DAMAGES REPORT [#126], AND ISSUING SECOND AMENDED SCHEDULING ORDER. Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GONZALEZ PRODUCTION SYSTEMS,
INC.,
Plaintiff,

v.

Case No. 13-cv-11544
Honorable Gershwin A. Drain

MARTINREA INTERNATIONAL INC.,
MARTINREA HEAVY STAMPINGS INC.,
Defendants and Counter-Plaintiff.
/
ORDER DENYING GONZALEZ’S MOTION TO BAR DOCUMENTS AND
STRIKE PORTIONS OF MARTINREA’S EXPERT REPORT [#124],
DENYING MARTINREA’S MOTION TO STRIKE GONZALEZ’S
PROPOSED DAMAGES REPORT [#126], AND ISSUING
SECOND AMENDED SCHEDULING ORDER
I. INTRODUCTION
Plaintiff, Gonzalez Production Systems, Inc. (“Gonzalez”), commenced this action on
April 4, 2013 against Defendant Martinrea International Inc. (“Martinrea International”). See
Dkt. No. 1. On May 17, 2013, Plaintiff filed an Amended Complaint adding Martinrea Heavy
Stampings, Inc. (“Martinrea Stampings”) as an additional Defendant in this dispute. See Dkt. No.
8. In the Amended Complaint, Plaintiff contends that both Martinrea International and Martinrea
Stampings (collectively “Martinrea” or “Defendants”) are liable for breach of contract, or, in the
alternative, liable in equity under the theory of promissory estoppel. Id.
On June 17, 2013, Defendant Martinrea Stampings filed a counterclaim against Gonzalez
for breach of contract. See Dkt. No. 20. On November 17, 2014, this Court entered an Order
Denying Martinrea’s Motion for Summary Judgment and Granting Gonzalez’s Motion for Partial

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Summary Judgment. See Gonzalez Prod. Sys., Inc. v. Martinrea Int'l Inc., No. 13-cv-11544,
2014 WL 6455592, at *1 (E.D. Mich. Nov. 17, 2014).
Presently before the Court is Gonzalez’s Motion to Bar Documents and Strike Portions of
Martinrea’s Expert Report. See Dkt. No. 124. Also before the Court is Martinrea’s Motion to
Strike Gonzalez’s Proposed Damage Report. See Dkt. No. 126. For the reasons discussed herein
the Court will DENY both Motions and amend this case’s Scheduling Order.
II. BACKGROUND
This Court issued a Scheduling Order on February 10, 2014. The Order established, in
relevant part, that the close of discovery would be August 15, 2014. Because a deadline for
expert disclosures was not provided by the Court, the deadline for the disclosure of expert reports
in this case was 90 days before the date set for trial, or November 26, 2014.
On November 21, 2014, Martinrea supplemented its discovery responses by producing
332 pages of financial documentation in support of its counterclaim. On November 25, 2014,
Martinrea delivered a report from its testifying damages expert, Mark Robinson (“Mr.
Robinson”). Mr. Robinson’s expert report claims that Martinrea’s damages total $14,472,130.
Gonzalez requests that all documents relating to Martinrea’s damages be barred because they
were withheld during discovery and produced in an untimely manner.

Further, Gonzalez

requests that any portion of Mr. Robinson’s damages report relying on the previously-withheld
documents be stricken.
On November 26, 2014 Gonzalez delivered its own expert report from its testifying
damages expert, Larry Simon (“Mr. Simon”).
damages total $15,831,197.

Mr. Simon’s report claims that Gonzalez’s

On December 10, 2014, in preparation for the Mr. Simon’s

deposition, Gonzalez provided Martinrea with a CD containing the entirety of Mr. Simon’s work

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papers. Martinrea requests that Mr. Simon’s entire damages report be stricken on the grounds
that it relies on documents Gonzalez failed to timely produce. Further, Martinrea asserts that Mr.
Simon’s report fails to connect the assumptions and proposed opinions contained in it to any
documents produced by Gonzalez.
III. LAW & ANALYSIS
A.

Standard of Review
Pursuant to Rule 26 of the Federal Rules of Civil Procedure, if a party wishes to use a

witness who will present expert testimony, the party must disclose the identity of the witness.
See Fed. R. Civ. P. 26(a)(2)(A). The disclosure of the witness “must be accompanied by a
written report—prepared and signed by the witness—if the witness is one retained or specially
employed to provide expert testimony in the case or one whose duties as the party's employee
regularly involve giving expert testimony.” See Fed. R. Civ. P. 26(a)(2)(B).
Rule 26 puts forth six minimum requirements for what must be contained in the written
reports disclosed by expert witness. Three are relevant to the present Motions. A report must
contain:
(i)

a complete statement of all opinions the witness will express and the basis
and reasons for them;

(ii)

the facts or data considered by the witness in forming them; [and]

(iii)

any exhibits that will be used to summarize or support them[.]

Fed. R. Civ. P. 26 (a)(2)(B)(i)-(iii). In 2010, Rule 26(a)(2)(B)(ii) was “amended to provide that
disclosure include all ‘facts or data considered by the witness in forming’ the opinions to be
offered, rather than the ‘data or other information’ disclosure prescribed in 1993.” 2010
Advisory Committee Notes to Fed. R. Civ. P. 26, Subdivision (a)(2)(B).

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The amendment was “intended to alter the outcome in cases that [] relied on the 1993
formulation in requiring disclosure of all attorney-expert communications and draft reports.” Id.
With respect to experts, specifically, the comments to Rule 26 explain:
The refocus of disclosure on “facts or data” is meant to limit disclosure to
material of a factual nature by excluding theories or mental impressions of
counsel. At the same time, the intention is that “facts or data” be interpreted
broadly to require disclosure of any material considered by the expert, from
whatever source, that contains factual ingredients. The disclosure obligation
extends to any facts or data “considered” by the expert in forming the opinions to
be expressed, not only those relied upon by the expert.
Id. Accordingly, per the 2010 amendment to Rule 26, the disclosure obligation for experts is
interpreted broadly, requiring, not only the material relied upon, but also any material considered
by the expert in producing the report to be disclosed.
Additionally, Rule 26 puts forth deadlines for the disclosure of expert reports. Rule 26
requires expert disclosures “at the times and in the sequence that the court orders.” Fed. R. Civ.
P. 26(a)(2)(D). “Absent a stipulation or a court order” regarding expert disclosures, which is the
case here, “the disclosures must be made at least 90 days before the date set for trial or for the
case to be ready for trial[.]” Fed. R. Civ. P. 26 (a)(2)(D)(i). If parties wish to supplement expert
disclosures, the parties must supplement the disclosures when required under Rule 26(e). See
Fed. R. Civ. P. 26(a)(2)(E).
Generally, pursuant to Rule 26(e), a party who has made a disclosure under Rule 26(a)
must supplement its disclosure “in a timely manner if the party learns that in some material
respect the disclosure [under subdivision (a)] . . . is incomplete or incorrect, and if the additional
or corrective information has not otherwise been made known to the other parties during the
discovery process or in writing[.]” Fed. R. Civ. P. 26(e)(1)(A) (emphasis added).

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With respect to an expert from whom a report must be disclosed pursuant to Rule
26(a)(2)(B), however, there is an additional duty to supplement disclosures. This duty “to
supplement extends both to information included in the report and to information given during
the expert's deposition.” Fed. R. Civ. P. 26(e)(2). “Any additions or changes to this information
must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.” Id.
The comments to Rule 26 explain that “[s]upplementations need not be made as each new
item of information is learned but should be made at appropriate intervals during the discovery
period, and with special promptness as the trial date approaches.” 2010 Advisory Committee
Notes to Fed. R. Civ. P. 26, Subdivision (e). “If a party fails to provide information or identify a
witness as required by Rule 26(a) or (e),” Rule 37 provides that “the party is not allowed to use
that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the
failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1); see also Bessemer &
Lake Erie R.R. Co. v. Seaway Marine Transp., 596 F.3d 357, 396 (6th Cir. 2010).
B.

Legal Analysis
As recognized by both Parties, the key to supplementation is that it must be timely or else

a party may lose the ability to use information pursuant to Rule 37(c). See Dkt. No. 124 at 13-14
(citing Fed. R. Civ. P. 37(c)(1), and citing SPX Corp. v. Bartec USA, LLC, 574 F. Supp. 2d 748,
755-756 (E.D. Mich. 2008), for the proposition that “information produced 6-8 weeks before the
close of discovery should be excluded where the defendant had the information in its possession
for a year but waited until the day before Rule 30(b)(6) deposition of defendant to provide
opposing counsel with it”); see also Dkt. No. 126 at 16 (same).
Both Parties also recognize that “[c]ase law suggests that in the absence of a showing by
the proponent that the withholding of evidence form timely disclosure was ‘harmless’ or

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substantially justified,’ its exclusion from trial is ‘automatic and mandatory.’” See Dkt. No. 124
at 14 (citing Saint Gobain Autover USA, Inc. v. Xinyi Glass N. Am., Inc., 666 F. Supp. 2d 820,
826 (N.D. Ohio 2009), which quotes Dickenson v. Cardiac & Thoracic Surgery of E. Tenn.,
P.C., 388 F.3d 976, 983 (6th Cir. 2004)) (emphasis added); see also Dkt. No. 126 at 16 (same).
In making its decision, the Court acknowledges that the Rule 37 sanction “is mandatory
unless there is a reasonable explanation of why Rule 26 was not complied with or the mistake
was harmless.’” Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transport, 596 F.3d 357, 370
(6th Cir. 2010) (quoting Vance ex rel Hammons v. United States, 182 F.3d 920 (6th Cir. 1999)).
The burden is on the potentially sanctioned party to prove the failure was harmless and avoid
automatic sanctions. See Everlight Electronics, Co. v. Nichia Corp., No. 12-CV-11758, 2014 WL
3925276, at *5 (E.D. Mich. Aug. 12, 2014) (citing R.C. Olmstead, Inc. v. CU Interface, LLC,
606 F.3d 262, 271 (6th Cir. 2010)); see also El Camino Res., Ltd. v. Huntington Nat. Bank, No.
1:07-CV-598, 2009 WL 1228680, at *2 (W.D. Mich. Apr. 30, 2009) (citing Roberts ex rel.
Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003)).
Nevertheless, the Court notes that “despite the mandatory language of the rule, the
appellate courts continue to insist that [exclusion pursuant to Rule 37(c)(1)] falls within the
sound discretion of the trial court.” El Camino Res., Ltd., 2009 WL 1228680, at *2 (citing
Roberts ex rel. Johnson, 325 F.3d at 782); accord Design Strategy, Inc. v. Davis, 469 F.3d 284,
297 (2d Cir. 2006) (stating that preclusion remains discretionary, even where nondisclosing party
has not met its burden to show that violation was justified or harmless); see also Pride v. BIC
Corp., 218 F.3d 566, 578 (6th Cir. 2000) (“[Trial] courts have broad discretion to exclude
untimely disclosed expert-witness testimony.”); McCarthy v. Option One Mortgage Corp., 362
F.3d 1008, 1012 (7th Cir. 2004) (“[trial] courts enjoy broad discretion in controlling

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discovery.”); S. States Rack & Fixture, Inc. v. Sherwin–Williams Co., 318 F.3d 592, 597 (4th Cir.
2003) (stating trial courts have “broad discretion to determine whether a nondisclosure of
evidence is substantially justified or harmless for purposes of a Rule 37(c)(1) exclusion
analysis”); Laplace–Bayard v. Batlle, 295 F.3d 157, 162 (1st Cir. 2002) (“[Trial] courts have
broad discretion in meting out Rule 37(c) sanctions for Rule 26 violations.”); Jacobsen v.
Deseret Book Co., 287 F.3d 936, 953 (10th Cir. 2002) (“The determination of whether a Rule
26(a) violation is justified or harmless is entrusted to the broad discretion of the [trial] court.”).
In determining whether nondisclosure is harmless, courts look at a number of factors, but
the principal factor is whether the opponent will be prejudiced or surprised. See, e.g., El Camino
Res., Ltd., 2009 WL 1228680, at *2 (citing David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th
Cir. 2003)). The Advisory Committee Comments note that “[l]imiting the automatic sanction to
violations without substantial justification,’ coupled with the exception for violations that are
‘harmless,’ is needed to avoid unduly harsh penalties in a variety of situations[.]” Fed. R. Civ.
P. 37 Advisory Committee Notes, 1993 Amends. (emphasis added).

In using its broad

discretion, this Court finds that the harsh penalty of excluding expert reports is not warranted,
and that the Parties have met their burden of showing that their failure to timely supplement their
respective expert reports was harmless.
1. Martinrea’s November 21, 2014 disclosure was harmless. The documents from the
disclosure will not be barred, and the Court will not strike Mr. Robinson’s report.
As previously discussed, the expert reports in this case were due on November 26, 2014.
On November 21, 2014, Martinrea supplemented its discovery responses via email by producing
332 pages of financial documentation in support of its counterclaim. See Dkt. No. 124-8 at 2.
According to Martinrea, the documents delivered on November 21 consisted of “supplemental
document production” that was being made “pursuant to Fed. R. Civ. P. 26(e)(2).” Id. at 3. The

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documents delivered included the “bates labeled M0010265 through M0010597.” Id. On
November 25, 2014, Martinrea provided Gonzalez with its expert report from Mr. Robinson. See
Dkt. No. 125.
Martinrea maintains that Gonzalez never served any requests specifically asking
Martinrea to identify its damages and only made a catch-all discovery request. See Dkt. No. 134
at 6-8. Furthermore, Martinrea downplays the importance of the documents provided in the
supplemental disclosure, arguing that the documents are merely the Collective Bargaining
Agreement and the Plant Operations Schedule. Id. at 7-8. According to Martinrea, the data in
these documents is harmless, “is not disputable, is not controversial, and is not the type of data
about which Gonzalez could attempt to conduct some elaborate fact discovery.” Id. at 10. Given
the content of the material provided by Martinrea, and the Court’s broad discretion in
interpreting this matter, the Court finds that the disclosure was harmless and the harsh penalty of
barring the documents and striking portions of Mr. Robinson’s report is unwarranted.
2. Gonzalez’s December 10, 2014 disclosure of the Doreen Mayhew Workpapers was
harmless, and the court will not strike portions of Mr. Simon’s report.
With respect to Mr. Simon’s report, it appears Gonzalez did timely provide the source
documents relied upon by Mr. Simon. See Dkt. No. 132 at 17; Dkt. No. 131 at 4. Thus, the crux
of the Parties disagreement lies in the disclosure of Mr. Simon’s “work papers,” which Martinrea
argues should have been attached to Mr. Simon’s expert report.
Gonzalez contends that disclosing Mr. Simon’s work papers “is not standard practice or
reasonable, as Mr. Simon’s work papers contain the voluminous documents that Gonzalez
produced in discovery and identified as his foundational damages documents.” Dkt. No. 131-8.
Nonetheless, Gonzalez did inform Martinrea that these documents would be available at Mr.
Simon’s deposition, and that Gonzalez would produce the work papers in advance of the

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deposition to quell any unfounded concerns of Martinrea. See id. The work papers were, in fact,
disclosed on December 10, 2014. Dkt. No. 131-10. Because these papers were disclosed a week
prior to Martinrea’s deposition of Mr. Simon a week later, and because Martinrea had enough
information to conduct an in-depth 10 hour deposition of Mr. Simon, the Court finds that the
disclosure was harmless and striking Mr. Simon’s report is unwarranted.
3. Even though the Court finds that the disclosures were harmless, the Court notes
that both Parties disclosures were untimely. Consequently, the Court will amend the
Scheduling Order to quell concerns regarding prejudice moving forward.
While Martinrea contends that Gonzalez has mislead the Court, and that Gonzalez is not
actually prejudiced, the Court notes that Martinrea’s justification for its own supplemental
disclosure on November 21, 2014 was barely sufficient. Even though Martinrea argues that its
disclosure was harmless, the information provided in Martinrea’s disclosure—Bates labeled
M0010265 through M0010597—is referenced throughout Mr. Robinson’s report. See Dkt. No.
125 at 23 n.82, 25 n.84, 23 n.87-89, 28, 29, 35, 94, 115, 121. “Supplementations need not be
made as each new item of information is learned but should be made at appropriate intervals
during the discovery period, and with special promptness as the trial date approaches.” 2010
Advisory Committee Notes to Fed. R. Civ. P. 26, Subdivision (e). By highlighting the fact that
Martinrea waited to supplement its expert disclosure three days prior to the deadline for expert
reports, Gonzalez makes a persuasive point that it may be prejudiced before trial.
Similarly, Martinrea makes a persuasive point that it may be prejudiced by Gonzalez’s
failure to produce Mr. Simon’s work papers. While Gonzalez feels that the disclosure of work
papers is not standard practice, the Court finds that the December 10, 2014 disclosure of the
work papers was problematic. As previously mentioned, Rule 26 was “amended to provide that
disclosure include all ‘facts or data considered by the witness in forming’ the opinions to be
offered, rather than the ‘data or other information’ disclosure prescribed in 1993.” 2010
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Advisory Committee Notes to Fed. R. Civ. P. 26, Subdivision (a)(2)(B). “The disclosure
obligation extends to any facts or data ‘considered’ by the expert in forming the opinions to be
expressed, not only those relied upon by the expert.” Id.
Mr. Simon references the “Doreen Mayhew Workpapers” throughout his expert report.
See Dkt. No. 130 at 19, 22, 26-27, 30, 32, 32 n.27, 41-43. Per the 2010 amendment to Rule 26,
the disclosure obligation for experts is to be interpreted broadly, requiring, not only the material
relied upon, but also any material considered by the expert in producing the report to be
disclosed. 2010 Advisory Committee Notes to Fed. R. Civ. P. 26, Subdivision (a)(2)(B). Here, it
appears Mr. Simon not only considered the Doreen Mayhew Workpapers, but also relied upon
them in creating his expert report. See Dkt. No. 146 at 2-3 (stating that Mr. Simon testified at his
deposition that the materials provided on December 10, 2014 were part of, and integral
components to, the expert report).
If the work papers were integral components to the report, Mr. Simon had a duty to
provide information included in the report the day the report was completed. Though Gonzalez
was not required to make the disclosure as each new item of information was learned, it should
have been made during the discovery period as Gonzalez became aware that Mr. Simon was
relying on the work papers. See 2010 Advisory Committee Notes to Fed. R. Civ. P. 26,
Subdivision (e). Instead, Gonzalez spent its time disputing whether it was necessary to provide
such information.
Given the actions of the Parties, the Court strongly considered granting both Motions to
strike portions of the expert reports. However, the Court concludes that excluding both expert
reports weeks before trial would be a harsh sanction in this situation. The Court notes that
“district courts have ‘broad discretion to enforce their scheduling orders[.]’” Magna Donnelly

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Corp. v. 3M Co., No. 07-CV-10688, 2012 WL 882799, at *4 (E.D. Mich. Feb. 24, 2012) report
and recommendation adopted, No. 07-10688, 2012 WL 858628 (E.D. Mich. Mar. 14, 2012)
(citing Estes v. King's Daughters Med. Ctr., 59 F. App'x 749, 752–53 (6th Cir. 2003)).
This being the case, the Court will amend the Scheduling Order to avoid excluding the
expert reports, and quell any concerns about prejudice to the Parties. Pursuant to the Amended
Scheduling Order the Parties will have additional time to review the documents related to the
expert reports and take depositions of Mr. Robinson and Mr. Simon.
IV. CONCLUSION
In conclusion, the Court notes that the recent disputes could have easily been worked out
between the Parties. The accusations in the briefing indicate that the Parties are bordering on
conduct that runs afoul of this District’s Civility Principles. The Court admonishes all counsel to
review this District’s Civility Principles and to conduct themselves accordingly moving forward.
See

Eastern

District

of

Michigan

Civility

Principles,

Preamble,

available

at

https://www.mied.uscourts.gov/PDFFIles/08-AO-009.pdf (“Conduct that may be characterized
as uncivil, abrasive, abusive, hostile or obstructive impedes the fundamental goal of resolving
disputes rationally, peacefully and efficiently.”).
For the reasons discussed, the Court DENIES the Motions of both Parties.
Furthermore, IT IS HEREBY ORDERED that the following dates will govern this case:
YOU WILL RECEIVE NO FURTHER NOTICE OF THESE DATES1
Final Date to Depose Mark Robinson and Larry Simon:

April 7, 2015

Motions in Limine due:

May 5, 2015

Final Pretrial Order due:

June 16, 2015

Final Pretrial Conference:

June 30, 2015 at 10:00 a.m.

1

If the Parties have any concerns with these dates moving forward, the Parties may submit a Stipulated Order
recommending different dates for the Court’s consideration.

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Trial Date:

August 11, 2015 at 9:00 a.m.

Jury Trial
Estimated Length of Trial: 4-5 weeks

I.

TIME. Computation of time under this order and under any notice of any scheduling
order or notice in this case shall be in conformity and accordance with Federal Rule of
Civil Procedure 6(a).

II.

FINAL PRETRIAL CONFERENCE AND FINAL PRETRIAL ORDER. The Final
Pretrial Order must be submitted through the document utilities function of the CM/ECF
on or before the date set by this order. All witnesses must be listed in the Final Pretrial
Order. Witnesses may only be added to the Final Pretrial Order by stipulation of the
parties and leave of court. Counsel shall follow the procedure outlined below to prepare
for the final pretrial conference and the Final Pretrial Order:
A.

Counsel for all parties are directed to confer in person (face to face) at their
earliest convenience in order to (1) reach any possible stipulations narrowing the
issues of law and fact, (2) deal with non-stipulated issues in the manner stated in
this paragraph, and (3) exchange documents that will be offered in evidence at
trial. It shall be the duty of counsel for plaintiff to initiate that meeting and the
duty of opposing counsel to respond to plaintiff’s counsel and to offer full
cooperation and assistance. If, after reasonable effort, any party cannot obtain the
cooperation of opposing counsel, it shall be his or her duty to communicate with
the court. The Final Pretrial Order shall fulfill the parties’ disclosure obligations
under Federal Rule of Civil Procedure 26(a)(3), unless the Judge orders
otherwise. All objections specified in Rule 26(a)(3) shall be made in this order.
Counsel for plaintiff shall prepare a draft Final Pretrial Order and submit it to
opposing counsel, after which all counsel will jointly submit the proposed order.
The Final Pretrial Order should provide for the signature of the court, which,
when signed, will become an Order of the court. The proposed Final Pretrial
Order shall strictly comply with the requirements of Local Rule 16.2.
* Pursuant to Local Rule 16.2(b)(9), any objection based on foundation or
authenticity will be deemed waived if not raised before trial.

B.

The following persons shall personally attend the final pretrial conference:
1) Trial counsel for each party;
2) All parties who are natural persons;
3) A representative on behalf of any other party;
4) A representative of any insurance carrier that has undertaken the prosecution or
defense of the case and has contractually reserved to itself the ability to settle the
action.
Representatives must possess full authority to engage in settlement discussions
and to agree upon a full and final settlement. “Personal attendance” by each party
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is not satisfied by (1) trial counsel professing to have full authority on behalf of
the client or (2) a party being available by telephone.
III.

At least ONE WEEK prior to the beginning of trial, counsel shall furnish to the court the
following:
A.

In jury cases, any requests for VOIR DIRE, proposed JOINT JURY
INSTRUCTIONS and the VERDICT FORM. The parties shall file with the
court a single set of proposed, stipulated jury instructions and a single, proposed
verdict form. The instructions are to be typewritten and double spaced and shall
contain references to authority (e.g., “Devitt and Blackmar, Section 11.08").
Additionally, each party shall separately file any additional proposed instructions
to which any other party objects. The parties must make a concerted, good faith
effort to narrow the areas of dispute and to discuss each instruction with a view to
reaching an agreement as to an acceptable form.

B.

In a non-jury case, proposed FINDINGS OF FACT and CONCLUSIONS OF
LAW.

C.

A statement of claims or defenses, no longer than two pages, suitable to be read to
the jury during opening instructions.

V.

EXHIBITS. Counsel are required to mark all proposed exhibits in advance of trial.
Plaintiff’s exhibits shall use numbers and Defendant’s exhibits shall use letters. A
consecutive number and lettering system should be used by each party. The parties are
required to exchange marked exhibits three days prior to the start of trial. Counsel are
also required to maintain a record of all admitted exhibits during trial. See attached
exhibit form. Counsel for each party must keep custody of that party’s admitted exhibits
during trial. A party who objects to this provision must file a written objection prior to
jury selection.

VI.

JUDGE’S COPIES. A paper copy of electronically filed motions, briefs, attachments,
responses, replies, proposed Final Pretrial Order, and proposed Joint Jury Instructions
(with disc) MUST be delivered directly to the Judge’s chambers and labeled Judge’s
copy.

VII.

The court will not allow counsel not admitted in the Eastern District to practice upon a
special motion. All inquiries regarding admission to this district must be directed to the
Clerk’s office at [phone].

VIII.

LOCAL COUNSEL. An attorney admitted to practice in the Eastern District of
Michigan who appears as attorney of record and is not an active member of the State Bar
of Michigan must specify local counsel with an office in this district. Local counsel must
enter an appearance and otherwise comply with Local Rule 83.20(f).
SO ORDERED.

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Dated: January 26, 2015
/s/Gershwin A Drain
Hon. Gershwin A. Drain
United States District Court Judge

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