Humane Society of the United States et al v. Kienzle et al
INITIAL SCHEDULING ORDER by Magistrate Judge Stephan M. Vidmar. Joint Status Report is due by March 23, 2017. A telephonic Rule 16 Scheduling Conference is set for April 13, 2017, at 9:30 a.m. To connect to the proceedings, counsel shall call Judge Vidmar's Teleconference Line at (215) 446-3656, using code 4382538. (sg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
HUMANE SOCIETY OF THE UNITED STATES,
ANIMAL PROTECTION OF NEW MEXICO,
JEAN OSSORIO, and PETER OSSORIO,
No. 16-cv-0724 LAM/SMV
PAUL M. KIENZLE, III; WILLIAM MONTOYA;
ROBERT ESPINOZA, SR.; RALPH RAMOS;
BOB RICKLEFS; ELIZABETH ATKINSON RYAN;
THOMAS SALOPEK; and ALEXANDRA
INITIAL SCHEDULING ORDER
This case is assigned to me for scheduling, case management, discovery, and all
non-dispositive motions. Both the Federal Rules of Civil Procedure, as amended, as well as the
Local Rules of the Court apply to this lawsuit. Civility and professionalism are required of
counsel. Counsel must read and comply with “A Lawyer’s Creed of Professionalism of the State
Bar of New Mexico.”
The parties, appearing through counsel or pro se, must “meet and confer” no later than
March 9, 2017, to formulate a Provisional Discovery Plan. Fed R. Civ. P. 26(f). At the
meet-and-confer session, the parties must discuss: (1) the nature and bases of their claims and
defenses; (2) the possibility of a prompt resolution or settlement; (3) making or arranging for
complete initial disclosures as required by Rule 26(a)(1); (4) preserving discoverable
information; and, (5) the formulation of a provisional discovery plan. Fed. R. Civ. P. 26(a)(1),
(f). In formulating a provisional discovery plan, counsel and pro se parties should meaningfully
discuss: (i) the subjects on which discovery may be needed, when discovery should be
completed, and whether discovery should be conducted in phases or limited to particular issues;
(ii) the disclosure, discovery, and preservation of electronically stored information, including the
form(s) in which it should be produced; (iii) any claims of privilege or confidentiality of
materials, including exploring whether the parties can agree on a procedure to assert these claims
and whether they will ask the Court to include any agreement in an order; (iv) whether any
changes should be sought to the limitations on discovery imposed by the Federal Rules of Civil
Procedure or the Local Civil Rules; and (v) the facts and the law governing the case to which the
parties are willing to stipulate.
Pursuant to Rule 26(d)(2), the parties may deliver discovery requests under Rule 34 prior
to the meet-and-confer date, however those requests are not considered to have been served until
the first meet-and-confer session.
Initial disclosures under Rule 26(a)(1) must be made within 21 days of the
meet-and-confer session, unless a different time is set by stipulation or Court order. The parties
are advised to strictly follow the letter and spirit of Rule 26(a)(1) in preparing their initial
disclosures. Initial disclosures are intended to accelerate the exchange of core information about
the case and eliminate the need for formal discovery at the early stages of litigation. See Fed. R.
Civ. P. 26(a)(1) 1993 advisory committee’s notes. The parties must meet these objectives in
making their initial disclosures and should be prepared to explain how they have fully complied
with their obligations under Rule 26(a)(1) at the Rule 16 initial scheduling conference.
The parties will cooperate in preparing a Joint Status Report and Provisional Discovery
Plan (“JSR”), following the sample JSR available at the Court’s web site. The parties are to fill
in the blanks for proposed dates, bearing in mind that the time allowed for discovery is generally
120 to 180 days from the date of the Rule 16 initial scheduling conference. Plaintiff (or
Defendant in removed cases) is responsible for filing the JSR by March 23, 2017.
The Court will determine actual case management deadlines after considering the parties’
requests. Parties may not modify case management deadlines on their own. Good cause must be
shown and the Court’s express and written approval obtained for any modification of the dates in
the Scheduling Order.
A Rule 16 initial scheduling conference will be held by telephone on April 13, 2017,
at 9:30 a.m.
To connect to the proceedings, the parties shall call Judge Vidmar’s
Teleconference Line at (215) 446-3656, using code 4382538. At the conference, counsel and
any pro se parties must be prepared to discuss their JSR, all claims and defenses, initial
disclosures, discovery requests and scheduling, issues relating to the disclosure, discovery, and
preservation of electronically stored information, the timing of expert disclosures and reports
under Rule 26(a)(2),1 and the use of scientific evidence and whether it is anticipated that a
Daubert2 hearing will be needed. We will also discuss settlement prospects and, alternative
dispute resolution possibilities, and consideration of consent pursuant to 28 U.S.C. § 636(c).
Lead counsel and parties appearing pro se must participate unless excused by the Court. Parties
represented by counsel need not attend.
In preparing the JSR, counsel should be familiar with the Rule 26 requirements concerning disclosure of expert
testimony for witnesses who do not provide a written report. See Fed. R. Civ. P. 26(a)(2)(C). Summary disclosures
are, under certain circumstances, required of treating physicians. Farris v. Intel Corp., 493 F. Supp. 2d 1174, 1180
(D.N.M. 2007) (Treating physicians who do not submit Rule 26 expert reports may only testify “based on . . .
personal knowledge and observations obtained during [the] course of care and treatment[.]”); Blodgett v. United
States, No. 2:06-CV-00565 DAK, 2008 WL 1944011, at *5 (D. Utah May 1, 2008) (“[T]reating physicians not
disclosed as experts are limited to testimony based on personal knowledge and may not testify beyond their
treatment of a patient.”).
Pre-trial practice in this case shall be in accordance with the foregoing.
IT IS THEREFORE ORDERED that the deadlines shall be as follows:
Meet and Confer by:
March 9, 2017
JSR filed by:
March 23, 2017
Initial Disclosures due within 21 days of the
meet-and-confer session, but in no event later than:
March 30, 2017
Telephonic Rule 16 Initial Scheduling Conference:
April 13, 2017, at 9:30 a.m.
STEPHAN M. VIDMAR
United States Magistrate Judge
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590–92 (1993).
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