Save Our Sound OBX, Inc., et al v. North Carolina Department of Transportation, et al

Filing 63

ORDER AMENDING ORDER ON JOINT MOTION FOR BRIEFING SCHEDULE 41 . Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by District Judge Louise Wood Flanagan on 8/29/2017. (Collins, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
NO. 2:17-CV-4-FL

SAVE OUR SOUND, OBX, INC.,
THOMAS ASCHMONEIT, RICHARD
AYELLA, DAVID HADLEY, MARK
HAINES, JER MEHTA, and GLENN
STEVENS
Plaintiffs,
v.
NORTH CAROLINA DEPARTMENT OF
TRANSPORTATION, JAMES H.
TROGDON, III, in his official capacity as
Secretary of the North Carolina
Department of Transportation, FEDERAL
HIGHWAY ADMINISTRATION, and
JOHN F. SULLIVAN, III, in his official
capacity as Division Administrator for the
Federal Highway Administration,
Defendants,
and
DEFENDERS OF WILDLIFE and
NATIONAL WILDLIFE REFUGE
ASSOCIATION,1
Intervenor-Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

ORDER AMENDING
ORDER ON JOINT MOTION
FOR BRIEFING SCHEDULE

This matter is before the court, sua sponte, to revisit decision on the parties’ joint motion for
briefing schedule, (DE 41), wherein the parties moved to allow defendants Federal Highway

1

Where defendant-intervenors Defenders of Wildlife and National Wildlife Refuge
Association’s motion to intervene (DE 19) was granted, the caption is amended so to reflect.

Administration and John F. Sullivan, III (collectively “the federal defendants”), to lodge the
administrative record in the form of “electronic media in lieu of a paper copy,” which motion was
allowed. (DE 43). Pursuant to the Eastern District of North Carolina’s Electronic Case Filing
Administrative Policies and Procedures Manual, the only exception for filing electronically is to file
in paper form. As the administrative record is part of the court record, and the court record must be
available to the public, where the public terminals in the clerk’s office are not configured to accept
electronic media, it will not be possible for counsel to file a USB drive2 or other electronic medium
in lieu of filing the documents electronically through CM/ECF or in paper form. Also in light of
plaintiffs’ recent motion to compel, the court’s March 23, 2017, order granting joint motion for
briefing schedule, (DE 43), is amended as follows:
1.

Where on August 28, 2017, plaintiffs moved to compel completion of the
administrative record seeking inclusion of “all non-privileged documents regarding
settlement negotiations between Defendants and Defendant-Intervenors in Defenders
of Wildlife v. North Carolina Department of Transportation, No. 2:11-CV-35
(E.D.N.C.), to which Defendant Federal Highway Administration (“FHWA”) was
a party or that were in FHWA’s possession prior to April 30, 2015” (“disputed
materials”), (DE 60), as set forth above, the disputed materials must be filed in
CM/ECF.

2.

The parties shall file a joint status report within seven days hereof including their
proposal for filing disputed materials in CM/ECF, as needed, to resolve the pending

2

On July 7, 2017, the federal defendants placed notice on the record that a USB drive
containing the administrative record was lodged with the clerk, and a courtesy copy provided to
chambers. (DE 59).
2

motion to compel.
a.

If the disputed materials are not voluminous, the parties shall consider utility
of electronically filing the disputed materials directly on this docket, as an
attachment to the joint status report.

b.

If the disputed material are voluminous, the parties shall include in the report
their proposal for filing on the docket disputed materials in electronic form.3

3.

Plaintiffs shall, at the time of filing of the joint status report, also tender to the court
duplicate electronic copies of the disputed materials including a searchable index
with hyperlinks to searchable documents in PDF format, if efficiencies reasonably
will accrue to the court in having the disputed materials accessible also through this
means. This and any questions the parties may have concerning these procedures
may be discussed more particularly at pending status conference.

4.

At said Rule 16 telephonic status conference set for September 1, 2017, at 11:00
a.m., the court also may address 1) deadline for lodging the settled administrative
record in CM/ECF; 2) the federal defendants’ response time pertaining to motion to
compel filed August 28, 2017, where their response pending determination of filing

3

For an example of the docketing procedure for voluminous administrative records, see the
court’s docket in Defenders of Wildlife v. North Carolina Department of Transportation, No. 2:11CV-35-FL (E.D.N.C.), with reference also to the corresponding miscellaneous case file housing the
case’s administrative record. If the parties deem efficiencies will accrue if the administrative record
is segregated into several miscellaneous files (for example, a file particular to documents contained
in USB drives provided to the court, (DE 59), now bearing bates stamps “AR” and another file
particular to documents bearing bates stamps “RD”)), for ease of reference or some other reason,
they shall offer their particular filing proposal in the report. For an additional example of the court’s
case management procedures for actions involving records generated pursuant to the Administrative
Procedure Act, see Sierra Club v. North Carolina Department of Transportation, No. 4:16-CV-300FL (E.D.N.C.) (DE 35).
3

issues herein discussed now is stayed; and, 3) where the record is contested upon that
motion to compel, a revised schedule for summary judgment briefing.
SO ORDERED, this the 29th day of August, 2017.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

4