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Binion v. United States

United States District Court, D. Colorado

February 21, 2014

BARBARA BINION, Plaintiff,
v.
THE UNITED STATES OF AMERICA, Defendant.

TRIAL PREPARATION CONFERENCE ORDER

KATHLEEN M. TAFOYA, Magistrate Judge.

Pursuant to Fed.R.Civ.P. 16(e), D.C.COLO.LCivR 16.3, and D.C.COLO.LCivR 43.1, the court enters this Trial Preparation Conference Order.

IT IS ORDERED as follows:

1. In order to resolve pretrial issues implicating Fed.R.Evid. 702, the following procedural protocol shall be used:

a. All motions raising issues under Fed.R.Evid. 702 as codified and construed shall be filed by the discovery cut-off date of July 28, 2014, and marshaled thereafter as prescribed by D.C.COLO.LCivR 7.1(c).;
b. For each putative expert witness with respect to whom the movant objects for any reason, the movant shall provide the following:
1. whether the movant contends that the testimony of the expert is unnecessary or irrelevant; and if so, why;
2. whether the movant objects to the qualifications of the witness; and if so, why (stated in detail); and
3. whether the movant objects to any opinion to be offered by the expert; and if so:
a. which opinion; and
b. the specific basis and authority for any objection stated and presented in terms of Fed.R.Evid. 401 and/or 702(a), (b), (c), or (d), i.e., whether the objection impugns the relevancy of the opinion, whether the objection impugns the sufficiency of the facts and data used in support of the opinion, whether the objection impugns the principles and methods on which the expert relied in support of the opinion, or whether the objection impugns how the expert has applied the principles and methods reliably to the facts of the case relevant to the opinion; and
c. for each putative expert witness whose necessity, qualifications, or opinions are opposed by the movant, the party offering the expert shall provide in response to the motion the following:
1. a curriculum vitae for the expert;
2. a statement of each opinion to be offered by the expert that is opposed by the movant; and
3. the relevance and bases for each allegedly objectionable statement to be offered by the expert, including
i. the facts or data on which the expert relied in support of the opinion made the focus and subject of objection;
ii. the principles and methods on which the expert relied in support of the opinion made the focus and subject of objection; and
iii. how the expert has applied the principles and methods reliably to the facts of the case relevant to the opinion made the focus and subject of objection;

2. A trial to the court shall commence December 8, 2014, at 9:30 a.m., in Courtroom C-201, located on the 2nd Floor of the Byron Rogers United States Courthouse, 1929 Stout Street, Denver, Colorado 80294, at which trial all parties shall appear in person without further notice, order, or subpoena;

3. The court reserves five (5) days for trial:

• Monday, December 8, 2014, through Friday, December 12, 2014;

4. Counsel and any pro se party shall appear in Courtroom C-201 on the first day of trial at 8:45 a.m., to review and discuss with the courtroom deputy clerk and the court, if necessary, any final details, arrangements, or requirements concerning the trial;

5. A combined Trial Preparation Conference and Final Pretrial Conference (conference) shall commence on November 6, 2014, at 3:30 p.m., in Courtroom C-201. Lead counsel and any pro se party shall attend the conference in person unless otherwise pre-arranged;

6. The proposed Final Pretrial Order, submitted pursuant to District Court ECF Procedures V.5.1, shall be presented for the approval of the court no later than seven (7) days before the final pretrial conference, i.e. by October 30, 2014;

7. The proposed Final Pretrial Order shall be prepared in the time, manner, and form prescribed by D.C.COLO.LCivR 16.3 and the "Instructions Final Pretrial Order" to Local Rules of Practice - Forms http://www.cod.uscourts.gov/CourtOperations/RulesProcedures/Forms.aspx; except that the proposed Final Pretrial Order under section "7. EXHIBITS" shall not require the parties to list the exhibits to be offered by each party as otherwise required under subsection "a" (See instead, paragraph 8, infra. ), and shall provide under subsection "b" that copies of exhibits must be provided to opposing counsel or any pro se party no later than 45 days before trial and that objections to the exhibits must be served by personal delivery, electronic mail, or facsimile no later than 30 days before trial;

8. At the outset of the conference, the parties shall submit the Parties' Joint Exhibit List on the form required by the court (an original for the court with copies for the courtroom deputy clerk, the law clerk, and all other parties) and in addition to the information required to be submitted under section "6. WITNESSES" of the final pretrial order, each party shall submit on the Witness List form required by the court (an original for the court with copies for the courtroom deputy clerk and all other parties) a "will call" witness list enumerating the name and address (city or county and state only) of each witness that will be called and a "may call" witness list enumerating the name and address (city or county and state only) of each witness that may be called. The "will call" witness list constitutes a representation on which the court and every other party may rely that the "will call" witnesses listed will be present and available to testify during trial;

9. At the conference the parties shall be prepared to review and discuss, inter alia, the following:

a. the proposed Final Pretrial Order;
b. identification of all persons permitted to be seated at each party's table;
c. the pronunciation of problematic party's and witness' names;
d. the names or monikers that may be used when referring to a party or a witness;
e. identification of "will call" and "may call" witnesses;
f. use of deposition testimony:
1. designation of specific testimony by page and line; and
2. identification of the person selected to read deposition answers; g.use of video depositions:
1. resolution of objections;
2. pretrial redaction, if necessary; and
3. arrangements for necessary equipment to broadcast the deposition;
h. issues concerning witnesses and exhibits;
i. the allocation of trial time between the parties;
j. the admission of stipulated exhibits or exhibits about which there are no objections;
k. anticipated evidentiary issues;
l. requests or requirement for trial briefs and/or proposed findings of fact and conclusions of law;
m. exemptions from the order of sequestration of witnesses;
n. security precautions, requirements, or issues;
o. training on the use of courtroom technology; and
p. transporting and bringing equipment, models, props, or other property into the courthouse and courtroom for use during trial;[1]

10. Before commencement of the trial, the parties shall submit to the courtroom deputy clerk the exhibits identified in their joint exhibit list (a set of original exhibits for use by the witnesses and a copy for the court, the law clerk, and all other parties). If a hard copy of the exhibits will necessitate the use of more than one notebook-style binder, the court requires that exhibits be marshaled electronically using removable storage (e.g. stick drives) which shall be provided to the court, the law clerk, and the courtroom deputy. Only one original set of exhibits will be accepted in hard copy format under this provision;

11. Trial witnesses subject to sequestration under Fed.R.Evid. 615 shall be sequestered by order entered sua sponte immediately before opening statements;

12. Opening statements shall be limited to thirty (30) minutes per party. Closing argument shall be limited to forty-five (45) minutes total for each party. The party with the burden of proof may reserve a portion of its time for rebuttal closing;

13. Unless interrupted by the court, in marshaling motions or objections during trial, the following sequential protocol shall be observed: objection, response, reply, ruling;

14. Each party shall be responsible to inform the courtroom deputy clerk by the conclusion of a trial day about any issue which should be considered before commencing trial on the next scheduled day of trial and at the outset of a trial day about any issue which should be considered at the conclusion of that trial day;

15. For additional information about courtroom protocol, courtroom technology and training, trial preparation, transport of items into the courthouse and courtroom, or submission of trial exhibits, the courtroom deputy clerk, Sabrina Grimm, at (303)335-2039, should be contacted.


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