Gerberich v. Avery

Filing 12

INITIAL SCHEDULING ORDER by Magistrate Judge Stephan M. Vidmar. A telephonic Rule 16 Scheduling Conference is set for October 16, 2017, at 9:30 a.m. Counsel shall call Judge Vidmar's Meet Me Line at 505-348-2357 to connect to the proceedings. Unless otherwise notified by the Clerk or the Court a notice of consent or non-consent for this case to proceed before the trial Magistrate Judge should be submitted by each party no later than August 29, 2017. (sg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WILLIAM GERBERICH,
Plaintiff,
v.

No. 17-cv-0712 KRS/SMV

CARLTON L. AVERY,
Defendants.
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.”
Plaintiff must file an amended complaint properly alleging Plaintiff’s citizenship to
establish diversity jurisdiction no later than August 18, 2017.
The parties, appearing through counsel or pro se, must “meet and confer” no later than
September 5, 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

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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 September 19, 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 October 16, 2017,
at 9:30 a.m. Parties shall call Judge Vidmar’s “Meet Me” line at 505-348-2357 to be connected
to the proceedings.1 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),2 and the use of scientific
evidence and whether it is anticipated that a Daubert3 hearing will be needed. We will also
discuss settlement prospects, 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.
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The “Meet Me” line accepts no more than five incoming telephone lines at a time. Counsel shall coordinate with
each other prior to the conference to ensure that no more than five incoming telephone lines are utilized.
2

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.”).

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Pre-trial practice in this case shall be in accordance with the foregoing.
IT IS THEREFORE ORDERED that the deadlines shall be as follows:
Amended Complaint by:

August 18, 2017

Meet and Confer by:

September 5, 2017

JSR filed by:

September 19, 2017

Initial Disclosures due within 21 days of the
meet-and-confer session, but in no event later than:

September 26, 2017

Telephonic Rule 16 Initial Scheduling Conference:

October 16, 2017,
at 9:30 a.m.

______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge

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See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590–92 (1993).

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