Maheu et al v. XTO Energy Inc. et al
ORDER: Scheduling Conference set for 10/17/2017 at 10:00 AM by telephone before Magistrate Judge Charles S. Miller, Jr. By Magistrate Judge Charles S. Miller, Jr. (BG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Richard Chadwick Maheau, et. al.,
ORDER FOR RULE 26(f) PLANNING
MEETING AND RULE 16(b)
AND ORDER RE RESOLUTION
OF DISCOVERY DISPUTES
XTO Energy, Inc., et. al.,
Case No.: 1:17-cv-102
IT IS ORDERED:
RULE 26(f) MEETING & RULE 16(b) SCHEDULING CONFERENCE
The court shall hold a Rule 16(b) initial pretrial scheduling/discovery conference on October
17, 2017, at 10:00 AM. The scheduling conference will held by telephone conference call to be
initiated by the court.
In preparation for the conference, counsel are directed to confer in accordance with Rule
26(f) of the Federal Rules of Civil Procedure. Counsel shall submit to the magistrate judge a joint
proposed scheduling/discovery plan that reflects the Rule 26(f) discussions and includes at least
those items listed in form Scheduling/Discovery Plan posted on the court's website
(www.ndd.uscourts.gov/forms/). Counsel shall confer, complete and prepare the form, obtain the
appropriate signatures, and e-mail the document in "WordPerfect" or in "Word" format to ndd_JMiller@ndd.uscourts.gov NO LATER THAN TWO BUSINESS DAYS PRIOR TO THE
CONFERENCE. Any disagreements among counsel shall be addressed at the scheduling
During the Rule 26(f) meeting, counsel shall discuss the nature and basis of their claims and
defenses, the possibilities for a prompt settlement or resolution of the case, and the scope and type
of discovery, including electronic discovery. Counsel shall also make or arrange for the disclosures
required by Rule 26(a)(1), and develop their joint proposed scheduling/discovery plan. These are
only the minimum requirements for the meeting. Counsel are encouraged to have a comprehensive
discussion and are required to approach the meeting cooperatively and in good faith. The discussion
of claims and defenses shall be a substantive, meaningful discussion. In addressing settlement or
early resolution of the case, counsel are required to explore the feasibility of ADR not only between
themselves but with their clients as well. If the parties elect not to participate in an early ADR
effort, the court may nonetheless require a settlement conference shortly before trial.
In addressing the Rule 26(a)(1) disclosures, counsel shall discuss the appropriate timing,
form, scope or requirement of the initial disclosures, keeping in mind that Rule 26(a)(1)
contemplates the disclosures will be made by the date of the Rule 16(b) initial scheduling conference
and will include at least the categories of information listed in the rule. Rule 26 affords the parties
flexibility in the scope, form and timing of disclosures under both Rule 26(a)(1) (initial disclosures)
and Rule 26(a)(2) (expert witness disclosures), but the parties’ agreement on disclosures is subject
to approval by the court. In their discussion of disclosures, counsel shall address issues of relevance
in detail, with each party identifying what it needs and why. The discussion shall include as well
the sequence and timing of follow-up discovery, including whether that discovery should be
conducted informally or formally and whether it should be conducted in phases to prepare for filing
of particular motions or for settlement discussions.
In addressing electronic discovery, counsel shall discuss what electronic sources each party
will search, difficulty of retrieval, preservation of records, the form of production (electronic or
hard-copy, format of production, inclusion of meta-data, etc.), cost of production and which party
will bear the cost, privilege/waiver issues, and any other electronic discovery issues present in the
case. Before engaging in the Rule 26 discussion, counsel should determine who is most familiar
with the client's computer system, what electronic records the client maintains, how the client's
electronic records are stored, the difficulty/ease of retrieving various records, the existence and
terms of the client's document retention/destruction policy, and whether the client has placed a
"litigation hold" preventing destruction of potentially relevant records.
The deadlines in the scheduling/discovery plan shall be mutually agreeable, with a view to
achieving resolution of the case with a minimum of expense and delay. At the Rule 16(b)
conference, the court will review the plan with counsel. The date for the dispositive motion deadline
shall not be later than October 15, 2018, unless good cause is shown at the scheduling conference
for a later date. Counsel are informed that the dispositive motion deadline is used in assigning the
trial date, and the court must allow adequate time for briefing and ruling prior to the final pretrial
conference and trial dates.
RESOLUTION OF DISCOVERY DISPUTES
It is hereby ORDERED that the following steps be undertaken by all parties prior to the
filing of any discovery motions:
The parties are strongly encouraged to informally resolve all discovery issues and
disputes without the necessity of Court intervention. In that regard, the parties are
first required to confer and fully comply with Rule 37(a)(1) of the Federal Rules of
Civil Procedure and Local Rule 37.1 by undertaking a sincere, good faith effort to
try to resolve all differences without Court action or intervention;
In the event that reasonable, good faith efforts have been made by all parties to
confer and attempt to resolve any differences, without success, the parties are then
required to schedule a telephonic conference with the Magistrate Judge in an effort
to try to resolve the discovery dispute prior to the filing of any motions. The parties
shall exhaust the first two steps of the process before any motions, briefs,
memorandums of law, exhibits, deposition transcripts, or any other discovery
materials are filed with the Court.
If the dispute still cannot be resolved following a telephonic conference with the
Magistrate Judge, then the Court (Magistrate Judge) will entertain a motion to
compel discovery, motion for sanctions, motion for protective order, or other
discovery motions. In connection with the filing of any such motions, the moving
party shall first fully comply with all requirements of Rule 37(a)(1) of the Federal
Rules of Civil Procedure and Local Rule 37.1 and shall submit the appropriate
certifications to the Court as required by those rules.
The Court will refuse to hear any discovery motion unless the parties have made a
sincere, good faith effort to resolve the dispute and all of the above-identified steps
have been strictly complied with. A failure to fully comply with all of the
prerequisite steps may result in a denial of any motion with prejudice and may result
in an award of costs and reasonable attorney’s fees.
Dated this 18th day of September, 2017.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr.
United States Magistrate Judge
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