Duncan v. Nine Energy Service, LLC

Filing 9

INITIAL SCHEDULING ORDER by Magistrate Judge Stephan M. Vidmar. Joint Status Report is due by May 12, 2021. A telephonic Rule 16 Scheduling Conference is set for June 2, 2021, at 9:30 a.m. MDT. Counsel must call Judge Vidmar's AT&T Conference Line at [phone] (access code: 4382538) 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 April 21, 2021. (rcf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
TRACY DUNCAN,
Plaintiff,
v.

No. 21-cv-0228 GBW/SMV

NINE ENERGY SERVICE, LLC,
Defendant.
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
April 28, 2021, 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 May 12, 2021.
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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 June 2, 2021,
at 9:30 a.m. MDT. The parties must call the Court’s AT&T Conference Line, [phone]
(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);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, 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.

1

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.”).
2
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590–92 (1993).

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IT IS THEREFORE ORDERED that the deadlines shall be as follows:
Meet and Confer by:

April 28, 2021

JSR filed by:

May 12, 2021

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

May 19, 2021

Telephonic Rule 16 Initial Scheduling Conference:

June 2, 2021,
at 9:30 a.m. MDT

______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge

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