- Sample Final Pretrial Order (PDF)
- Sample Final Pretrial Order (WORD)
- Scheduling Order (PDF)
- Scheduling Order (WORD)
|Plaintiff's and Defendant's Expert Disclosures (under both Fed. R. Civ. P. 26(a)(2)(B) and 26(a)(2)(C); Joinder of Parties; Amendment of Pleadings||29 weeks before trial|
|Rebuttal Expert Disclosures||25 weeks before trial|
|Final Witness List||23 weeks before trial|
|Discovery||19 weeks before trial|
|Dispositive Motions||15 weeks before trial|
|Daubert Motions||15 weeks before trial|
|Pretrial Disclosures||Six weeks before trial|
|Motions in Limine||Five weeks before trial|
|Proposed Jury Instructions or Findings of Fact and Conclusions of Law||Three weeks before trial|
|Final Pretrial Conference||Monday two weeks before trial|
The Court generally defers to reasonable input of counsel at the scheduling conference as to the length of the discovery period, the dates of particular deadlines, and the month for a trial date. As a rule of thumb, discovery in a typical civil case should take eight months. Reasonable extensions that do not affect the trial date or the Court's ability to consider a dispositive motion are more likely to be granted.
C. Rule 16 of the Federal Rules of Civil Procedure
The Court typically schedules an in-person case-management conference at the beginning of each case. The Court expects counsel to be prepared to engage in a substantive conversation concerning the case, including the substance of the parties’ legal theories, the facts in dispute, anticipated evidence, and any and all issues contemplated in Rule 16(a)(1) - (5) and 16(c)(2)(A) - (P).
D. Discovery Following Dispositive Motions
Absent an order to the contrary, the filing of a dispositive motion does not stay discovery. Motions to stay discovery pending the resolution of a dispositive motion will be granted only in unusual circumstances and on a case-by-case basis.
E. Referral to the Magistrate Judge
The Court typically refers Social Security and ERISA claims to a Magistrate Judge for a recommendation on dispositive motions.
F. Scheduling Orders
Scheduling orders are entered by the magistrate judges. The Court adheres to plea and motions deadlines unless modified upon motion addressed to the Court.
G. Plea Agreements
The Court will consider all plea agreements presented to it, including those under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. The Court will not accept a plea agreement under Rule 11(c)(1)(A) or (B) if the agreement waives the defendant's rights to file an appeal or a petition pursuant to 28 U.S.C. 2255. The Court, however, will consider such waivers if included in a plea agreement under Rule 11(c)(1)(C).
A. Discovery Disputes
In civil cases, counsel for all parties are required by the Federal Rules of Civil Procedure and the Local Rules to attempt to resolve discovery disputes before bringing them to the Court's attention. The Court does not require counsel to contact a magistrate judge to obtain leave to file discovery motions.
B. Expert Witnesses
Counsel should not contact expert witnesses engaged by opposing counsel or parties.
C. Confidentiality Agreements
The parties may enter a confidentiality agreement that binds the parties. With regard to filing documents under seal with the court, however, counsel must adhere to the requirements of Local Rule 26.2 and the Court’s order regarding sealing confidential information that it typically enters at the beginning of the case.
D. Brady Material
Unless a defendant has waived the right to Brady material, the Government shall deem all such material to have been requested at the time of the defendant's first appearance with counsel or the time of waiver of the right to counsel. In addition to its disclosure obligations under Brady, the Government is expected to disclose all evidence and information that tends to negate the guilt of the accused or mitigates the offense as soon as reasonably practicable. Failure to disclose such information before a defendant’s guilty plea may violate ethical standards.
E. Jencks Act Statements
In order to promote the efficient administration of justice, the Court encourages the Government to produce, prior to trial, all statements it has reason to believe will be subject to disclosure under the Jencks Act at trial.
Any party seeking a subpoena requiring a witness to produce books, papers, documents, data or other objects before trial pursuant to Federal Rule of Criminal Procedure 17(c)(1) must file a motion requesting that the Court issue the subpoena. If the Court grants the motion, the Court will designate the time and place for the witness to produce the designated items. At the time of production, the Court will determine whether the parties will be permitted to inspect the designated items. Motions for subpoenas under Rule 17(c)(1) should be filed as soon as reasonably practicable and well in advance of the defendant’s plea deadline and trial date.
5. MOTIONS AND BRIEFS
Generally, for all matters not implicating the Court's subject-matter jurisdiction, each party will be permitted to file only one dispositive motion at each stage of litigation (i.e., one motion to dismiss and one motion for summary judgment per party). In addition to these limitations, the Court may order the parties to submit additional briefs or permit the parties to submit additional motions pertaining to certain threshold issues.
Additionally, each party is entitled to file only one supporting memorandum per motion and only one response to each opposing party's motion. Whenever practicable, the responding party is encouraged to file a consolidated response to all pending motions. In the event that there are multiple responding parties, those parties may forgo their individual responses in favor of filing a joint response that complies with Local Rule 7.1.
If the Court schedules a hearing, it will give the parties an opportunity to present evidence, as appropriate. Failure to arrange to present evidence is not a basis to continue the hearing or to schedule another hearing.
C. Oral Arguments on Motions
The Court will schedule oral argument on a motion if it believes such argument will be useful. If a party believes oral argument on a motion would be particularly useful, the party may file a separate motion and a supporting memorandum of no more than five pages that explains why oral argument should be scheduled. Additionally, the Court believes it is crucial to provide substantive speaking opportunities to young lawyers, and that the benefits of doing so will accrue to young lawyers, to clients, and to the profession generally. Accordingly, the Court will consider, among other things, whether the requested oral argument presents a speaking opportunity for a young lawyer in determining whether to schedule oral argument on a motion.
D. Pages in Excess of the Limitations Set Forth in Local Rule 7.1(b)
Requests for five additional pages in opening briefs and answering briefs will typically be granted in sufficiently complex cases, unless the Court deems additional length unhelpful. Such requests will rarely be granted for reply briefs. A motion to exceed the page limitation should be made, if allowed by the briefing schedule, at least ten days before the brief is due for filing.
E. Reply Briefs
As provided by Local Rule 7.1(c), "[u]nless otherwise stated by the Court, reply briefs are not necessary and are not required by the Court." All parties are expected to adhere to the terms of Local Rule 7.1(c), and, in the event a reply brief becomes necessary, that reply shall not exceed ten pages. If a party files a reply brief exceeding ten pages, the Court will only consider the first ten pages.
F. Motions for Extensions of Time
Motions for extensions of time to file all other motions or responses must be made well in advance of the deadline the moving party seeks to extend. The moving party must demonstrate why the requested extension is necessary and will bear the burden of specifically defining the bases for and extent of its request. The fact and length of an extension is in the Court's discretion.
G. Facts Supporting Motions for Summary Judgment
The Court does not require statements of undisputed facts and will not consider them unless they are jointly submitted. The parties must, however, comply faithfully with the standards set forth in Rule 56 of the Federal Rules of Civil Procedure with regard to factual citations to the record.
H. Joint Appendix for Summary Judgment
Prior to a motion for summary judgment, the parties shall meet, confer, and develop a single, joint appendix of all exhibits. The joint appendix shall be filed by the movant no later than the initial motion for summary judgment. All pages of the joint appendix shall be consecutively numbered and referenced in the motions and briefs by such page numbers. The joint appendix shall include a table of contents. The parties shall make every effort to include all necessary exhibits in the initial joint appendix. The parties should not, however, prospectively over-designate exhibits or deposition testimony for inclusion in the joint appendix. For example, parties should only include those pages of a deposition transcript that are cited to by one of the parties. Should it become necessary for the non-moving party to submit additional exhibits, it may do so at the time it files its opposition brief. Any addendum to the initial joint appendix shall be consecutively numbered, following the page number at which the joint appendix ended, and shall include a table of contents. The Court will not consider material not included in the joint appendix and addendum.
I. Motions for Emergency Relief
Parties must comply with Rule 65 of the Federal Rules of Civil Procedure. The Court will ask the requesting party to notify the opposing party as the Court sets an emergency hearing unless the Court determines notice should not be required. Parties requesting an emergency hearing should be prepared to appear when the Court sets a hearing, often the same day the petition is filed. The Court will consider allowing expedited discovery. The Court welcomes briefing before a hearing on such relief.
A. Settlement and Use of Magistrate Judges
In all cases, the parties are urged to try to settle, using mediation or other alternative dispute resolution, if necessary, in civil matters. Magistrate judges may be involved on a case-by-case basis at the Court's discretion.
B. Notifying Court of Settlement
Parties should immediately inform the Court once they reach settlement. Following settlement, the parties should promptly submit a stipulation of dismissal. The parties must submit a stipulation of dismissal or an agreed order of dismissal before the trial date unless otherwise directed by the Court. E.D. Tenn. L.R. 68.1.
A. Trial Brief
The parties should file trial briefs on anticipated evidentiary and legal issues at least three business days before the Final Pretrial Conference.
B. Motions in Limine
The Court prefers to rule on a motion in limine prior to trial, but, often, context available only at trial is necessary to determine the issues.
Conduct of Counsel at Trial
C. Voir Dire
Counsel will lead voir dire, subject to the Court's direction. The parties will first make for-cause challenges. After the Court rules on the for-cause challenges, the parties may exercise peremptory challenges. If, after the parties’ for-cause and preemptory challenges, additional jurors are called to participate in voir dire, the Court will seat them at the end of the jury box and does not allow back-striking of jurors who were previously seated.
D. Opening Statements
The Court will consider counsel's input regarding reasonable time limits for opening statements but rarely recognizes cause to allow more than thirty minutes per party. If a lawyer intends to use visual aids, video, or audio during an opening statement, he or she must share such materials with opposing counsel prior to trial to afford an opportunity for objections without causing a delay in the proceedings.
E. Location of Counsel Examining Witnesses
Counsel must examine witnesses from the lectern and are to stand if physically able.
F. Sidebar Conferences
When possible, counsel should endeavor to raise sensitive matters in conjunction with breaks during trial, when the jury is out of the courtroom. Counsel should confer with each other, anticipate these needs, and notify the courtroom deputy or the law clerk as the need to address an issue approaches in order to avoid surprising the Court with a request for a sidebar conference. If a matter must be raised immediately and counsel is unsure whether the matter should be addressed to the Court prior to disclosure to the jury, then sidebars are encouraged. If it appears to the Court during the sidebar that a lengthy conference is required, the jury will be excused.
G. Communication with Jurors after a Verdict
Regarding speaking with jurors, see Local Rule 48.1. Any communication allowed will take place in the courtroom immediately following trial.
Witnesses and Exhibits
Before trial, counsel should become familiar with Local Rule 43.3 regarding the presentation of evidence.
I. Recorded Testimony
The Court expects counsel to discuss in advance of trial accommodations necessary for offering recorded testimony and to reach agreement on the method to be used.
J. Pre-Marking and Admission of Documentary and Photographic Exhibits and Other Demonstrative Evidence
Exhibits should be pre-marked according to the exhibit list the parties prepare, in compliance with the scheduling order. The parties should provide three copies of the exhibit list to the courtroom deputy before the trial begins. Counsel should stipulate to the admission of as many exhibits as possible in order that the trial not be unduly prolonged.
K. Preference for the Moving of Exhibits into Evidence at Trial
Counsel should offer each exhibit for admission into evidence at the time it is authenticated and its admissibility has been established. The Court strongly discourages offering exhibits into evidence after a witness’s testimony is fully completed or at the end of the offering party’s proof.
L. Whether More than One Attorney May Examine a Witness
Only one attorney for a party may conduct examination and raise objections during the testimony of any given witness. If co-counsel who will not cross-examine a witness inadvertently announces an objection during direct examination, the mistake should be corrected immediately, and the attorney responsible for cross-examination should resume handling objections.
M. Examination of Witnesses Beyond Cross-Examination
The Court will typically allow re-direct examination and re-cross-examination if the testimony elicited is within the scope of the preceding examination and is otherwise admissible under the Federal Rules of Evidence. Further examination is rarely warranted.
N. Closing Statements
The Court will consider counsel's input regarding reasonable time limits for closing statements but rarely recognizes cause to allow more than thirty minutes per party. The Court will not tolerate vouching, testifying, ad hominem attacks, or other inappropriate tactics during closing argument. If a lawyer intends to use visual aids, video, or audio during a closing argument, and if such materials have not been received into evidence, the lawyer must share such materials with opposing counsel in time to afford an opportunity for objections without causing a delay in the proceedings.
O. Note-Taking by Jurors
Jurors are typically allowed to take notes.
P. Written Jury Instructions Provided to the Jury
The Court provides the jury a copy of the final instructions when the jury begins deliberation.
Q. Submission of Written Verdict Forms (in the Form of Interrogatories) to the Jury
The Court submits written verdict forms to jurors.
R. Whether the Jury May Take Exhibits into the Jury Room for Deliberation
Jurors may take exhibits into the jury room for deliberation except for firearms, controlled substances, and other items which could impair safety. All exhibits that can be put into electronic form must be in electronic form. The jurors will not receive physical copies of any exhibits which can exist in electronic form, but instead will view them on an electronic evidence display system in the jury room. The Court does not provide the jury copies of depositions presented in lieu of live testimony.
S. Jury Requests for Review of Testimony or Recorded Evidence
These are handled on a request-by-request basis.
T. Requirements as to Counsel's Location during Jury Deliberations
If counsel leaves the courthouse, he or she is responsible for providing the courtroom deputy his or her mobile telephone number and is responsible for answering the clerk's call. Counsel should be in a position to report to the courthouse within five minutes of notification by mobile telephone.
U. Polling of Jurors
When requested, the courtroom deputy will poll the jurors.