Proposed Scheduling Order — U.S. Navy SEALs 1-26 v. Biden (Dkt. 265.1)

Summary

A [PROPOSED] Scheduling Order, Document 265-1, filed 03/08/24 in Civil Action No. 4:21-cv-01236-O, in the U.S. District Court for the Northern District of Texas, Fort Worth Division. The caption names US Navy SEALs 1-26 as plaintiffs and Lloyd J Austin, III as a defendant. A summary of critical dates lists mediation on April 3, 2024, stay of proceedings lifted April 10, 2024, completion of discovery June 17, 2024, dispositive motions June 26, 2024, and a trial date of September 11, 2024. The scheduling instructions state that the parties shall participate in mediation with Magistrate Judge Jeffrey Cureton as mediator on April 3, 2024.

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“Proposed Scheduling Order — U.S. Navy SEALs 1-26 v. Biden (Dkt. 265.1).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-txnd-355696-265-1-b5bb3cec8b/, SHA-256 25aad637376ca2eb2aed85a14b3fb9224bbbb35cfe4ef57904a46077e2e83c99.

Full text

Case 4:21-cv-01236-O Document 265-1 Filed 03/08/24 Page 1 of 10 PageID 7969

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

US NAVY SEALS 1-26, et al., §
§
Plaintiffs, §
§
v. § Civil Action No. 4:21-cv-01236-O
§
LLOYD J AUSTIN, III, et al., §
§
Defendants. §

[PROPOSED] SCHEDULING ORDER

I. SUMMARY OF CRITICAL DATES

Mediation (¶ 5) April 3, 2024
Stay of Proceedings Lifted April 10, 2024
Amended Rule 26(a)(1) Initial Disclosures (¶ 4a) and April 10, 2024
Rule 26(a)(2) Expert Disclosures (¶ 4b)
Rebuttal Expert Disclosures (¶ 4c) April 24, 2024
Completion of Discovery (¶ 6) June 17, 2024
Dispositive Motions(¶ 3) June 26, 2024
Pretrial Disclosures and Objections (¶ 7) August 7, 2024. Objections due 14
days thereafter.
Pretrial Materials (pretrial order etc.) (¶ 8) August 21, 2024
Exchange of Exhibits (¶ 9) August 28, 2024
Pretrial Conference (¶ 11) To be set if necessary.
Trial Date (¶ 1) September 11, 2024

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II. SCHEDULING INSTRUCTIONS

Pursuant to Rule 16(b) of the Federal Rules of Civil Procedure and the local rules of this

Court (except as modified herein), the Court, having considered the status report submitted by the

parties, finds that the following schedule should govern the disposition of this case:

Unless otherwise ordered or specified herein, all limitations and requirements of the

Federal Rules of Civil Procedure and the local rules of this Court must be observed.

Please note that the Court has attempted to adhere to the schedule requested by the

parties. In so doing, the Court assumes that the parties thoroughly discussed scheduling

issues prior to submitting their status report and that the parties understand that the

deadlines imposed in this Order are firmly in place, absent the few exceptions set forth below.

1. Trial Date: This case is set for trial on this Court’s four-week docket beginning

September 11, 2024. Counsel and the parties shall be ready for trial on two days’

notice at any time during this four-week period.

2. Joinder of Parties or Amendment of Pleadings: The parties agree that no joinder

of parties or amendment of pleadings is anticipated.

3. Dispositive Motions: By June 26, 2024, all motions that would dispose of all or

any part of this case (including motions for summary judgment) shall be filed.

4. Amended Initial Disclosures and Expert Disclosures:

a. Amended Initial Disclosures: The parties shall provide amended initial
disclosures and otherwise comply with Rule 26(a)(1) of the Federal Rules of Civil
Procedure on or before April 10, 2024. (Unless otherwise noted, all references to
Rules in this Order shall refer to the Federal Rules of Civil Procedure.)

b. Initial Designation of Expert(s): Unless otherwise stipulated or directed by
order, each party shall file a written designation of the name and address of each
expert witness who will testify at trial for that party and shall otherwise comply with
Rule 26(a)(2) of the Federal Rules of Civil Procedure on or before April 10, 2024.

c. Rebuttal Expert(s): If the evidence is intended solely to contradict or rebut
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evidence on the same subject matter identified by another party under Rule
26(a)(2)(B) or (C), the disclosures required under Rule 26(a)(2) shall be made on
or before April 24, 2024.

5. Mediation Deadline: The parties shall participate in mediation with Magistrate

Judge Jeffrey Cureton as mediator on April 3, 2024. Within seven days after the

mediation, the parties shall jointly prepare and file a written report, which shall be signed

by counsel for each party, detailing the date on which the mediation was held, the persons

present (including the capacity of any representative), and a statement informing the Court

of the effect of their mediation and whether this case has been settled by agreement of the

parties.

6. Completion of Discovery: By June 17, 2024, all discovery—including

discovery concerning expert witnesses—shall be completed. The parties may agree

to extend this discovery deadline, provided (a) the extension does not affect the

trial setting, dispositive motions deadline, challenges to experts deadline, or pretrial

submission dates; and (b) written notice of the extension is given to the Court.

7. Pretrial Disclosures and Objections: Unless otherwise directed by order, the

parties must make the disclosures required by Rule 26(a)(3)(A)-(B) by August 7,

2024. With respect to the identification of witnesses who will be called by

deposition, the parties must also identify the portions of the deposition transcript

that they intend to use. (Modification of Rule 26(a)(3)(A)(ii)). Within 14 days

thereafter, a party must serve and file a list disclosing any objections, together

with the grounds therefor, to: (a) the use under Rule 32(a) of a deposition designated

by another party under Rule 26(a)(3)(A)(ii); (b) the admissibility of materials

identified under Rule 26(a)(3)(A)(iii); and (c) the use of any witnesses (except for

expert objections) identified under Rule 26(a)(3)(A)(i)1, if any. Objections not so

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disclosed, other than objections under Rules 402 and 403 of the Federal Rules of

Evidence, are waived unless excused by the Court for good cause.

8. Pretrial Materials: By August 21, 2024 except as otherwise noted below, all

pretrial materials shall be filed. Specifically, by this date:

a. Pretrial Order: A joint pretrial order shall be submitted by the Plaintiff's
attorney which covers each of the matters listed in Local Rule 16.4 and which states
the estimated length of trial. If an attorney for either party does not participate in
the preparation of the joint pretrial order, the opposing attorney shall submit a
separate pretrial order with an explanation of why a joint order was not submitted
(so that the Court can impose sanctions, if appropriate). Each party may present its
version of any disputed matter in the joint pretrial order; therefore, failure to agree
upon content or language is not an excuse for submitting separate pretrial
orders. (Modification of Local Rule 16.4). When the joint pretrial order is
approved by the Court, it will control all subsequent proceedings in this case. If
submitted on paper, the parties must submit the original and one copy of the
proposed pretrial order (styled as the “Pretrial Order”) directly to the Court’s
chambers. Do not file it with the clerk. The Court will direct the clerk to file it after
the Court signs it. The proposed pretrial order must be transmitted to the electronic
address used for receipt of proposed orders (O’Connor_Orders@txnd.uscourts.gov)
no later than August 26, 2024.

b. Witness List: A list of witnesses shall be filed by each party, which divides
the persons listed into groups of “probable witnesses,” “possible witnesses,”
“experts,” and “record custodians” and which provides:

(i) the name and address of each witness;

(ii) a brief narrative summary of the testimony to be covered by each
witness;

(iii) whether the witness has been deposed; and

(iv) the expected duration of direct or cross-examination of the witness.2

1
Requiring parties to file objections to witnesses disclosed under Rule 26(a)(3)(A)(i) is a
modification of the requirements of Rule 26(a)(3)(B), which only requires that the parties file objections to
deposition designations (Rule 26(a)(3)(A)(ii)) and exhibits (Rule 26(a)(3)(A)(iii)).
2
Pursuant to Rule 16(c)(2)(O) and Section VII of the United States District Court for the Northern
District of Texas Civil Justice Expense and Delay Reduction Plan, the Court may impose a reasonable limit
on the time allowed for presenting evidence in this case. See Commentary - 1993 Amendment to the Federal
Rules of Civil Procedure (court should ordinarily impose time limits only after receiving appropriate
submissions from the parties).

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The Witness list will include three columns. The first column will contain a brief
statement of the subject matter to be covered by a particular witness. The second
column will bear the heading “Sworn,” and the third column will bear the heading
“Testified,” so that the Court can keep track of the witnesses at trial.

If any witness needs an interpreter, please note this on the witness list. It is the
obligation of the party offering such a witness to arrange for an interpreter to be
present at trial.

(Modification of Local Rule 26.2(b))

c. Exhibit List and Deposition Testimony Designations: A list of exhibits
(including demonstrative exhibits) and a designation of portions of depositions
to be offered at trial shall be filed by each party. The list of exhibits shall describe
with specificity the documents or things in numbered sequence. The documents or
things to be offered as exhibits shall be numbered by attachment of gummed labels
to correspond with the sequence on the exhibit list and identify the party submitting
the exhibit. (Modification of Local Rule 26.2(b), (c)). Do not use letter suffixes to
identify exhibits (e.g., designate them as 1, 2, 3, not as 1A, 1B, 1C). The Exhibit
list will include two columns, one bearing the heading “Offered” and the other
bearing the heading “Admitted.”

Each party’s exhibit list shall be accompanied by a written statement, signed by
counsel for each party and state that, as to each exhibit shown on the list,

(i) the parties agree to the admissibility of the exhibit; or

(ii) the admissibility of the exhibit is objected to, identifying the nature and
legal basis of any objection to admissibility and the name(s) of the party or
parties urging the objection.

All parties shall cooperate in causing such statements to be prepared in a timely
manner for filing with the exhibit lists. Counsel for the party proposing to offer an
exhibit shall be responsible for coordinating activities related to preparation of such
a statement as to the exhibit the party proposes to offer. This includes an obligation
to make exhibits available for inspection in advance of the deadline for filing
exhibit lists where a party needs to see exhibits to assess admissibility. The Court
may exclude any exhibit offered at trial unless such a statement regarding the
exhibit has been filed in a timely manner. In addition, objections not identified in
the statement may be waived.

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A list of each party’s exhibits to which no objection will be lodged (preadmitted)
must be submitted at the pretrial conference.3 The Court expects the parties to
confer and agree to admit the majority of their exhibits prior to trial.

d. Proposed Findings of Fact and Conclusions of Law (annotated)4: In a non-
jury case, proposed findings of fact and conclusions of law shall be filed by each
party having the burden of persuasion on an issue. Within 5 days thereafter, any
opposing party shall serve its proposed findings and conclusions (annotated)5 on
that issue, numbered in paragraphs corresponding to those earlier filed.
(Modification of Local Rule 52.1).

e. Trial Briefs: Trial briefs may be filed by each party. In the absence of a specific
order of the Court, trial briefs are not required, but are welcomed. The briefing
should utilize Fifth Circuit and/or Supreme Court authority or relevant state
authority to address the issues the parties anticipate will arise at trial.

NOTE: Deadlines in this order regarding pretrial materials are dates for filing or
delivery, not mailing dates.

9. Exchange of Exhibits: No later than August 28, 2024, counsel for each party

intending to offer exhibits shall exchange a complete set of marked exhibits

(including demonstrative exhibits) with opposing counsel and shall deliver a set of

marked exhibits to the Court’s chambers (except for large or voluminous items

that cannot be easily reproduced).

10. Settlement Conference and Status Report:

a. Settlement Conference: No later than August 28, 2024 the parties and their
respective lead counsel shall hold a face-to-face meeting to discuss settlement of
this case. Individual parties and their counsel shall participate in person, not by
telephone or other remote means. All other parties shall participate by a
representative or representatives, in addition to counsel, who shall have unlimited
settlement authority and who shall participate in person, not by telephone or other
remote means. If a party has liability insurance coverage as to any claim made

3
This does not change the sequential manner in which each side should number its exhibits. In
other words, a party should not separately number its exhibits into “objected to” and “unobjected to”
categories.
4
“Annotated” means that each conclusion of law shall be accompanied by citation to statutory or
case authority. It is not sufficient to submit a proposed conclusion of law without citation to supporting
authority.
5
See id.

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against that party in this case, a representative of each insurance company providing
such coverage, who shall have full authority to offer policy limits in settlement,
shall be present at, and participate in, the meeting in person, not by telephone or
other remote means. At this meeting, the parties shall comply with the requirements
of Local Rule 16.3.

b. Joint Settlement Report: Within seven days after the settlement conference,
the parties shall jointly prepare and file a written report, which shall be signed
by counsel for each party, detailing the date on which the meeting was held, the
persons present (including the capacity of any representative), a statement
regarding whether meaningful progress toward settlement was made, and a
statement regarding the prospects of settlement.

11. Pretrial Conference: A pretrial conference will be conducted, in person, if the

Court determines such a conference is necessary. If the Court anticipates imposing

time limits on the presentation of evidence that significantly reduces the parties’

estimated trial length, the Court will schedule a pretrial conference and advise of

such deadlines so that counsel will have reasonable notice of such limits. Lead

counsel for each party must attend, or, if the party is proceeding pro se, the party

must attend. Fed. R. Civ. P. 16 (c)(1) & (e). Lead counsel and pro se parties must

have the authority to enter into stipulations and admissions that would facilitate the

admission of evidence and reduce the time and expense of trial. Id. All pretrial

motions not previously decided will be resolved at that time, and procedures for

trial will be discussed. At the final pretrial conference, it should be possible to

assign the specific date for trial during the four-week docket. Telephone calls

about the probable trial date prior to the final pretrial conference will not

likely be beneficial to counsel or the Court staff.

12. Modification of Scheduling Order: As addressed above, this Order shall control

the disposition of this case unless it is modified by the Court upon a showing of

good cause and by leave of court. Fed. R. Civ. P. 16(b)(4). Any request that the

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trial date of this case be modified must be made (a) in writing to the Court, (b)

before the deadline for completion of discovery, and (c) in accordance with the

United States District Court for the Northern District of Texas Civil Justice

Expense and Delay Reduction Plan ¶ V and Local Rule 40.1 (motions for

continuance must be signed by the party as well as by the attorney of record).

13. Sanctions: Should any party or counsel fail to cooperate in doing anything

required by this Order, such party or counsel or both may be subject to sanctions.

If the plaintiff does not timely file the required (or other) pretrial material, the case

will be dismissed. If the defendant/third party does not timely file the required (or

other) pretrial material, a default will be entered or the defendant/third party will

not be permitted to present witnesses or exhibits at trial. Fines or other sanctions,

if appropriate, may also be imposed under Rule 16(f). Failure to list a witness,

exhibit, or deposition excerpt as required by this Order shall be grounds for

exclusion of that evidence. This does not apply to testimony, exhibits, or deposition

excerpts offered for impeachment; further, the use of unlisted witnesses, exhibits,

or deposition excerpts for rebuttal shall be permitted if the attorneys could not have

reasonably anticipated their need for that evidence.

14. Electronic Filing Procedures: This case has been designated for enrollment in

the Electronic Case Filing System (CM/ECF). (For more information on the ECF

system, please see http://www.txnd.uscourts.gov/filing/ecf.html). Now that the

case is designated an ECF case, all documents must be filed electronically;

however, the Court still requires that courtesy copies of dispositive motions (and

accompanying briefs and appendices) be sent to Chambers. Proposed orders are

required to be submitted with EVERY motion. (Modification to Local Rule
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7.1(c)). Proposed orders must be submitted via e-mail in a WordPerfect-compatible

format as instructed in the CM/ECF system’s “Proposed Orders” Event. The

proposed orders must be e-mailed to: O’Connor_Orders@txnd.uscourts.gov.

Include the case number and the document number of the referenced motion in the

subject line.

15. Citations: All briefs filed with the Court shall comply with the most recent edition

of The Bluebook: A Uniform System of Citation. Particularly, counsel are directed

to provide, where applicable, the subsections of cited statutes, and to provide

pinpoint citations when citing cases, i.e., provide the page where the stated legal

proposition can be found. See Bluebook Rules 3.2-3.4 (Columbia Law Review

Ass’n et al. eds, 20th ed. 2015) (regarding pinpoint citations and subsections).

Furthermore, if a brief contains citations to unpublished opinions or to LEXIS,

counsel must attach copies of those cases to the brief.

16. Notice: Each attorney of record and any unrepresented party must review and

adhere to the Local Civil Rules of the Northern District of Texas, which may be

accessed at http://www.txnd.uscourts.gov/rules/localrules/lr_civil.html.

Additionally, each attorney of record and any unrepresented party must review and

abide by the standards of litigation conduct for attorneys appearing in civil actions

in the Northern District of Texas, as outlined in Dondi Properties Corp. v.

Commerce Savings & Loan, 121 F.R.D. 284 (N.D. Tex. 1988) (en banc), which

may be accessed at http://www.txnd.uscourts.gov/publications/index.html.

17. Inquiries: Questions relating to this scheduling order or legal matters should be

presented in a motion, as appropriate. Questions regarding electronic notice or

electronic case files shall be directed to the Help Desk at 1-866-243-2866. If any
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electronic equipment is needed in the courtroom, notify Brian Rebecek, Fort Worth

Division Manager, at 817-850-6613.

SO ORDERED on this day of , 2024.

___________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE

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