Document 27
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FINGER
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David L. Finger, Resident, Wilmington Office: One Commerce Center, 1201 Orange 81., Suite 725 Wilmington, Delaware 19801-1155 Ph: (302) 884-6766 I Fax: (302) 984-1294 E-mail: [email protected] www.delawgroup.com
September 11, 2007
Via E-Filing The Honorable Mary Pat Thynge United States District Court 844 N. King Street Room 6100, Lockbox 8 Wilmington, DE 19801
Re: Chriss W. Street v. The End of the Road Trust, and American Trailer Industries, Inc.; Adv. Proceeding No. 07-00065-***; Proposed Scheduline Order.
Dear Magistrate Judge Thynge: I write in accordance with Your Honor's Order of September 7, 2007, which instructed counsel for the parties to confer regarding proposed dates for the scheduling order attached to Your Honor's Order and submit their respective proposals no later than three days before the September 14, 2007 teleconference. The parties have conferred regarding possible dates and enclosed as Exhibit A is Defendants' Proposed Scheduling Order. Also enclosed as Exhibit B is a redline version of Defendants' Proposed Scheduling Order, which readily identifies the differences between the parties' proposals. The parties are unable to agree on essentially one issue-the length of discovery. Defendants believe that a discovery period of slightly more than two months is the shortest period of time in which Defendants can prepare their case. Serious questions have arisen with respect to backdating regarding the execution ofone or both ofthe purported employment agreements involved in this matter. Those issues require discovery from not only Plaintiff, but various attorneys regarding the preparation and execution of these and related documents. Defendants anticipate that a deposition ofnot only Mr. Street, but ofeach attorney involved in the drafting and execution ofthose agreements and related documents will be necessary. There is simply no way written discovery, such depositions, and resolution ofany discovery disputes, can be accomplished in the roughly one-month period proposed by Plaintiff.
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The Hon. Mary Pat Thynge September 11, 2007
2
Plaintiff s insistence that the discovery period in this matter be overly expedited is inconsistent with his total lack of interest in or cooperation with Defendants' efforts to engage Plaintiff in informal discovery many months ago. On June 6, 2007, Defendants' proposed to Plaintiffthat the parties engage in informal discovery while awaiting the Court's ruling on Plaintiff s motion to remand. Such a course of action would have ensured that this matter was trial ready as promptly as possible after Plaintiff s motion was resolved. In that regard, Defendants submitted to Plaintiffan informal set ofinterrogatories and documents requests in connection with their proposal. Having received no response from Plaintiff in more than two weeks, Defendants again wrote to Plaintiff on June 22, 2007, to inquire as to Defendants' informal discovery proposal. Ultimately, Defendants' efforts proved to be for naught. A copy of Defendants' proposal and reminders and Plaintiffs response are attached hereto as Exhibit C. Defendants respectfully submit the enclosed proposed scheduling order for the Court's consideration in connection with the September 14, 2007 teleconference.
Respectfully submitted,
cc:
Clerk of the Court (via CM/ECF) Neil B. Glassman, Esq. (via CM/ECF) Robert T. Kugler, Esq. (via CM/ECF)
Case 1:07-cv-00065-JJF
Document 27-2
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CHRISS W. STREET, Petitioner, v. THE END OF THE ROAD TRUST AND AMERICAN TRAILER INDUSTRIES, INC., Respondents. ) ) ) ) ) Civil Action No. 1:07-cv-0065*** ) ) ) ) )
DEFENDANTS' PROPOSED SCHEDULING ORDER This ____ day of , 2007, the Court having conducted an initial
Rule 16 scheduling and planning conference pursuant to Local Rule 16.2(a) on September 14, 2007, and the parties having determined after discussion that the matter cannot be resolved at this juncture by settlement, voluntary mediation, or binding arbitration; IT IS ORDERED that, subject to the Court's disposition of the Motion to Remand: 1. Rule 26(a)(1) Initial Disclosures and E-Discovery Default Standard..
Unless otherwise agreed to by the parties, the parties shall make their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) within five days of the date of this Order. If they have not already done so, the parties are to review the Court's Default Standard for Discovery of Electronic Documents, which is posted at
http://www.ded.uscourts.gov (see Orders, etc., Policies & Procedures, Ad Hoc Committee for Electronic Discovery), and is incorporated herein by reference. 2. Joinder of other Parties and Amendment of Pleadings. All motions to join
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other parties and to amend or supplement the pleadings shall be filed on or before September 30, 2007. 3. Discovery a. Limitation on Hours for Deposition Discovery . Each side is
limited to a total of 16 hours of taking testimony by deposition upon oral examination. b. Location of Depositions. Any party or representative (officer,
director, or managing agent) of a party filing a civil action in this district court must ordinarily be required, upon request, to submit to a deposition at a place designated within this district. Exceptions to this general rule may be made by order of the Court. A defendant who becomes a counterclaimant, cross-claimant, or third-party plaintiff shall be considered as having filed an action in this Court for the purpose of this provision. c. Discovery Cut Off. Discovery shall begin immediately. All discovery in
this case shall be initiated so that it will be completed on or before November 30, 2007. The Court encourages the parties to serve and respond to contention interrogatories early in the case. Unless otherwise ordered by the Court, the limitations on discovery set forth in Local Rule 26.1 shall be strictly observed. d. Disclosure of Expert Testimony. The Parties have each confirmed that no
independent experts will be called to testify. e. Discovery Disputes. Should Counsel find they are unable to resolve a
discovery dispute, the party seeking the relief shall contact chambers at (302) 573-6173 to schedule a telephone conference. Not less than forty-eight hours prior to the conference, the party seeking relief shall file with the Court a letter, not to exceed three
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pages, outlining the issues in dispute and its position on those issues. (The Court does not seek extensive argument or authorities at this point; it seeks simply a statement of the issue to be addressed and a summary of the basis for the party's position on the issue.) Not less than twenty-four hours prior to the conference, any party opposing the application for relief may file a letter, not to exceed three pages, outlining that party's reasons for its opposition. Should any document(s) be filed under seal, a copy of the sealed document(s) must be provided to the Magistrate Judge within one (1) hour of e-filing the document(s). Should the Court find further briefing necessary upon conclusion of the telephone conference, the Court will order it. Disputes over protective orders are to be addressed in the first instance in accordance with this paragraph.
4.
Application to Court for Protective Order.
Should counsel find it will be
necessary to apply to the Court for a protective order specifying terms and conditions for the disclosure of confidential information, counsel should confer and attempt to reach an agreement on a proposed form of order and submit it to the Court within ten days from the date of this Order. Should counsel be unable to reach an agreement on a proposed form of order, the counsel must first follow the provisions of Paragraph 3e above. Any proposed order should include the following paragraph: Other Proceedings. By entering this order and limiting the disclosure of information in this case, the Court does not intend to preclude another court from finding that information may be relevant and subject to disclosure in another case. Any person or party subject to this order who becomes subject to a motion to disclose another party's information designated "confidential" pursuant to this order shall promptly notify that party of the motion so that the party may have an opportunity to appear and be heard on whether that information should be disclosed.
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5.
Papers Filed Under Seal. When filing papers under seal, counsel should
deliver to the Clerk an original and one copy of the papers. 6. 7. ADR Process. To be discussed during the Rule 16 scheduling conference. Report. On November 1, 2007, counsel shall submit a letter to the Court
with an interim report on the nature of the matters in issue and the progress of discovery to date. 8. Status Conference. On [December 14, 2007, or as soon thereafter as the
Court's schedule permits] the Court will hold a Rule 16(a), (b) and (c) conference by telephone with counsel beginning __.m. Plaintiff's counsel shall
initiate the telephone call. At the time of this conference, counsel shall also be prepared to discuss the progress, if any, of settlement discussions and shall be prepared to discuss the possibility of setting up a settlement conference with the Court, counsel and their clients. If all parties agree that there is nothing to report, nor anything to add to the interim status report or to this order, they shall notify the Court in writing before the conference is scheduled to occur, and the conference will be taken off the Court's calendar. 9. Motions. In order to facilitate efficiency and judicial economy, and to
expedite the matter, the parties, through counsel, have agreed to dispense with dispositive motions. However, Defendants do intend to bring a motion within ten (10) days if and after the entry of an Order denying the pending motion for remand, asking the Court to refer this proceeding to the United States Bankruptcy Court for the District of Delaware pursuant to 28 U.S.C. § 157(a). 10. Applications by Motion. Except as otherwise specified herein, any
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application to the Court shall be by written motion filed with the Clerk. Unless otherwise requested by the Court, counsel shall not dehver copies of papers or correspondence to Chambers. Any non-dispositive motion should contain the statement required by Local Rule 7.1.1. 11. Pretrial Conference. On [December 31, 2007, or as soon thereafter as the
Court's schedule permits] the Court will hold a Final Pretrial Conference in Chambers with counsel beginning at _.m. Unless otherwise ordered by the
Court, the parties should assume that filing the pretrial order satisfies the pretrial disclosure requirement of Federal Rule of Civil Procedure 26(a)(3). The parties shall file with the Court the joint proposed final pretrial order with the information required by the form of Final Pretrial Order which accompanies this Scheduling Order on or before December 21, 2007. 12. Motions in Limine. Motions in Limine shall not be separately filed. All in
limine requests and responses thereto shall be set forth in the proposed pretrial order. Each party shall be limited to five in limine requests, unless otherwise permitted by the Court. The in limine request and any response shall contain the authorities relied upon; each in limine request may be supported by a maximum of three pages of argument and may be opposed by a maximum of three pages of argument. If more than one party is supporting or opposing an in limine request, such support or opposition shall be combined in a single three (3) page submission, unless otherwise ordered by the Court. No separate briefing shall be submitted on in limine requests, unless otherwise permitted by the Court. 13. Jury Instructions, Voir Dire, and Special Verdict Forms. Inapplicable.
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14.
Trial. This matter is scheduled for a 1 day bench trial beginning at For the purpose of
9:30 a.m. on [the first available date after January 3, 2008].
completing pretrial preparations, counsel should plan on each side being allocated a total of 3.25 hours to present their case.
UNITED STATES MAGISTRATE JUDGE
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CHRISS W. STREET, Petitioner, v. THE END OF THE ROAD TRUST AND AMERICAN TRAILER INDUSTRIES, INC., Respondents. ) ) ) ) ) Civil Action No. 1:07-cv-0065*** ) ) ) ) )
DEFENDANTS' PROPOSED SCHEDULING ORDER This ____ day of , 2007, the Court having conducted an initial
Rule 16 scheduling and planning conference pursuant to Local Rule 16.2(a) on September 14, 2007, and the parties having determined after discussion that the matter cannot be resolved at this juncture by settlement, voluntary mediation, or binding arbitration; IT IS ORDERED that, subject to the Court's disposition of the Motion to Remand: 1. Rule 26(a)(1) Initial Disclosures and E-Discovery Default Standard..
Unless otherwise agreed to by the parties, the parties shall make their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) within five days of the date of this Order. If they have not already done so, the parties are to review the Court's Default Standard for Discovery of Electronic Documents, which is posted at
http://www.ded.uscourts.gov (see Orders, etc., Policies & Procedures, Ad Hoc Committee for Electronic Discovery), and is incorporated herein by reference.
669797-1
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2.
Joinder of other Parties and Amendment of Pleadings. All motions to join
other parties and to amend or supplement the pleadings shall be filed on or before September 30, 2007. 3. Discovery a. Limitation on Hours for Deposition Discovery . Each side is
limited to a total of 716 hours of taking testimony by deposition upon oral examination. b. Location of Depositions. Any party or representative (officer,
director, or managing agent) of a party filing a civil action in this district court must ordinarily be required, upon request, to submit to a deposition at a place designated within this district. Exceptions to this general rule may be made by order of the Court. A defendant who becomes a counterclaimant, cross-claimant, or third-party plaintiff shall be considered as having filed an action in this Court for the purpose of this provision. c. Discovery Cut Off. Discovery shall begin immediately. All discovery in
this case shall be initiated so that it will be completed on or before October 26,November 30, 2007. The Court encourages the parties to serve and respond to contention
interrogatories early in the case. Unless otherwise ordered by the Court, the limitations on discovery set forth in Local Rule 26.1 shall be strictly observed. d. Disclosure of Expert Testimony. There shall be no expert testimony in
this matterThe Parties have each confirmed that no independent experts will be called to testify. e. Discovery Disputes. Should Counsel find they are unable to resolve a
discovery dispute, the party seeking the relief shall contact chambers at (302) 573-6173
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to schedule a telephone conference. Not less than forty-eight hours prior to the conference, the party seeking relief shall file with the Court a letter, not to exceed three pages, outlining the issues in dispute and its position on those issues. (The Court does not seek extensive argument or authorities at this point; it seeks simply a statement of the issue to be addressed and a summary of the basis for the party's position on the issue.) Not less than twenty-four hours prior to the conference, any party opposing the application for relief may file a letter, not to exceed three pages, outlining that party's reasons for its opposition. Should any document(s) be filed under seal, a copy of the sealed document(s) must be provided to the Magistrate Judge within one (1) hour of e-filing the document(s). Should the Court find further briefing necessary upon conclusion of the telephone conference, the Court will order it. Disputes over protective orders are to be addressed in the first instance in accordance with this paragraph.
4.
Application to Court for Protective Order.
Should counsel find it will be
necessary to apply to the Court for a protective order specifying terms and conditions for the disclosure of confidential information, counsel should confer and attempt to reach an agreement on a proposed form of order and submit it to the Court within ten days from the date of this Order. Should counsel be unable to reach an agreement on a proposed form of order, the counsel must first follow the provisions of Paragraph 3e above. Any proposed order should include the following paragraph: Other Proceedings. By entering this order and limiting the disclosure of information in this case, the Court does not intend to preclude another court from finding that information may be relevant and subject to disclosure in another case. Any person or party subject to this order who becomes subject to a motion to disclose another party's information designated "confidential" pursuant to this order
669797-1
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shall promptly notify that party of the motion so that the party may have an opportunity to appear and be heard on whether that information should be disclosed.
5.
Papers Filed Under Seal. When filing papers under seal, counsel should
deliver to the Clerk an original and one copy of the papers. 6. 7. ADR Process. To be discussed during the Rule 16 scheduling conference. Report. On October 26,November 1, 2007, counsel shall submit a letter to
the Court with an interim report on the nature of the matters in issue and the progress of discovery to date. 8. Status Conference. On November 9,[December 14, 2007, or as soon
thereafter as the Court's schedule permits] the Court will hold a Rule 16(a), (b) and (c) conference by telephone with counsel beginning __.m. Plaintiff's
counsel shall initiate the telephone call. At the time of this conference, counsel shall also be prepared to discuss the progress, if any, of settlement discussions and shall be prepared to discuss the possibility of setting up a settlement conference with the Court, counsel and their clients. If all parties agree that there is nothing to report, nor anything to add to the interim status report or to this order, they shall notify the Court in writing before the conference is scheduled to occur, and the conference will be taken off the Court's calendar. 9. 9. Motions. There shall be no case dispositive motions filed. Motions. In order to facilitate efficiency and judicial economy, and to
expedite the matter, the parties, through counsel, have agreed to dispense with dispositive motions. However, Defendants do intend to bring a motion within ten (10) days if and after the entry of an Order denying the pending motion for remand, asking the Court to
669797-1
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refer this proceeding to the United States Bankruptcy Court for the District of Delaware pursuant to 28 U.S.C. § 157(a). 10. Applications by Motion. Except as otherwise specified herein, any
application to the Court shall be by written motion filed with the Clerk. Unless otherwise requested by the Court, counsel shall not dehver copies of papers or correspondence to Chambers. Any non-dispositive motion should contain the statement required by Local Rule 7.1.1. 11. Pretrial Conference. On November 20,[December 31, 2007, or as soon
thereafter as the Court's schedule permits] the Court will hold a Final Pretrial Conference in Chambers with counsel beginning at _.m. Unless otherwise
ordered by the Court, the parties should assume that filing the pretrial order satisfies the pretrial disclosure requirement of Federal Rule of Civil Procedure 26(a)(3). The parties shall file with the Court the joint proposed final pretrial order with the information required by the form of Final Pretrial Order which accompanies this Scheduling Order on or before November 15,December 21, 2007. 12. Motions in Limine. Motions in Limine shall not be separately filed. All in
limine requests and responses thereto shall be set forth in the proposed pretrial order. Each party shall be limited to five in limine requests, unless otherwise permitted by the Court. The in limine request and any response shall contain the authorities relied upon; each in limine request may be supported by a maximum of three pages of argument and may be opposed by a maximum of three pages of argument. If more than one party is supporting or opposing an in limine request, such support or opposition shall be combined in a single three (3) page submission, unless otherwise ordered by the Court.
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No separate briefing shall be submitted on in limine requests, unless otherwise permitted by the Court. 13. 14. Jury Instructions, Voir Dire, and Special Verdict Forms. Inapplicable. Trial. This matter is scheduled for a 1 day bench trial beginning at 9:30
a.m. on November 29, 2007.[the first available date after January 3, 2008]. For the purpose of completing pretrial preparations, counsel should plan on each side being allocated a total of 33.25 hours to present their case.
UNITED STATES MAGISTRATE JUDGE
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Document comparison by Workshare Professional on Tuesday, September 11, 2007 9:26:49 AM Input: Document 1 ID Description Document 2 ID Description Rendering set Legend: Insertion Deletion Moved from Moved to Style change Format change Moved deletion Inserted cell Deleted cell Moved cell Split/Merged cell Padding cell Statistics: Count Insertions Deletions Moved from Moved to Style change Format changed Total changes 12 10 0 0 0 0 22 interwovenSite://MNDMS.LEONARD.COM/Minnesota/407 0381/1 #4070381v1
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