Ferro v. Curry County Detention Center et al

Filing 77

AMENDED INITIAL SCHEDULING ORDER: by Magistrate Judge Stephan M. Vidmar. Amended Joint Status Report is due by February 8, 2019. A telephonic Rule 16 Scheduling Conference is set for February 12, 2019, at 9:30 a.m. Counsel must call Judge Vidmar's AT&T Conference Line at [phone] (access code: 4382538) to connect to the proceedings. (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ARTHUR FERRO,
Plaintiff,
v.

No. 18-cv-0223 GJF/SMV

BOARD OF COUNTY COMMISSIONERS
OF CURRY COUNTY and KENNETH LACEY,1
Defendants.
AMENDED 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
January 29, 2019, to formulate an amended 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) completing initial disclosures
as required by Rule 26(a)(1), if they have not already been completed; (4) preserving discoverable
information; and, (5) the formulation of an amended provisional discovery plan. Fed. R. Civ.
P. 26(a)(1), (f). In formulating their amended provisional discovery plan, counsel and pro se
parties should meaningfully discuss: (i) the subjects on which discovery may be needed, when
1

Defendant Lacey was dismissed with prejudice on January 10, 2019. [Doc. 72].

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.
Initial disclosures under Rule 26(a)(1) should be complete. See [Doc. 12]. The parties
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 an amended 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 February 8, 2019.
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 February 12, 2019,
at 9:30 a.m.

The parties must call the Court’s AT&T Conference Line, [phone]

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(access code: 4382538), to connect to the proceedings. 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.
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:

January 29, 2019

Amended JSR filed by:

February 8, 2019

Telephonic Rule 16 Initial Scheduling Conference:

February 12, 2019,
at 9:30 a.m.

______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge

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.”).
3

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

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