BNSF Railway Company v. Strata Corporation
Filing
10
ORDER: Final Pretrial Conference set for 5/5/2015 at 1:30 PM by telephone before Magistrate Judge Charles S. Miller, Jr. By Magistrate Judge Charles S. Miller, Jr. (BG) (Main Document 10 replaced on 12/6/2013 to correct date of conference in Order. Regenerated NEF.) (rh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
NORTHWESTERN DIVISION
BNSF Railway Company,
)
)
ORDER FOR FINAL PRETRIAL
Plaintiff,
)
CONFERENCE
)
vs.
)
)
Strata Corporation,
)
)
Case No. 4:13-cv-119
Defendant.
)
______________________________________________________________________________
IT IS ORDERED:
A final pretrial conference will be held before the magistrate judge on May 5, 2015, at 1:30
p.m. The conference will be conducted via telephone conference call to be initiated by the court.
PRIOR TO PRETRIAL CONFERENCE
Prior to the date of the final pretrial conference, counsel shall confer in person or by telephone
for the purpose of examining and marking exhibits as detailed below. Within two (2) days of the Final
Pretrial Conference, counsel shall e-mail the following documents to ndd_J-Miller@ndd.uscourts.gov
in "Wordperfect" or "Word" format:
(1)
An exhibit list for each party;
(2)
A witness list for each party; and
(3)
Expert Reports.
Exhibits: Counsel are directed to complete the physical marking and numbering of all papers
and objects that are expected to be introduced as exhibits. The exhibits are to be marked with an
exhibit sticker. The parties must number the exhibits consecutively, with each party using separate
numbers with sufficient gaps for unanticipated or rebuttal exhibits (e.g., the plaintiff using numbers
1
P1-P20 and the defendant using numbers D50-D70). The exhibits shall be listed in the form of the
Exhibit List posted on the court's website (http://www.ndd.uscourts.gov/forms/). Counsel will retain
the exhibits in their possession but shall submit the list with the Final Pretrial Statement as a separate
document. Counsel must disclose and list all exhibits relating to an issue on which their client has the
burden of proof or the burden of going forward with the evidence. Each listed exhibit shall be
designated as "will offer" or "may offer." Documents to be used solely for rebuttal purposes need not
be numbered or listed until identified at trial.
Failure to list an exhibit required by this order to be listed or to disclose such exhibit to adverse
counsel will result, except upon a showing of good cause, in the nonadmissibility of the exhibit into
evidence at the trial. Each party shall make its exhibits available for inspection by other parties prior
to the pretrial conference.
For each listed exhibit, counsel shall determine whether they will stipulate to admissibility for
all purposes or at least waive foundation for the opposing party's exhibits. The court strongly
encourages such agreement and expects counsel to waive foundation unless there is a strong, specific
objection to a particular exhibit. Any stipulation to admissibility or waiver of foundation shall be
indicated in the appropriate column on the exhibit list.
Witness Lists: Each party shall prepare a witness list, which shall include the following
information: (1) the name of the witness; (2) whether the witness "will be called" or "may be called;";
(3) whether the testimony will be by written deposition, video deposition, or video conference if the
witness will not be appearing in person; and (4) whether or not the witness is an expert.
Expert Reports: Copies of expert reports prepared in accordance with Rule 26(a)(2)(B) by
those experts the parties anticipate calling as witnesses shall be e-mailed to ndd_JMiller@ndd.uscourts.gov as a separate document.
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PRIOR TO TRIAL
Trial Memorandum: Counsel for the respective parties shall file a trial memorandum with
proof of service upon opposing counsel with the clerk, for presentment to the court, at least seven
working days before the commencement of trial. The trial memorandum shall contain: A general
statement of the case, citation of the authority upon which the party relies on unresolved legal issues,
a general statement of the evidence to be offered, and a statement of any evidentiary or procedural
problem expected to arise, with citations of authority.
Depositions: At least fourteen (14) days before trial the offering party shall file and serve a
designation of those portions of any depositions which will be presented at trial, and the manner in
which each of those depositions was recorded. A transcript of the pertinent portions of any deposition
not stenographically recorded shall accompany the designation. The other parties shall have until
seven (7) days before trial to designate additional portions of any deposition appearing on the offering
party's list.
Any party who objects to admissibility of deposition testimony to be offered shall have until
four (4) days prior to trial to file a list of objections it intends to preserve. All other objections will be
deemed waived. Counsel shall then confer prior to commencement of the trial to edit the depositions.
As to any deposition which may be used only if the need arises (other than solely for
impeachment purposes), the offering party shall notify the court and other parties at least forty-eight
(48) hours in advance that it will be offering the deposition at trial, and identify the portions to be
offered. The other parties shall then have twenty-four (24) hours to identify additional portions and
to preserve any objections to admissibility of the deposition testimony. Objections not specifically
preserved will be deemed waived. Counsel shall then confer prior to the offering of the deposition to
edit the testimony.
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Jury Instructions: In jury cases, each party must serve and file requested jury instructions
and a proposed verdict form at least seven (7) days prior to the commencement of trial. Each party
must also submit the instructions to chambers via e-mail to ndd_J-Hovland@ndd.uscourts.gov or
provide chambers with copy of the proposed instructions on CD. A party may present additional
requests for instructions relating to issues arising during the trial at any time prior to argument.
All requests for instructions must be plainly marked with the number of the case and must
designate the party submitting the request. Each requested instruction must be numbered and written
on a separate page, together with a citation of authorities supporting the proposition of law stated in
the instruction. A party requesting an Eighth Circuit or North Dakota pattern instruction need only
designate the pattern jury instruction number and name, unless the pattern instruction is modified. If
the pattern instruction is modified, the entire instruction must be submitted and must be clearly
identified as modified.
Motions in Limine: Motions in limine shall be filed at least thirty (30) days prior to trial
unless otherwise instructed by the court.
Failure to Appear/Comply: Failure of counsel to appear at any scheduled final pretrial
conference, or otherwise to comply with the provisions of this order, may result in dismissal or default,
as may be appropriate.
Dated this 6th day of December, 2013.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr.
United States Magistrate Judge
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