Oriental Trading Company, Inc. et al v. Yagoozon, Inc.

Filing 53

2nd AMENDED FINAL PROGRESSION ORDER- This matter is before the court on the parties' Stipulated Motion to Extend Progression Order 52 . ( Jury Trial set for 11/2/2015 at 09:00 AM in Courtroom 5, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza, Omaha, NE before Senior Judge Lyle E. Strom. and Pretrial Conference set for 10/20/2015 at 11:00 AM by WebEx before Magistrate Judge Cheryl R. Zwart). Ordered by Senior Judge Lyle E. Strom. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ORIENTAL TRADING COMPANY, INC., a
Delaware corporation and FUN
EXPRESS, LLC, a Nebraska limited
liability corporation,
Plaintiff,

8:13CV351
2ND AMENDED FINAL PROGRESSION
ORDER

vs.
YAGOOZON, INC., a Rhode Island
corporation,
Defendant.
This matter is before the court on the parties’ Stipulated Motion to Extend
Progression Order [52].

IT IS ORDERED:
1.

Mandatory Disclosures. The mandatory disclosures described in Fed.

R. Civ. P. 26(a)(1) shall be completed by March 14, 2014. The parties shall file any
objections to jurisdiction and venue on or before April 14, 2014. Any response to the
objections shall be filed on or before May 16, 2014. If no objections have been filed,
then the matter will have been deemed waived to this court’s jurisdiction and venue.
2.

Discovery Deadline. All discovery, whether or not intended to be used at

trial, shall be completed by August 3, 2015. All interrogatories, requests for admission
and requests for production or inspection, whether or not they are intended to be used
at trial, shall be served sufficiently early to allow rule time response before that date.
Counsel may stipulate to extensions of time to respond to discovery requests in
accordance with Fed. R. Civ. P. 29, as amended, but such extensions shall not extend
any of the dates in this order; any requests for extensions of any of the deadlines herein
shall be made by appropriate motion and order.
3.

Limits on Discovery. Each party is limited to serving twenty-five (25)

interrogatories, including subparts, on any other party. Each party is limited to taking
twelve (12) depositions in this case, excluding expert depositions, without leave of

court.

Depositions shall be limited by Rule 30(d)(2) except the deposition of corporate

designation under 30(b)(6).
4.

Disclosure of Expert Witnesses.1

On or before June 2, 2015, the

plaintiff shall identify all expert witnesses and shall serve the defendant

with the

statement required by Fed. R. Civ. P. 26(a)(2) regarding each expert witness it expects
to call to testify at trial pursuant to the provisions of Rule 702, 703 or 705, Fed. Rules of
Evidence. On or before July 3, 2015, the defendant shall identify all expert witnesses
and shall serve the plaintiff with the statement required by Fed. R. Civ. P. 26(a)(2)
regarding each expert witness it expects to call to testify at trial pursuant to the
provisions of Rules 702, 703, or 705, Federal Rules of Evidence. If necessary to refute
the disclosed opinions of an expert witness of an opponent, a party may disclose
additional expert witnesses not later than July 17, 2015, provided that the disclosing
party then provides all of the information described in Fed. R. Civ. P. Rule 26(a)(2) and
makes the expert witness available for deposition prior to the date set for completion of
deposition.

Supplementation of these disclosures, if originally made prior to these

deadlines, shall be made on these deadlines as to any information for which
supplementation is addressed in Fed. R. Civ. P. 26(e). The testimony of the expert at
trial shall be limited to the information disclosed in accordance with this paragraph.
5.

Pretrial Disclosures: Pursuant to Fed. R. Civ. P. 26(a)(3), each party

shall provide to all other parties the following information regarding the evidence that it
may present at trial other than solely for impeachment purposes as soon as practicable
but not later than the date specified:
A.

Nonexpert Witnesses - 30 days prior to deposition deadline: The

name, address and telephone number of each witness, separately identifying those
whom the party expects to present and those whom the party may call if the need
arises.

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Generally, a treating physician shall not be deemed to be “retained or
specially employed to provide expert testimony in a case” within the meaning
of Fed. R. Civ. P. 26(a)(2)(B), but a treating physician must be identified
pursuant to Fed. R. Civ. P. 26(a)(2)(A).

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B.

Deposition Testimony and Discovery - 5 days before final pretrial

conference: 1) The portions of each deposition, designated by page and line, that it
intends to offer and 2) each discovery response of another party it intends to offer.
Such designations and any objections thereto shall also be included in the final pretrial
conference order. See NELR 16.2.
C.

Trial Exhibits - 5 working days before final pretrial conference: A list

of all exhibits it expects to offer by providing a numbered listing and permitting
examination of such exhibits. The parties shall also designate on the list those exhibits
it may offer only if the need arises.
D.

Waiver of Objections: Any objections to the use of witnesses, deposition

designations, discovery responses, or exhibits shall be listed in the pretrial order.
Failure to list objections (except those under Fed. R. Evid. 402 and 403) shall be
deemed waived, unless excused by the court for good cause shown.
E.

Filing of Disclosures: The filing of pretrial disclosures required by Fed.

R. Civ. P. 26(a)(3) shall be deemed filed at the time of the filing of the Order on Final
Pretrial Conference in this matter.
6.

Expert Witness Testimony. Any motion challenging the qualifications of

an expert or the admissibility of testimony of an expert witness under Rule 702, Fed.
Rules of Evidence shall be filed not later than August 10, 2015, in the absence of which
any objection based upon said rule shall be deemed waived. See Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137 (1999); Daubert v. Merrell Dow Pharmaceuticals,
509 U.S. 579 (1993).
7.

Rule 104 Hearings. Any pretrial motion which will require an evidentiary

hearing pursuant to Fed. R. Evid. 104 shall be filed not later than five (5) working days
following the deadline for the completion of depositions.
In addition, if the requested hearing involves a Daubert - Kumho question
regarding an expert, the expert’s disclosure under Fed. R. Civ. P. 26(2)(2)(A)&(B) must
be submitted to Judge Strom’s chambers when the motion is filed.
Absence of a request for a hearing may be deemed waiver of the right to a
hearing. A brief in support and all material regarding the requested hearing must be
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delivered to Judge Strom’s chambers when the Rule 104 hearing motion is filed.
Opposing parties are given ten (10) days thereafter to deliver briefs in opposition.
8.

All motions for summary judgment shall be filed on or before August 3,

2015. See NELR 56.1 and 7.1.
9.

The Final Pretrial Conference is set for October 20, 2015 at 11:00 a.m.

before Magistrate Cheryl R. Zwart and will be done by WebEx. An email will be sent to
counsel of record with the instructions and codes for participating in the pretrial
conference by WebEx. The final pretrial conference shall be attended by lead counsel
for represented parties. Counsel shall complete prior to the pretrial conference, all
items as directed in NELR 16.2. By the time of the pretrial conference, full preparation
for trial shall have been made so that trial may begin at any time during the session
indicated below.
10.

All other provisions of parties’ joint planning conference report not

addressed in this order shall be deemed submitted and adopted by the Court.
11.

Trial is set to commence at 9:00 a.m. on November 2, 2015 in Omaha,

Nebraska, before the Honorable Lyle E. Strom and a jury.
12.

Motions to Alter Dates. All requests for changes of date settings shall be

directed to the undersigned judge by appropriate motion.
Dated this 28th day of January, 2015.
BY THE COURT:

/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court

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