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Case 1:13-cv-00069-DLH-CSM Document 20 Filed 08/13/13 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

SOUTHWESTERN DIVISION

Kevin Swanke and Barbara Swanke,

Plaintiffs,

vs.

General Motors, LLC, a foreign
corporation,

Defendant.

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ORDER FOR FINAL PRETRIAL
CONFERENCE



Case No. 1:13-cv-069

______________________________________________________________________________

IT IS ORDERED:

A final pretrial conference will be held before the magistrate judge on December 22, 2014,

at 1:30 p.m. The conference will be conducted via telephone conference call to be initiated by the

court.

PRIOR TO PRETRIAL

Prior to the date of the final pretrial conference, counsel shall confer in person or by

telephone for the purpose of preparing a joint Final Pretrial Statement and examining and marking

exhibits as detailed below. Within two (2) days of the Final Pretrial Conference, counsel shall e-

mail the following documents to [email protected] in "Wordperfect" or "Word"

format:

(1)

(2)

(3)

Final Pretrial Statement;

Exhibit List for each party; and

Expert Reports.

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Case 1:13-cv-00069-DLH-CSM Document 20 Filed 08/13/13 Page 2 of 5

Final Pretrial Statement: Counsel will jointly prepare for presentation to the court at

pretrial a Final Pretrial Statement in substantially the same form as the sample posted on the court's

website (http://www.ndd.uscourts.gov/forms). Rule 26(a)(3) disclosures shall be incorporated into

the Final Pretrial Statement.

Counsel are not required to stipulate or waive anything. They are required to confer in

advance of the conference and prepare and joint Final Pretrial Statement covering the matters set

out in this order for presentation to the court at the final pretrial conference.

The Final Pretrial Statement must be completed and signed by all counsel, signifying

acceptance. The court will enter an order following the conference accepting or modifying its terms.

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 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

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Case 1:13-cv-00069-DLH-CSM Document 20 Filed 08/13/13 Page 3 of 5

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.

The non-offering party shall list in the Final Pretrial Statement any objections to

admissibility of exhibits by the offering party. Objections not so disclosed (other than objections

under Federal Rules of Evidence 402 and 403) shall be deemed waived unless excused by the court

for good cause shown. See Fed. R. Civ. P. 26(a)(3).

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_J-

[email protected] as a separate document.

FOLLOWING PRETRIAL AND 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.

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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.

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 [email protected] 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.

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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 13th day of August, 2013.

/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr.
United States Magistrate Judge

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