Farmers Edge Inc. et al v. Farmobile, LLC et al

Filing 166

FOURTH AMENDED ORDER SETTING FINAL SCHEDULE FOR PROGRESSION OF CASE: A telephone conference was held in this matter on July 27, 2017 to discuss progression matters. Pursuant to the discussion held during the conference, depositions due December 22 , 2017; Pretrial Conference set for 4/25/2018 at 10:00 AM in Chambers before Magistrate Judge Susan M. Bazis; Jury Trial set for 5/21/2018 at 08:30 AM in Courtroom 3, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza, Omaha, NE before Senior Judge Joseph F. Bataillon. Ordered by Magistrate Judge Susan M. Bazis. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
FARMERS EDGE INC., FARMERS EDGE
(US) INC., and FARMERS EDGE (US) LLC,
8:16CV191
Plaintiffs,
FOURTH AMENDED ORDER
SETTING FINAL SCHEDULE FOR
PROGRESSION OF CASE

vs.
FARMOBILE, LLC, JASON G. TATGE,
HEATH GARRETT GERLOCK, and
RANDALL THOMAS NUSS,
Defendants.

A telephone conference was held in this matter on July 27, 2017 to discuss progression
matters. Pursuant to the discussion held during the conference,
IT IS ORDERED that the provisions of the Court's earlier, initial progression order and
subsequent amended progression order remain in effect, and in addition to those provisions, the
following shall apply:
1.
Motions for Summary Judgment. Motions for summary judgment shall be filed
not later than January 5, 2018. See NECivR 56.1 and 7.0.1.
2.
Disclosure of Expert Witnesses.1 Each plaintiff, counter-claimant, third-party
claimant, and cross-claimant shall, as soon as practicable but not later than October 6, 2017,
for all experts except experts opining regarding the parties’ software code content
and architecture (hereinafter “software experts”), whose deadline will be October 23,
2017, serve all opposing parties 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. Each defendant, counter-defendant, t h i r d p a r t y d e f e n d a n t , and cross-defendant shall serve its statement of the expert witnesses it
expects to call to testify pursuant to Rule 702, 703 or 705, Fed. Rules of Evidence, pursuant to
Fed. R. Civ. P. 26(a)(2) as soon thereafter as practicable, but not later than November 3, 2017,
with the exception of software experts, whose deadline will be November 20, 2017. If
necessary to refute the disclosed opinions of an expert witness of an opponent, a plaintiff,
counter-claimant, third-party claimant, or cross-claimant may disclose additional expert
witnesses not later than December 1, 2017, with the exception of software experts,
whose deadline will be December 18, 2017, 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

1

A treating physician must be identified pursuant to Fed. R. Civ. P. 26(a)(2)(A), but a treating physician
is not deemed to be "retained or specially employed to provide expert testimony in a case" so as to require a written
report under Fed. R. Civ. P. 26(a)(2)(B).

witness available for deposition prior to the date set for completion of depositions.
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.
3.

Discovery Deadlines.
a. Deposition Deadline. All depositions, whether or not they are intended to be
used at trial, shall be completed by December 22, 2017, with the limited
exception that this deadline may be extended by agreement of the
parties: (a) solely to permit time to take the depositions of a corporate
representative of OSB AG Munich and any of its employees in Germany
as the parties must comply with Hague Convention processes and
German laws with the result that additional time may be required to
complete these depositions; and (b) to take depositions of rebuttal
software experts.
b. Written Discovery Deadline. All interrogatories, requests for admission and
requests for production or inspection, whether or not they are intended to be
used at trial, shall be completed by October 27, 2017. Counsel may stipulate
to extensions of time to respond to discovery requests in accordance with
Fed. R. Civ. P. 29, but such extensions shall not extend any of the dates in
this order; any request to extend the deadlines of this order shall be
sought by motion.
c. Discovery Motions. Discovery motions shall be filed not later than
September 26, 2017 as to matters which are then ripe for decision; discovery
matters arising after that date may be the subject of motions until the
deposition deadline. Counsel are reminded of the provisions of NECivR
7.01(i). Motions to compel shall not be filed without first contacting the
chambers of the undersigned magistrate judge to set a conference to discuss
the parties’ dispute.

4.
Confidentiality Designations And Errata Sheets. The deadline for designating
deposition transcripts and exhibits as CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’
EYES ONLY under the Stipulated Protective Order (Filing No. 77) shall be August 10, 2017
for any deposition transcripts as to which the deadline for those designations would have been
during the period from July 6, 2017 through July 27, 2017, and the deadline for errata sheets for
those depositions shall be August 28, 2017.
5.
Pretrial Disclosures. Pursuant to Fed. R. Civ. P. 26(a)(3), each party shall serve
opposing counsel and file a redacted version as applicable with the following information
regarding the evidence it may present at trial other than solely for impeachment purposes as soon
as practicable but not later than the date specified:

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a. Nonexpert Witnesses - On or before April 2, 2018: The name, address and
telephone number2 of each witness, separately identifying those whom the
party expects to present and those whom the party may call if the need arises.
b. Deposition Testimony and Discovery: The designation of discovery
testimony and discovery responses intended to be utilized at trial is not
required at this time.
c. Trial Exhibits - On or before April 2, 2018: A list of all exhibits it expects
to offer by providing a numbered listing and permitting examination of such
exhibits, designating on the list those exhibits it may offer only if the need
arises.
d. Waiver of Objections. Any and all objections to the use of the witnesses,
deposition testimony, discovery responses, or exhibits disclosed pursuant to
the above subparagraphs, including any objection pursuant to Fed. R. Civ. P.
32(a) that a deponent is available to testify at the trial, shall be made a part of
the pretrial order. Failure to list objections (except those under Fed. R. Evid.
402 and 403) is a waiver of such objections, unless excused by the court for
good cause shown.
6.
Motions in Limine. Motions in limine challenging the admissibility of expert
testimony at trial under Fed. R. Evid. 702, see Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137
(1999), and Daubert v. Merrell-Dow Pharmaceuticals, 509 U.S. 579 (1993), shall be filed by
January 5, 2018, and accompanied by a request for a hearing if necessary. Failure to timely
move for a hearing may constitute waiver of the request for a hearing.
7.

Any other motions in limine shall be filed on or before April 18, 2018.

8.
The Final Pretrial Conference with the assigned magistrate judge is set for
April 25, 2018, at 10:00 a.m. in chambers, 111 South 18th Plaza, Suite 2271, Roman L. Hruska
United States Courthouse, Omaha, Nebraska. 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 NECivR 16.2.3 By the time of the pretrial conference, full preparation for
trial shall have been made so that trial may begin immediately thereafter. The pretrial
conference will include a discussion of settlement, and counsel shall be prepared through
investigation, discovery and communication with clients and insurers, if any, to discuss fully the

2

In accordance with the E-Government Act, counsel shall, on witness lists, exhibits, and other
disclosures and/or documents filed with the court, redact Social Security numbers, home addresses,
telephone numbers, and other personally identifying information of witnesses, but shall serve an
unredacted version on opposing parties. See NECivR 5.0.3.
3

All personal information should be redacted from the public version of the order and/or
attachments filed with the Clerk. See NECivR 5.0.3.

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subject of settlement, including realistic expectations about liability, obstacles to agreement,
offers made, and offers which can be made at the conference. Counsel shall be prepared to make
additional offers or proposals for settlement in behalf of their clients at the pretrial conference,
and counsel shall be prepared to make or opine on recommendations for further negotiations and
conferences.
9.
A fourteen (14) day jury trial is set to commence on May 21, 2018, in Omaha,
Nebraska, before the Honorable Joseph F. Bataillon, Senior United States District Judge.
Unless otherwise ordered, jury selection shall be at the commencement of trial.
DATED this 16th day of August, 2017.
BY THE COURT:
/s Susan M. Bazis
United States Magistrate Judge

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