Preview
Cause No. 09-17457-D
gu
0 Ju 157
BRAD BENTON IN THE DISTRICT COURT OF
vs. DALLAS COUNTY, TEXAS
RANDALL'S FOOD & DRUG, LP d/b/a
TOM THUMB FOOD STORES
§
§
§
§
§
§ 95th DISTRICT COURT
SCHEDULING AND LEVEL 3 DISCOVERY ORDER
In accordance with TEX, R. Civ, P. 166 and 190, the Court makes the following Scheduling
the Court’s 2 week docket
beginning
1. This case is set for NON-JURY trial on December 6, 2010, at 8:30 a.m.
and Level 3 Discovery Order:
Trial announcements must be made in accordance with Local Rule 3.02. If the case is not
reached as set, it may be carried to the next week.
The failure of a party seeking affirmative relief to announce or appear at the trial setting will
result in dismissal for want of prosecution. Failure of a defending party to announce or appear at the
trial setting may result in an appropriate default against that party.
A continuance of the trial setting will not alter any deadline in this Order or established by
the Texas Rules of Civil Procedure, unless otherwise provided by order.
Unless otherwise ordered herein or hereafter, discovery in this case will be controlled by the
provisions of TEX. R. Civ. P. 190.4 (Level 3).
2. Pretrial matters shall be completed in the following number of days in advance of the
trial setting:
a. to file amended pleadings asserting new causes of action or raising
new defenses 0.0.0.0... 00.0. eee eeeee 120 days
b. by a party seeking affirmative relief, to designate experts in response
to a request under TEX. R. Civ. P. 194.2(f) and to provide reports, if
any. of an expert within that party's control .......... 120 days
c. by a party opposing affirmative relicf, to designate experts in
response to a request under TEX. R. Civ. P. 194.2(f) and to provide
reports, if any, of an expert within that party’s control ... 90 days
Scheduling and Level 3 Discovery Order — Page 1d. to designate rebuttal experts in response to a request under TEX. R.
Civ. P. 194.2(f) and to provide reports, if any, of an expert within that
party’s control ..... 00.0... eee eee eee 75 days
e. to file dispositive motions, motions challenging expert qualifications,
and to designate responsible third parties ............. 60 days
f. to complete discovery, file other amended pleadings, and complete
Mediation 2. 45 days
The partics may by written agreement alter the deadlines set forth in this paragraph.
Amended pleadings responsive to timely filed pleadings under this schedule may be filed after the
deadline for amended pleadings if filed within ten (10) days after the pleading to which they respond.
Except by agreement of the parties, leave of court, or where expressly authorized by law or the Texas
Rules of Civil Procedure, no party may obtain discovery of information subject to disclosure under
Rule 194 by any other form of discovery.
If, at the time of an expert witness designation, a party fails to provide a report of an expert
witness under its control, that party shall make the expert witness available for deposition reasonably
promptly after the designation and, in the case of an expert designation under 2(b) and (c), above,
in such time as will allow the completion of that expert’s deposition within fifteen (15) days of the
designation, unless otherwise ordered or agreed by the parties.
3. Any objection to, or motion to exclude or limit, expert testimony must be set for
hearing at the time the objection or motion is filed, or the complaint is waived. Any motion to
compel discovery responses must be filed and a hearing sct thereon no later than seven days after the
close of discovery, or such motion is waived, except for the sanction of exclusion under Rule 193.6.
4. Each side may have 50 hours of depositions and cach party may have 50
interrogatories, subject to the conditions of Rule 190.3(b)(2) and (3).
5. No additional parties may be joined more than cight (8) months after the
commencement of this case except on motion for leave showing good cause. This paragraph does
not otherwise alter the requirements of Rule 38. The party joining an additional party shal! serve a
copy of this Order on the new party concurrently with the pleading joining that party.
6. Mediation will be conducted in accordance with the Standing Dallas County Civil
District Court Order Regarding Mediation, which is available from the Dallas County ADR
Coordinator. Rules for Mediation are enclosed herewith and shall be deemed a part of this Order.
All parties shall contact the mediator to arrange the mediation, and the fees of the mediator shall be
taxed as costs.
Scheduling and Level 3 Discovery Order — Page 2The mediator appointed in this case is: Burdin Mediations, (214) 528-1411. Within 30
days of the date of this Order, the parties may agree to substitute a mediator of their choosing,
provided that the appointed mediator and the Court are provided written notice of the substitution,
together with the name and contact information of the substituted mediator. Mediator substitution
beyond such time may only be made by motion, with good cause shown.
7. Fourteen (14) days before the trial setting, the parties shall exchange a list of
witnesses and exhibits (including demonstrative aids), designations of deposition testimony to be
offered in direct examination; motions in limine; and proposed submissions for the Court’s Charge,
if applicable. The parties shall exchange copies of any exhibits not previously produced in
discovery. Over-designation of witnesses and exhibits is strongly discouraged and may be
sanctioned. Except for records to be offered by way of business records affidavits, each exhibit
should be identified separately and not by category or group.
8. Ten (10) days before the trial setting, the parties shall exchange in writing their
objections to the opposing party’s proposed exhibits and deposition designations. At the same time
or before, the attorneys in charge for all parties shall meet in person and confer in a sincere cffort to
resolve any disputes relating to exhibits, deposition designations, proposed charge submissions in
jury cases, jury panel questionnaires, if any, and motions in limine, if any. The attomeys shal! also
attempt to enter into and formalize stipulations that will expedite the trial of the case.
9. By 4 p.m. on the Thursday before the trial setting, the parties shall file with the Court
a joint pre-trial submission containing the following: a statement of the parties’ contentions, any
stipulations of ]aw and fact, a listing of the witnesses and exhibits of each party, and an estimate of
the length of trial.
In the case of a jury trial, each party shall also separately file and tender to the Court its
designation of deposition testimony to be offered in direct examination, any proposed jury panel
questionnaire, if not agreed, its motion in limine, and its proposed charge or applicable part thereof.
The Court prefers that proposed charges or charge submissions be annotated and provided on CD
or flash drive.
The failure to file such materials may result in dismissal for want of prosecution or other
appropriate sanction, including the entry of an appropriate default.
10. The parties are admonished to conduct themselves and this litigation in adherence to
The Texas Lawyer's Creed-A Mandate for Professionalism. Among other locations, the TLC is
available at the Web site of the Texas Center for Legal Ethics & Professionalism.
11. Plaintiff/Plaintiff's counsel shall serve a copy of this Order on any defendant(s)
appearing after the date of this Order. .
Scheduling and Level 3 Discovery Order - Page 3IT IS SO ORDERED.
SIGNED: April 29, 2010
KEN MOLBERG
Judge, 95th District Court
ce: Counsel of Record/Pro Se Parties
Mediator Burdin Mediations
Scheduling and Level 3 Discovery Order — Page 4RULES FOR MEDIATION
1. Definition of Mediation. Mediation is a process under which an impartial person, the mediator, facilitates
communication between the parties to promote reconciliation, settlement or understanding among them. The mediator may suggest
ways of resolving the dispute, but may not impose his own judgment on the issues for that of the parties.
2. Conditions Precedent to Serving a Mediator. The mediator shall not serve as a mediator in any dispute in which he
has any financial or personal interest in the result of the mediation. Prior to accepting an appointment, the mediator shall disclose
any circumstances likely to create a presumption of bias or prevent a prompt meeting with the panics.
3. Authority of Mediator. The mediator docs not have the authority (o decide any issue for the parties, but will attempt
to facilitate the voluntary resolution of the dispule by the parties. The mediator is authorized to conduct joint and separate meetings
with the parties and to offer suggestions to assist the parties achieve settlement. If necessary, the mediator may also obtain expert
advice conceming technical aspects of the dispute, provided that the partics agree and assume the expenses of obtaining such advice,
arrangements for obtaining such advice shall be made by the mediator of the parties, as the mediator shall determine.
4, Parties Responsible for Negotiating Their Own Settlement. The parties understand that the mediator will not and
cannol impose a settlement in their case. The mediator, as an advocate for settlement, will use every effort to facilitate the
negotiations of the parties. The mediator does not warrant or represent that settiement will result from the mediation process.
5. Authority of Representatives. Party representatives must have authority to settle and all persons necessary to the
decision to settle shal! be present. The names and addresses of such persons shall be communicated in writing to all parties and the
mediator.
6. Time and Place of Me: jon. The mediator shall fix the time of cach mediation session. The mediation shall be held
at the office of mediator, or at any other convenient location agreeable to the mediator and the parties, as the mediator shall determine.
7. Identification of Matters in Dispute. Prior to the first scheduled mediation session, each party shall provide the
mediator and all attomeys of record with an information shect and request for mediation on the form provided by the mediator setting
forth its position with regard to the issues that need to be resolved. At or before the first session, the parties will be expected to
produc all information reasonably required for the mediator to understand the issues presented, ‘The mediator may require any party
10 supplement such information.
8. Privacy. Mediation sessions are private. The parties and their representatives may attend mediation sessions. Other
persons may attend only with the permission of the parties and with the consent of the mediator.
9. Confidentiality. Confidential information disclosed to a mediator by the parties or by witnesses in the course of the
mediation shail not be divulged by the mediator. Alt records, reports or other documents received by a mediator while serving in that
capacity shall be confidential. The mediator shall not be compelled to divulge such records or to testify in regard to the mediation
in any adversary proceeding or judicial forum except as may be provided in Section 154,073 of the Texas Civil Practice and Remedies
Code. Any party that violates this order may be subject to the imposition of sanctions as may be permitted by law. The parties shall
maintain the confidentiality of the mediation and shall not rely on, or introduce as evidence in any arbitral, judicial or other
Proceeding: A) Views expressed or suggestions made by another party with respect to # possible settlement of the dispute; B)
Admissions made by another party in the course of the mediation proceedings: C) Proposals made or views expressed by the mediator;
or D) The fact that another party had or had not indicated willingness to accept # proposal for settlement made by the mediator.
10. No Stenographic Record. There shall be no stenographic record of the mediation process and no person shall tape
record any portion of the mediation session
11. No Service of Process At or Near The Site of The Mediation Session. No Subpoenas, summons, complaints,
citations, writs or other process may be served upon any person at or near the site of any mediation session upon any person entering,
attending or leaving the session.
12. Termination of Mediation. The mediation shall be terminated. A) By the execution of a settlement agreement by the
parties, B) By declaration of the mediator to the effect that further efforts at mediation are no longer worthwhile; or C) After the
completion of one full mediation session, by a written declaration of a party or parties to the effect that the mediation proceedings
are terminated.
13. Interpretation and Application of Rules. The mediator shall interpret and apply these rules.
14, Fees and Expenses. The mediator’s daily fee, if agreed upon prior to mediation, shall be paid in advance of cach
mediation day. The expenses of witnesses for cithcr side shall be paid by the party producing such witnesses. All other expenses
of the mediation, including fees and expenses of the mediator, and the expenses of any witness and the cost of any proofs or expert
advice produced at the direct request of the mediator, shall be borne equally by the parties unless they agree otherwise.
Preview
Cause No. 09-17457-D gu 0 Ju 157 BRAD BENTON IN THE DISTRICT COURT OF vs. DALLAS COUNTY, TEXAS RANDALL'S FOOD & DRUG, LP d/b/a TOM THUMB FOOD STORES § § § § § § 95th DISTRICT COURT SCHEDULING AND LEVEL 3 DISCOVERY ORDER In accordance with TEX, R. Civ, P. 166 and 190, the Court makes the following Scheduling the Court’s 2 week docket beginning 1. This case is set for NON-JURY trial on December 6, 2010, at 8:30 a.m. and Level 3 Discovery Order: Trial announcements must be made in accordance with Local Rule 3.02. If the case is not reached as set, it may be carried to the next week. The failure of a party seeking affirmative relief to announce or appear at the trial setting will result in dismissal for want of prosecution. Failure of a defending party to announce or appear at the trial setting may result in an appropriate default against that party. A continuance of the trial setting will not alter any deadline in this Order or established by the Texas Rules of Civil Procedure, unless otherwise provided by order. Unless otherwise ordered herein or hereafter, discovery in this case will be controlled by the provisions of TEX. R. Civ. P. 190.4 (Level 3). 2. Pretrial matters shall be completed in the following number of days in advance of the trial setting: a. to file amended pleadings asserting new causes of action or raising new defenses 0.0.0.0... 00.0. eee eeeee 120 days b. by a party seeking affirmative relief, to designate experts in response to a request under TEX. R. Civ. P. 194.2(f) and to provide reports, if any. of an expert within that party's control .......... 120 days c. by a party opposing affirmative relicf, to designate experts in response to a request under TEX. R. Civ. P. 194.2(f) and to provide reports, if any, of an expert within that party’s control ... 90 days Scheduling and Level 3 Discovery Order — Page 1d. to designate rebuttal experts in response to a request under TEX. R. Civ. P. 194.2(f) and to provide reports, if any, of an expert within that party’s control ..... 00.0... eee eee eee 75 days e. to file dispositive motions, motions challenging expert qualifications, and to designate responsible third parties ............. 60 days f. to complete discovery, file other amended pleadings, and complete Mediation 2. 45 days The partics may by written agreement alter the deadlines set forth in this paragraph. Amended pleadings responsive to timely filed pleadings under this schedule may be filed after the deadline for amended pleadings if filed within ten (10) days after the pleading to which they respond. Except by agreement of the parties, leave of court, or where expressly authorized by law or the Texas Rules of Civil Procedure, no party may obtain discovery of information subject to disclosure under Rule 194 by any other form of discovery. If, at the time of an expert witness designation, a party fails to provide a report of an expert witness under its control, that party shall make the expert witness available for deposition reasonably promptly after the designation and, in the case of an expert designation under 2(b) and (c), above, in such time as will allow the completion of that expert’s deposition within fifteen (15) days of the designation, unless otherwise ordered or agreed by the parties. 3. Any objection to, or motion to exclude or limit, expert testimony must be set for hearing at the time the objection or motion is filed, or the complaint is waived. Any motion to compel discovery responses must be filed and a hearing sct thereon no later than seven days after the close of discovery, or such motion is waived, except for the sanction of exclusion under Rule 193.6. 4. Each side may have 50 hours of depositions and cach party may have 50 interrogatories, subject to the conditions of Rule 190.3(b)(2) and (3). 5. No additional parties may be joined more than cight (8) months after the commencement of this case except on motion for leave showing good cause. This paragraph does not otherwise alter the requirements of Rule 38. The party joining an additional party shal! serve a copy of this Order on the new party concurrently with the pleading joining that party. 6. Mediation will be conducted in accordance with the Standing Dallas County Civil District Court Order Regarding Mediation, which is available from the Dallas County ADR Coordinator. Rules for Mediation are enclosed herewith and shall be deemed a part of this Order. All parties shall contact the mediator to arrange the mediation, and the fees of the mediator shall be taxed as costs. Scheduling and Level 3 Discovery Order — Page 2The mediator appointed in this case is: Burdin Mediations, (214) 528-1411. Within 30 days of the date of this Order, the parties may agree to substitute a mediator of their choosing, provided that the appointed mediator and the Court are provided written notice of the substitution, together with the name and contact information of the substituted mediator. Mediator substitution beyond such time may only be made by motion, with good cause shown. 7. Fourteen (14) days before the trial setting, the parties shall exchange a list of witnesses and exhibits (including demonstrative aids), designations of deposition testimony to be offered in direct examination; motions in limine; and proposed submissions for the Court’s Charge, if applicable. The parties shall exchange copies of any exhibits not previously produced in discovery. Over-designation of witnesses and exhibits is strongly discouraged and may be sanctioned. Except for records to be offered by way of business records affidavits, each exhibit should be identified separately and not by category or group. 8. Ten (10) days before the trial setting, the parties shall exchange in writing their objections to the opposing party’s proposed exhibits and deposition designations. At the same time or before, the attorneys in charge for all parties shall meet in person and confer in a sincere cffort to resolve any disputes relating to exhibits, deposition designations, proposed charge submissions in jury cases, jury panel questionnaires, if any, and motions in limine, if any. The attomeys shal! also attempt to enter into and formalize stipulations that will expedite the trial of the case. 9. By 4 p.m. on the Thursday before the trial setting, the parties shall file with the Court a joint pre-trial submission containing the following: a statement of the parties’ contentions, any stipulations of ]aw and fact, a listing of the witnesses and exhibits of each party, and an estimate of the length of trial. In the case of a jury trial, each party shall also separately file and tender to the Court its designation of deposition testimony to be offered in direct examination, any proposed jury panel questionnaire, if not agreed, its motion in limine, and its proposed charge or applicable part thereof. The Court prefers that proposed charges or charge submissions be annotated and provided on CD or flash drive. The failure to file such materials may result in dismissal for want of prosecution or other appropriate sanction, including the entry of an appropriate default. 10. The parties are admonished to conduct themselves and this litigation in adherence to The Texas Lawyer's Creed-A Mandate for Professionalism. Among other locations, the TLC is available at the Web site of the Texas Center for Legal Ethics & Professionalism. 11. Plaintiff/Plaintiff's counsel shall serve a copy of this Order on any defendant(s) appearing after the date of this Order. . Scheduling and Level 3 Discovery Order - Page 3IT IS SO ORDERED. SIGNED: April 29, 2010 KEN MOLBERG Judge, 95th District Court ce: Counsel of Record/Pro Se Parties Mediator Burdin Mediations Scheduling and Level 3 Discovery Order — Page 4RULES FOR MEDIATION 1. Definition of Mediation. Mediation is a process under which an impartial person, the mediator, facilitates communication between the parties to promote reconciliation, settlement or understanding among them. The mediator may suggest ways of resolving the dispute, but may not impose his own judgment on the issues for that of the parties. 2. Conditions Precedent to Serving a Mediator. The mediator shall not serve as a mediator in any dispute in which he has any financial or personal interest in the result of the mediation. Prior to accepting an appointment, the mediator shall disclose any circumstances likely to create a presumption of bias or prevent a prompt meeting with the panics. 3. Authority of Mediator. The mediator docs not have the authority (o decide any issue for the parties, but will attempt to facilitate the voluntary resolution of the dispule by the parties. The mediator is authorized to conduct joint and separate meetings with the parties and to offer suggestions to assist the parties achieve settlement. If necessary, the mediator may also obtain expert advice conceming technical aspects of the dispute, provided that the partics agree and assume the expenses of obtaining such advice, arrangements for obtaining such advice shall be made by the mediator of the parties, as the mediator shall determine. 4, Parties Responsible for Negotiating Their Own Settlement. The parties understand that the mediator will not and cannol impose a settlement in their case. The mediator, as an advocate for settlement, will use every effort to facilitate the negotiations of the parties. The mediator does not warrant or represent that settiement will result from the mediation process. 5. Authority of Representatives. Party representatives must have authority to settle and all persons necessary to the decision to settle shal! be present. The names and addresses of such persons shall be communicated in writing to all parties and the mediator. 6. Time and Place of Me: jon. The mediator shall fix the time of cach mediation session. The mediation shall be held at the office of mediator, or at any other convenient location agreeable to the mediator and the parties, as the mediator shall determine. 7. Identification of Matters in Dispute. Prior to the first scheduled mediation session, each party shall provide the mediator and all attomeys of record with an information shect and request for mediation on the form provided by the mediator setting forth its position with regard to the issues that need to be resolved. At or before the first session, the parties will be expected to produc all information reasonably required for the mediator to understand the issues presented, ‘The mediator may require any party 10 supplement such information. 8. Privacy. Mediation sessions are private. The parties and their representatives may attend mediation sessions. Other persons may attend only with the permission of the parties and with the consent of the mediator. 9. Confidentiality. Confidential information disclosed to a mediator by the parties or by witnesses in the course of the mediation shail not be divulged by the mediator. Alt records, reports or other documents received by a mediator while serving in that capacity shall be confidential. The mediator shall not be compelled to divulge such records or to testify in regard to the mediation in any adversary proceeding or judicial forum except as may be provided in Section 154,073 of the Texas Civil Practice and Remedies Code. Any party that violates this order may be subject to the imposition of sanctions as may be permitted by law. The parties shall maintain the confidentiality of the mediation and shall not rely on, or introduce as evidence in any arbitral, judicial or other Proceeding: A) Views expressed or suggestions made by another party with respect to # possible settlement of the dispute; B) Admissions made by another party in the course of the mediation proceedings: C) Proposals made or views expressed by the mediator; or D) The fact that another party had or had not indicated willingness to accept # proposal for settlement made by the mediator. 10. No Stenographic Record. There shall be no stenographic record of the mediation process and no person shall tape record any portion of the mediation session 11. No Service of Process At or Near The Site of The Mediation Session. No Subpoenas, summons, complaints, citations, writs or other process may be served upon any person at or near the site of any mediation session upon any person entering, attending or leaving the session. 12. Termination of Mediation. The mediation shall be terminated. A) By the execution of a settlement agreement by the parties, B) By declaration of the mediator to the effect that further efforts at mediation are no longer worthwhile; or C) After the completion of one full mediation session, by a written declaration of a party or parties to the effect that the mediation proceedings are terminated. 13. Interpretation and Application of Rules. The mediator shall interpret and apply these rules. 14, Fees and Expenses. The mediator’s daily fee, if agreed upon prior to mediation, shall be paid in advance of cach mediation day. The expenses of witnesses for cithcr side shall be paid by the party producing such witnesses. All other expenses of the mediation, including fees and expenses of the mediator, and the expenses of any witness and the cost of any proofs or expert advice produced at the direct request of the mediator, shall be borne equally by the parties unless they agree otherwise.