united states district court western district of oklahoma local civil ...

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF OKLAHOMA 

LOCAL CIVIL RULES COMMITTEE 

2008 AMENDED REPORT 

Submitted on December 31, 2008, by: 

Honorable Bob Bacharach, Chairperson 

Bob Baron 

Tim Bomhoff 

Christine Cave 

Bob Dennis, Court Clerk 

Professor Steven Gensler 

Joe Hampton 

Steve Mansell 

Sue Noland 

Bob Troester

Table of Contents 

1. LCvR 5.2(a) 

A. The Proposed Change .........................................1 

B. Reason for the Change.........................................1 

2. LCvR 7.1(d) 



3. LCvR 16.1(a)(1) 



4. LCvR 16.1(b)(2) 



5. LCvR 16.1(c) 



6. LCvR 16.2 



7. LCvR 16.3 


i


8. LCvR 55.1 

A. The Proposed Change ........................................22 

B. Reason for the Change........................................22 

9. LCvR 83.6(c) 



10. Appendix II - Joint Status Report and Discovery Plan 



11. Appendix III - Scheduling Order 



12. Appendix IV - Final Pretrial Report 



ii

Proposed Amendments (2008) 

1. LCvR 5.2(a) 

A. The Proposed Change 

All papers presented to the Clerk for filing by electronic means or in paper 

form shall be double-spaced, if typewritten, using only one side of the paper 

and a paper size of 8 ½ inches wide and 11 inches long. All papers shall be 

clearly legible. All pleadings, motions, and briefs shall be formatted in 

accordance with LCvR 7.1(c), (d) & (e). 

B. Reason for the Change 

2. LCvR 7.1(d) 

Formatting requirements can be found in multiple places in the Local Civil 

Rules, such as Rule 5.2(a) and Rule 7.1(c), (d) and (e). As a result, attorneys 

can easily believe that they are in compliance because they have conformed 

with the formatting requirements of the rule, while overlooking the other rule 

governing formatting. In 2006, the Committee considered consolidation of the 

two sections into one, but was concerned that attorneys familiar with the rules 

as they existed at that time could be confused by the change. To avoid 

unnecessary confusion and help guide attorneys to both provisions dealing 

with the form of papers presented for filing, the Committee proposes that each 

rule cross-reference the other. 


(d) 

Font Size and Margins. For all pleadings, motions, and briefs the print 

style, including footnotes, shall not be less than 13-point type, and 

margins shall be a minimum of one inch on the top, bottom, and sides. 

Additionally, these documents shall comply with the format 

requirements in LCvR 5.2. 


Formatting requirements can be found in multiple places in the Local Civil 

Rules, such as Rule 5.2(a) and Rule 7.1(c), (d) and (e). As a result, attorneys 

can easily believe that they are in compliance because they have conformed 

with the formatting requirements of the rule, while overlooking the other rule 

governing formatting. This confusion is exacerbated by the fact that Federal

3. LCvR 16.1(a)(1) 

Rule of Civil Procedure 5 addresses filing, but does not address formatting 

except to say that the Court Clerk cannot decline to file papers based on form 

defects. Federal Rule of Civil Procedure 7 does discuss the form of motions 

and other papers. Therefore, a practitioner could reasonably assume that the 

formatting requirements in the local civil rules are found solely in Rule 7.1. 

In 2006, the Committee considered consolidation of the two sections into one, 

but was concerned that attorneys familiar with the rules as they existed at that 

time could be confused by the change. To avoid unnecessary confusion and 

help guide attorneys to both provisions dealing with the form of papers 

presented for filing, the Committee proposes that the local rules crossreference 

one another. 


(1) Preparation for Status and Scheduling Conferences. Prior to the first 

status and scheduling conference, tTrial counsel for all parties, and pro 

se parties, if any, shall confer and prepare a Joint Status Report and 

Discovery Plan in the form provided as Appendix II. It shall be the 

duty of counsel for the plaintiff to arrange the joint preparation of 

this document and the duty of all counsel and pro se parties to 

jointly participate in the preparation. This Joint Status Report and 

Discovery Plan will be prepared, signed jointly, and filed as a single 

document with the Clerk of the Court not later than seven calendar 

days prior to the status and scheduling conference, unless otherwise 

ordered by the Court. 

In connection with the preparation of the document: 

(a) 

(b) 

(c) 

all counsel shall discuss ADR with their client(s), 

all counsel and pro se litigants, if applicable, shall discuss 

ADR with one another, and 

all counsel and pro se litigants, if applicable, shall indicate 

whether the party elects to have the action referred to a 

specific procedure, if appropriate. 

2

Certification of these discussions must be submitted in conjunction 

with the Joint Status Report and Discovery Plan in the form 

provided as Appendix II. 

The Joint Status Report and Discovery Plan shall include, to the extent 

then known, the contentions of each party and the issues of fact and 

law. It shall also contain a list of all exhibits, witnesses, and discovery 

materials to the extent then known, together with time estimates to 

complete discovery and trial. It shall be the duty of counsel for the 

plaintiff or pro se plaintiff to arrange this joint preparation and the duty 

of all counsel and pro se parties to jointly participate in and facilitate it. 

The information exchanged shall be incorporated into the Joint Status 

Report and Discovery Plan. This Joint Status Report and Discovery 

Plan will be prepared and signed jointly and filed as a single document 

with the Clerk of Court not later than seven calendar days prior to the 

status and scheduling conference, unless otherwise ordered by the 

Court. 


In 2007, the Court eliminated legal issues, witness lists, and exhibit lists in the 

joint status report and discovery plan. The proposed amendment would 

conform the local civil rule to the existing form. 

The language regarding “issues of fact” does not match the language on the 

form in Appendix II. Thus, the Committee proposes deletion of the phrase, 

“issues of fact,” in LCvR 16.1(a)(1). 

The Committee proposes modification of LCvR 16.3 to focus the rule on 

mediations. With that change, the Committee suggests moving the discussion 

of ADR in LCvR 16.3(b) to LCvR 16.1(a)(1). This change requires some 

stylistic changes in LCvR 16.1(a)(1). For example, references to the 

contentions and time estimates would be deleted from the rule. The 

Committee believes this language is unnecessary because the form, Appendix 

II, already requires submission of contentions and time estimates for the trial. 

3

4. LCvR 16.1(b)(2) 


(2) The clerk who keeps the minutes of the status and scheduling 

conference shall have forms available conforming to the form provided 

herein as Appendix III, whereby the time and/or date fixed by the Court 

for the performance of specified duties may be inserted. Upon request, 

counsel will be supplied with a copy of such form so that they may 

make their own notations of deadlines and of other orders prescribed by 

the judge presiding over the conference. Such executed form, when 

approved by the Court and filed, shall constitute the order of the Court 

as to such schedules without the necessity of filing any other order to 

the same effect. Unless otherwise directed by the assigned judge, the 

form and content of a jointly prepared, proposed Final Pretrial Report, 

conforming to the sample form provided herein as Appendix IV, shall 

be filed by plaintiff’s counsel on or before the first day of the month 

that the case is scheduled for trial. Plaintiff’s counsel shall file with the 

Court the jointly prepared Final Pretrial Report along with an extra 

copy for the Court and shall be accompanied by and shall submit a 

proposed order approving the Report. The executed Final Pretrial 

Report, when approved by the Court, shall constitute an order of the 

Court as to all matters contained therein. 


5. LCvR 16.1(c) 

The existing language is not technically accurate. 


(c) Authorization of Alternative Dispute Resolution. The Court 

authorizes Alternative Dispute Resolution methods, including 

mediation, judicial settlement conferences, and summary jury 

trials. 

4


6. LCvR 16.2 

The suggested language is virtually identical to the existing provision in LCvR 

16.3(a). The proposal would involve restructuring of LCvR 16.3 to address 

private mediation. Express authorization of alternative dispute resolution is 

necessary under 28 U.S.C. § 651(b). 


(f) Requests for Relief. A request for relief from any aspect of this rule 

shall be made to the settlement judge in the manner set forth in the settlement 

conference order. 

(g) Sanctions. Failure to comply with any provision of this rule or the 

settlement conference order may result in the imposition of sanctions. 

(f) Confidentiality and Limitations of Use of Settlement Information. 

All communications made in connection with a settlement conference, 

other than as stated below, shall be considered confidential. Unless 

otherwise permitted under Fed.R.Evid. 408 or any other provision of 

federal law, communications made in connection with a judicial 

settlement conference may not be used by any party in the trial of the 

case. Any motion by counsel or reports by the settlement judge, including 

those concerning noncompliance with the local rules, shall not violate 

confidentiality. 

(g) Requests for Relief. A request for relief from any aspect of this rule 

shall be made to the settlement judge in the manner set forth in the 

settlement conference order. 

(h) Sanctions. Failure to comply with any provision of this rule or the 

settlement conference order may result in the imposition of sanctions. 


The confidentiality provision currently appears in LCvR 16.3, and the 

proposed amendment would add the clause to LCvR 16.2. The proposed 

change to LCvR 16.3 would confine that rule to private mediations. The 

5

7. LCvR 16.3 

provisions involving sanctions and requests for relief in LCvR 16.2 would 

simply be renumbered. 


(a) 

(b) 

Authorization. The Court authorizes Alternative Dispute Resolution (ADR) 

methods including mediation, judicial settlement conferences, and summary 

jury trials. 

Certification of ADR Discussions in the Joint Status Report and Discovery 

Plan. Prior to the first status and scheduling conference: 

(1) all counsel shall discuss ADR with their client(s), 

(2) all counsel and pro se litigants, if applicable, shall discuss ADR with 

one another, and 

(3) all counsel and pro se litigants, if applicable, shall indicate whether the 

party elects to have the action referred to a specific procedure, if 

appropriate. 

Certification of these discussions must be submitted in conjunction with the 

Joint Status Report and Discovery Plan filed pursuant to LCvR16.1. 

(c) 

Confidentiality and Limitations of Use of Settlement Information. All 

communications made in connection with a settlement conference shall be 

considered confidential. Unless otherwise permitted under Fed.R.Evid. 408 

or any other provision of federal law, communications made in connection 

with ADR may not be used by any party in the trial of the case. 

Any motion by counsel or reports by a neutral including those concerning noncompliance 

with the local rules shall not violate confidentiality. 

Court-Ordered Mediation 

(a) 

Selection of the Mediator. In a mediation ordered by the Court, 

the parties may select any mediator that they agree upon. If the 

parties are unable to agree, they may contact the Court’s ADR 

Coordinator for assistance in the selection of a mediator. 

6

(b) 

Required Attendance. Unless otherwise directed by the designated 

mediator, the following shall attend any mediation ordered by the 

Court: 

(1) Named Parties. Each named party shall attend the 

mediation, regardless of the availability of insurance. If any 

party is not a natural person, a representative of that party 

with knowledge of the relevant facts shall attend the 

mediation. 

(2) Governmental Body. If approval by a Governmental Body 

is required by law to authorize settlement, attendance of at 

least one current member of the Governmental Body is 

required. “Governmental Body” as used in this subsection 

(b)(2) means a governmental board of directors, trustees, 

commissioners, managers, or other similar officers. 

(3) Insurers and/or Subrogors. Insurers and/or subrogors of 

any party shall attend the mediation. Counsel for any such 

party is responsible for notifying the insurer and/or 

subrogor of this requirement. 

(4) Lead Trial Counsel. Lead trial counsel for each named 

party shall attend the mediation. 

(c) 

Required Settlement Authority. Unless otherwise directed by the 

designated mediator, each party must attend a court-ordered 

mediation with full settlement authority. 

(1) Definition of “Full Settlement Authority” for the Plaintiff. 

For a plaintiff, such representative must have final 

settlement authority, in the representative’s discretion, to 

authorize dismissal of the case with prejudice or to accept a 

settlement amount down to the defendant’s last offer. 

(2) Definition of “Full Settlement Authority” for the Defendant. 

For a defendant, the term “full settlement authority” 

requires the defendant to have final settlement authority to 

commit the party to pay, in the representative’s discretion, 

7

an amount up to the plaintiff’s prayer or up to the plaintiff’s 

last demand, whichever is lower. 

(d) 

Mediation Statements. Unless otherwise directed by the designated 

mediator in a court-ordered mediation: 

(1) each party shall submit a mediation statement to the 

assigned mediator and serve counsel for all other parties at 

least three business days before the mediation, and 

(2) the statement shall not exceed five pages double-spaced and 

shall set forth the relevant positions of the parties 

concerning factual issues, legal issues, and relief requested. 

(e) 

(f) 

(g) 

Mediator Report. Unless otherwise ordered, the parties shall 

ensure the filing of the mediator’s report in a court-ordered 

mediation. The filing shall be on the form approved by the Court 

no later than five business days after completion of the mediation. 

Confidentiality. All communications made in connection with a 

court-ordered mediation, other than as stated below, shall be 

considered confidential. Unless otherwise permitted under Fed. R. 

Evid. 408 or any other provision of federal law, communications 

made in connection with a court-ordered mediation may not be 

used by any party in the trial of the case. Any motion by counsel 

or reports by the designated mediator, including those concerning 

noncompliance with the local rules, shall not violate confidentiality. 

Sanctions. In a court-ordered mediation, failure to comply with 

any provision of this Rule may result in the imposition of sanctions. 


The proposed amendments resemble the 2003 changes to the local civil rule 

on settlement conferences (LCvR 16.2). For mediations that are ordered by 

the Court, the amendments would: 

! add a definition of “full settlement authority,” 

! authorize waiver of certain requirements by the mediator, and 

! require the filing of a mediator’s report. 

8

These amendments are prompted by the Committee’s survey of practitioners 

and mediators in February 2008. Over 70% of the respondents favored a local 

civil rule on mediations. Among these attorneys, over 80% supported the 

inclusion of rules on attendance and settlement authority. Among the 

individuals who have served as mediators within one year, support for rules on 

these two subjects was even greater. 

At the same time, the Committee recognizes that some practitioners may prefer 

to utilize a mediation by agreement, without oversight by the Court or 

application of local civil rules. Thus, the new local civil rule would govern 

only when a mediation is ordered by the Court. 

The proposed rule would add a provision in LCvR 16.3(a) to create flexibility 

in the approach when the parties are unable to agree on a mediator. Some 

judges may prefer the ADR coordinator to submit a list of mediators and direct 

the attorneys to “strike” individuals until they are left with only one. Other 

judges may prefer the parties to address the issue through a formal motion. 

The proposed rule would create flexibility and allow individual judges to 

address the issue however they wish. 

9

LOCAL CIVIL RULES SURVEY REPORT 

JUNE 2008 

In February 2008, the Local Civil Rules Committee distributed a short survey on local 

rules addressing mediation. The survey went to all attorneys in the CM/ECF system and asked 

the following four questions: 

(1) During the past 12 months, have you: 

a. participated in mediations as counsel for a party and/or 

b. served as a mediator 

(2) Are you in favor of having a local rule that applies to mediations 

(3) If you favor a local rule addressing mediation, indicate all areas/topics you feel 

the provision should address: 

a. Required attendees 

b. Required settlement authority 

c. Requests to be excused from attendance or settlement authority requirements 

d. Communication with mediator 

e. Other topics. 

(4) During the past 2 years, have you participated in any of the following ADR 

proceedings 

a. Early neutral evaluation 

b. Court-annexed non-binding arbitration 

c. Summary jury trial 

d. Summary bench trial 

e. Executive mini trial 

f. Special master proceeding. 

The Committee received 362 responses. The responses have been tabulated and analyzed 

for five different populations of survey respondents: 

(1) All survey respondents; 

(2) The respondents who indicated that they had participated in mediation during the 

past 12 months (i.e., the respondents who answered “yes” to Question 1a); 

10

(3) The respondents who indicated that they had served as a mediator during the past 

12 months (i.e., the respondents who answered “yes” to Question 1b); 

(4) The respondents identified by the Committee as experienced mediation 

participants; and 

(5) The respondents identified by the Committee as experienced mediators. 

Summary of Results 

A substantial majority of the survey respondents favor local rules addressing mediation. 

Overall, 72.9% of respondents favor local rules on this subject. When the question is posed to 

the subset populations, that percentage held within 1% for all but the last group. Only 2 out of 7 

experienced mediators favor local mediation rules, though the very small sample size makes that 

result hard to extrapolate. 

A substantial majority of those who favor local rules support each of the specific local 

rules topics identified in Question 3. Support was highest for local mediation rules covering 

required attendance (87.7%) and required settlement authority (84.5%). Support levels remained 

generally constant across the subset populations. 

Out of 362 respondents, 51 favor local mediation rules topics not specified in Question 3. 

The respondents who had served as mediators (including experienced mediators) were the most 

likely to favor additional topics. Confidentiality and cost were the most frequently mentioned 

topics. A full list of the additional topics suggested is attached as Appendix A. 

Question 4 listed six forms of non-mediation ADR proceedings and asked whether the 

respondents had participated in any of those proceedings during the past two years. The 

participation rate for each of those proceedings – individually – was small. The most common 

were early neutral evaluation (7.7%) and court-annexed nonbinding arbitration (6.4%). In the 

aggregate, however, 94 out of 364 respondents (26%) reported participating in at least one nonmediation 

ADR proceeding during the past two years. 

11

Analysis of Results Received from All Survey Participants 

Table 1 

All Survey Participants 

N=362 

Question 1: “During the past 12 months, have you . . .” 

Number of 

Participants 

Percentage of All 

Survey Participants 

a. Participated in Mediation in past 12 months 277 76.5% 

b. Served as a mediator in the past 12 months 36 9.9% 

Question 2*: “Are you in favor of having a local rule that applies 

to mediations” 


Participants 

Percentage of All Survey 

Participants 

a. Yes 264 72.9% 

b. No 94 26%* 

Question 3: “If you favor a local rule addressing mediation, 

indicate all areas/topics you feel the provision should address.” 


Participants 

(out of 264) 

Percentage 

of 

Participants 

Who Favor 

Rules** 

Percentage 

of All 

Survey 

Participants 

a. Required attendees 243 87.7% 67.1% 

b. Required settlement authority 234 84.5% 64.6% 

c. Requests to be excused from attendance or settlement authority 206 74.4% 56.9% 

requirements 

d. Communication with mediators 186 67.1% 51.4% 

e. OTHER topics (see Appendix A for specific suggestions) 51 18.4% 14.1% 

Question 4: “During the past 2 years, have you participated in any 

of the following ADR proceedings” 


Participants 


Percentage of All Survey 

Participants 

a. Early neutral evaluation 28 7.7% 

b. Court-annexed non-binding arbitration 23 6.4% 

c. Summary jury trial 11 3% 

d. Summary bench trial 12 3.3% 

e. Executive mini trial 5 1.4% 

f. Special master proceeding 15 4.1% 

*4 participants declined to answer question number 2. 

**Those who responded that they favor rules applying to mediation in question 2. 

12

Analysis of Responses Received From Persons Who Participated 

in Mediation in the Past 12 Months 

Table 2 

All Mediation Participants 

N=277 

Question 2: “Are you in favor of having a local rule that applies to 

mediations” 


Participants* 

Percentage** 

a. Yes 203 73.3% 

b. No 70 25.3% 

Question 3: “If you favor a local rule addressing mediations, 

indicate all areas/topics you feel the provision should address.” 


Participants 


Percentage 


Mediation 

Participants 

Who Favor 

Rules*** 

Percentage 


Mediation 

Participants 

a. Required attendees 191 94.1% 69% 


c. Requests to be excused from attendance or settlement authority 158 77.8% 57% 

requirements 

d. Communication with mediators 138 68% 49.8% 

e. OTHER topics 37 18.2% 13.4% 

Question 4: “During the past 2 years, have you participated in any 



Participants 


Percentage** 



c. Summary jury trial 10 3.6% 




*4 participants declined to answer question number 2. 

**Based on the total number of participants in this analysis (n=277). 

***Those who responded that they favor rules applying to mediation in question 2. 

13

Analysis of Responses Received From Persons Who 

Served as a Mediator in the Past 12 Months 

Table 3 

All Mediators 

N=36 

Question 2: “Are you in favor of having a local rule that 

applies to mediators” 


Participants 

Percentage 

a. Yes 26 72.2% 

b. No 10 27.8% 

Question 3: “If you favor a local rule addressing mediation, 

indicate all areas/topics you feel the provision should 

address.” 


Participants 


Percentage of 

Mediators Who 

Favor Rules** 

Percentage 


Mediator 

Participants* 

a. Required attendees 25 96.2% 69.4% 


c. Requests to be excused from attendance 

20 80% 55.6% 

or settlement authority requirements 


e. OTHER topics 8 32% 22.2% 

Question 4: “During the past two years, have you 

participated in any of the following ADR proceedings” 


Participants 

Percentage 







*Based on the total number of participants in this analysis (n=36). 


14

Analysis of Responses Received From Persons the Committee Identified as Being 

Experienced Mediation Participants 

Table 4 

Experienced Mediation Participants 

N=103 


mediations” 


Participants 

Percentage* 

a. Yes 75 72.8% 

b. No 26 25.2% 

Question 3: “If you favor a local rule addressing mediation, indicate 

all areas/topics you feel the provision should address.” 


Participants 


Percentage 


Experienced 

Mediation 

Participants 

Who Favor 

Rules** 

Percentage 


Experienced 

Mediation 

Participants* 

a. Required attendees 67 89.3% 65% 

b. Required settlement authority 67 89.3% 65% 

c. Requests to be excused from attendance or settlement authority 59 78.7% 57.3% 

requirements 


e. OTHER topics 17 22.7% 16.5% 

Question 4: “During the past two years, have you participated in any 



Participants 

Percentage* 





e. Executive mini trial 0 0% 

f. Special master proceeding 0 0% 



15

Analysis of Responses Received From Persons the Committee Identified as Being 

Experienced Mediators 

Table 5 

Experienced Mediators 

N=8 


mediations” 


Participants 

Percentage* 

a. Yes 2 25% 

b. No 5 62.5% 

Question 3: “If you favor a local rule addressing mediation, indicate 

all areas/topics you feel the provision should address.” 


Participants 


Percentage 


Experienced 

Mediators 

Who Favor 

Rules** 

Percentage 


Experienced 

Mediator 

Participants* 

a. Required attendees 2 100% 25% 

b. Required settlement authority 2 100% 25% 

c. Requests to be excused from attendance 

2 100% 25% 

or settlement authority requirements 

d. Communication with mediators 2 100% 25% 

e. OTHER topics 2 100% 25% 

Question 4: “During the past two years, have you participated in any 



Participants 

Percentage* 

a. Early neutral evaluation 0 0% 

b. Court-annexed non-binding arbitration 0 0% 

c. Summary jury trial 0 0% 

d. Summary bench trial 0 0% 

e. Executive mini trial 0 0% 

f. Special master proceeding 0 0% 



16

LOCAL CIVIL RULES SURVEY REPORT 

JUNE 2008 

Appendix 

Question 3 asked survey participants to identify any additional topics they thought should 

be addressed in local mediation rules. Fifty-one participants submitted specific comments in 

response. Unless otherwise noted, the responses are reproduced verbatim. 

The following table contains the responses. The four columns on the right side of the 

table represent the following sub-groups: 

1. The respondents who indicated that they had participated in mediation during the past 12 

months (i.e, the respondents who answered “yes” to Question 1a). 

2. The respondents who indicated that they had served as a mediator during the past 12 

months (i.e., the respondents who answered “yes” to Question 1b). 

3. The respondents identified by the Committee as experienced mediation participants. 

4. The respondents identified by the Committee as experienced mediators. 

Many survey respondents met the criteria for multiple sub-groups. For example, the 

response listed as #2 was submitted by a participant who self-identified as having participated in 

mediation during the prior 12-month period and who the Committee identified as being an 

experienced mediation participant. When a survey respondent met the criteria for two or more 

sub-groups, we marked the column for each one. 

# Response 1 2 3 4 

1. Who pays the mediator. X 

2. A confidentiality rule similar to LCvR 16.2(g)- one that would protect, 

X X 

for example, amounts of offers from being introduced into evidence. 

3. The mediation. 

4. Deadline to engage in mediation prior to trial. X X 

5. Whether mediation is required. 

6. Pre-disclosure of who will be attending on behalf of each party, which 

cannot be changed without leave of Court. Pre-mediation 

communications with mediator confidential unless the parties agree 

otherwise. 

7. Required mediation statement. Confidentiality requirements. No 

telephone attendance (all representatives must appear in person). 

Good faith negotiations. Parties split the costs of mediation. 

17 

X 

X 

X X X


8. Early mediation needs to be required and set by the Court to determine 

if a case may go away before clients spend a lot of money on discovery X X X 

and other issues. 

9. Many times the parties don't want to ask for it as they believe it 

signifies a weakness in the case and in many cases there are no 

smoking guns or amazing discovery issues it’s just a matter of how 

much. A good mediator often can lead parties to settlement before the 

X X X 

process of the adversarial system has fomented the attitudes of the 

parties. 

10. Form and content of mediation memo. Selection of mediator. X X 

11. Confidentiality, mediation statements, exchange of pre-mediation 

offers, and good faith participation. 

X 

12. Confidentiality, preparation, execution and enforcement of 

Agreement(s) reached in mediation, time limits for preparation and 

execution oand [sic] delivery of the same. NO communication of 

X X 

results of mediation to judge other than to report success or not. 

13. Good faith to be used in the mediation process. Mediation not 

effective while dispositive motions pending. 

X 

14. Confidentiality of mediation written statements and oral 

representations to the mediator or parties; procedure to assure X 

confidentiality of settlement conditions, where appropriate. 

15. Necessity of being able to remain until mediator declares an impasse. 

That full settlement authority means the ability to take nothing as 

X 

plaintiff or to pay the full amount of the claim if defendant. 

16. Deadline to mediate. 

17. Format of the mediation conference. Requirement for submission of 

written mediation statements in advance. Advance exchange of the 

portions of the statements that contain the party's version of the facts 

(including any exhibits to be presented), issues of law and contentions, 

X X 

but not the portions discussing negotiations, willingness to 

compromise or anything relating to the party's negotiation strategy. 

18. Allow attendance by speaker telephone if justified. Make mediation 

mandatory unless dispensed of by motion and order. Statements made 

are inadmissible in any other aspect of case. Written agreement must 

result from session or a written statement of impasse. Mediator to be 

only person who can declare impasse. 

19. Requirement that all mediator statements be exchanged with all 

parties. 

X 

20. Rule should not require parties to conduct private mediation but only 

apply if parties voluntarily elect to conduct private mediation or if X X 

court otherwise orders parties to conduct private mediation. 

21. Sanctions for failing to comply with rules. Allowance for good cause 

to be shown why mediation should not be required in a particular case. 

18


22. Treatment of statements made in the course of mediation (i.e. 

confidential or not). 

23. Whether mediation statements are exchanged between parties or sent 

only to the mediator. 

X 

24. Notice, Costs, Scheduling. X X 

25. Confidentiality; consequences of failure to appear for scheduled 

mediation; payment of mediation fees; selection of mediator. 

X X 

26. Fees and Qualification of mediators. X X 

27. Mediation can take the place of court-ordered Settlement Conference; 

Qualifications of mediators. 

X X 

28. Information to be exchanged prior to the mediation. Timeframe for 

completing mediation and/or responses to proposed settlement offers. 

Continuation of mediation where necessary (e.g., to gather additional 

info). Payment of costs of mediation. 

29. Confidentiality. 

30. The last mediation I attended was less than a week before scheduled 

trial. As both parties were in "trial mode" it made it more difficult to 

negotiate a resolution, although we were successful. I would think that 

a court-ordered mediation towards the end of discovery, but before 

motions were to be filed might be better received by counsel, if not by 

clients. Even if the case did not settle, the parties would have a 

X 

magistrate or adjunct keeping tabs on the case and continuing to 

encourage settlement conferences conducted at or near the end of fact 

discovery to be more fruitful than those forced on the parties at the eve 

of trial. 

31. Selection of mediator, provisions for who may attend outside of the 

parties and insurance representatives, how costs are to be divided for X X 

mediator. 

32. Penalties for not complying with the Rule in good faith, such as failing 

to have full settlement authority or appearing with someone not 

authorized to make decisions, i.e. having to call back to the office. 

That is not someone with sufficient authority and is a waste of 

X X 

everyone's time. If Defendants and insurers do not send THE person 

with the authority there should be some sanction imposed. 

33. Require mediation statement be provided to all parties prior to the 

mediation with ability to respond to define clearly the factually 

contested issues. The earlier the exchange of statements prior to 

X X 

mediation the better. 

34. Court's authority to enforce settlement; requirement of written 

memorandum or outline of settlement terms completed at settlement X 

conference, signed by authorized attendees. 

35. Mediator must have cookies. 

19


36. I believe mediation should be the required ADR in every case and that 

the mediation date precede the scheduled settlement conference. 

Based on experience, I have found that mediation prior to the 

settlement conference is the most likely ADR to result in settlement. 

With mediation, the parties are able to choose the date, time and place 

and therefore, it is almost always the preferred method to attempt X X 

settlement from the client's standpoint. The fact that the mediation is 

held prior to the court settlement conference increases the chance that 

the case will settle because the [sic] know that, if the case does not 

settle at mediation, the settlement conference will follow, resulting in 

additional expense. 

37. Statements provided by both parties and time frame; telephonic 

participation, written statement, if any, to avoid subsequent dispute. 

38. Allocation of Costs of Mediation (if not settled at Mediation, 

Defendant pays FULL cost). 

X 

39. I recently experienced a "first" during a voluntary mediation in a state 

court case. After a long and seemingly production [sic] of mediation, 

the parties and mediator, because of scheduling issues, agreed to 

resume the mediation on a day certain the following week. Before the 

date of resumption of mediation, opposing party wrote a letter to 

mediator and me to advise that they had decided not to return for the X X 

scheduled mediation and submitted a settlement proposal in the letter 

which was quite different from where the parties were when they left 

the first session of mediation. This probably falls under the 

requirement to participate "in good faith"; however, perhaps a rule 

could address the situation more specifically. 

40. Possible guidelines for mediation statements and timing. X X 

41. Whether or not required to send statement to other parties. Ability to 

send a confidential statement to mediator for "eyes only." Indemnity X X 

for mediators. 

42. Attendance by telephone. 

43. The rule should be voluntary with State agencies/officials, especially 

in cases challenging state statutes as officials are not going to have the 

authority to agree that a statute is unconstitutional, etc. And, the rules 

should exclude inmate cases even when the inmate is represented by 

counsel. 

44. A local rule should provide for the entry of an order having the 

requirements listed above. Putting these items in an Order from the 

Court makes client management issues far easier than if such items are 

X X X 

rely [sic] in a court rule. 

20


45. Although I think encouraging mediation is good, I do not think it 

necessary to require mediation. When the program went into effect, 

many practitioners were unfamiliar with mediation. Now, most 

lawyers have been involved extensively in mediation. Often, the 

requirement of mediation has resulted in mediations occurring at the 

X X 

wrong time, and thus being unproductive. I believe it is important to 

have a local rule that maintains the confidentiality of communications 

during mediation. 

46. Sanctions for failure to negotiate in good faith. X 

47. Many expect use of mediation will only increase, as a manner of 

dealing [sic] legal disputes that may be less costly and more disposed 

to actual reconciliation. In that context, local rules would have at least 

two positive effects: (1) uniformity of practice (and thereby 

expectations), and (2) education (of the bar and the public). 

48. Payment of fees; submission of mediation statements. X 

49. Privilege-related issues, such as the possible disclosure and handling 

of privileged documents, so as to preserve the privilege, in the event of X 

litigation. 

50. A brief summary of the mediation session by the mediator should be 

presented to the court whether or not an agreement was reached. If 

mediation is not achieved, require the parties to submit to the mediator 

the specific reasons why mediation was not successful. 

51. Form and content of mediation statements to be provided to mediator 

by the parties. 

X 

21

8. LCvR 55.1 


Procedure for Obtaining Default Judgment. 

(a) Entry of Default by Court Clerk. To obtain an entry of default 

pursuant to Fed. R. Civ. P. 55(a), the party must file a “Motion for Entry of 

Default by the Clerk.” The motion shall recite the facts that establish service of 

process, and be accompanied by affirmations as to compliance with the 

Servicemembers Civil Relief Act, 50 U.S.C. App. § 501 et seq., and that the 

individual is neither an infant nor an incompetent person. No brief is required with 

this motion. Once a proper motion has been filed, the Court Clerk will prepare and 

enter default, after independently determining that service has been effected, that 

the time for response has expired, and that no answer, responsive pleading, or 

appearance has been filed. 

(b) Entry of Default Judgment. Once a party is in default, a default 

judgment pursuant to Fed. R. Civ. P. 55(b) may be requested by filing a motion for 

default judgment accompanied by a concise brief, a form of judgment, and an 

affidavit setting forth that movant’s claim is for a particular sum certain and the 

factual basis for such a claim. In its discretion, the Court may set a hearing on the 

motion with respect to which notice shall be provided by the party moving for 

default judgment in accordance with the requirements of Fed. R. Civ. P. 55(b). 

The Court Clerk shall not enter a judgment of default. 


The local rule is inconsistent with Federal Rule of Civil Procedure 55 in 

four respects: 

First, the local rule requires a motion for the Clerk’s certification of a 

default, and the federal rule does not require a motion. The result creates 

not only an inconsistency with the federal rule, but also practical problems. 

For example, the filing of a motion triggers the service requirement and 

response deadline in LCvR 7.1(g), even though Federal Rule of Civil 

Procedure 5(a) expressly provides that service is generally unnecessary for 

“a party who is in default for failing to appear.” In addition, the filing of a 

“motion” suggests the need for court action. But “[w]hen the prerequisites 

of Rule 55(a) are satisfied, an entry of default should be made by the clerk 

without any action being taken by the court.” 10A Charles Alan Wright, 

22

Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure: 

Civil § 2682 at 19 (3d ed. 1998) (footnote omitted). 

Second, the local rule adds a requirement for the requesting party to certify 

compliance with the Servicemembers Civil Relief Act and the competency 

of the defaulted party. These requirements apply to entry of a default 

judgment, but not to a certification of the default. One leading treatise 

explained: 

[S]ome courts may require that the affidavit [for certification 

of a default under Federal Rule of Civil Procedure 55(a)] state 

whether the defending party is a minor, incompetent person, 

or member of the uniformed services. This requirement does 

not really make sense at the entry-of-default stage of 

proceedings. Rule 55(a) does not limit entry of default 

against minors or incompetent persons. It is only at a later 

stage of the proceedings, when a claimant seeks entry of a 

default judgment, that such information becomes relevant. At 

that later time, Rule 55(b) will forbid entry of a default 

judgment against a minor or incompetent person unless the 

minor or incompetent is represented by a guardian or other 

representative who has appeared in the action. Similarly, the 

Servicemembers Civil Relief Act limits the entry of default 

judgments against members of the uniformed services. Under 

the Act, before the court may grant a default judgment, the 

plaintiff must file an affidavit with the court stating whether 

the defendant is a servicemember. However, there is no 

protection under the Act for entry of a default under Rule 

55(a) against a service member. 1 

10 James Wm. Moore, Federal Practice § 55.12[1], at 55-26 (3d ed. 2007) 

(citations omitted; emphasis in original). 

1 

The Soldiers’ and Sailors’ Civil Relief Act of 1940 § 200, 50 - Appendix U.S.C. § 520(1) 

states: “In any action or proceeding commenced in any court, if there shall be a default of any 

appearance by the defendant, the plaintiff, before entering judgment shall file in the court an 

affidavit setting forth facts showing that the defendant is not in military service.” The law does not 

address the Clerk’s certification of a default under Federal Rule of Civil Procedure 55(a). 

23

Third, the local rule requires an independent determination regarding 

service, which adds to the Clerk’s obligation under Federal Rule of Civil 

Procedure 55(a). 

Fourth, LCvR 55.1(b) prohibits the Clerk’s entry of a default judgment, 

while Federal Rule of Civil Procedure 55(b)(1) requires the Clerk to issue a 

default judgment in limited circumstances. 

The Western District of Oklahoma adopted the current version of the local 

rule in 2006 to create uniformity within the three federal district courts in 

Oklahoma. But the Northern, Eastern, and Western Districts of Oklahoma 

are the only courts in the country with a local rule like the current version. 

In contrast, the vast majority of federal district courts contain no local rules 

on certification of default or entry of a default judgment. 2 And six federal 

district courts have local rules which merely authorize the clerk to certify a 

default or issue a default judgment when permitted under Federal Rule of 

Civil Procedure 55(b)(1). 3 The proposal would eliminate the 

inconsistencies with the federal rule and defer to Rule 55, like the majority 

of courts. 

2 

These courts are the District of Colorado, District of New Mexico, Northern District of 

Alabama, Middle District of Alabama, Southern District of Alabama, Northern District of Georgia, 

Middle District of Georgia, Southern District of Georgia, Northern District of Florida, Middle 

District of Florida, Southern District of Florida, District of Columbia, District of Massachusetts, 

District of Maine, District of Connecticut, District of Delaware, District of New Jersey, Eastern 

District of Pennsylvania, Middle District of Pennsylvania, Western District of Pennsylvania, District 

of the Virgin Islands, District of Maryland, Middle District of North Carolina, Western District of 

North Carolina, Eastern District of Virginia, Western District of Virginia, Northern District of West 

Virginia, Southern District of West Virginia, Eastern District of Mississippi, Southern District of 

Mississippi, Western District of Mississippi, Northern District of Mississippi, Eastern District of 

Kentucky, Western District of Kentucky, Western District of Michigan, Eastern District of 

Tennessee, Middle District of Tennessee, Western District of Tennessee, Central District of Illinois, 

Northern District of Illinois, Southern District of Illinois, Northern District of Indiana, Southern 

District of Indiana, Eastern District of Wisconsin, Western District of Wisconsin, Eastern District 

of Arkansas, Western District of Arkansas, Eastern District of Missouri, Western District of 

Missouri, Northern District of Iowa, Southern District of Iowa, District of Minnesota, District of 

North Dakota, Eastern District of California, Northern District of California, Southern District of 

California, District of Hawaii, District of Idaho, District of Montana, District of the Marina Islands, 

District of Oregon, and District of South Dakota. 

3 

These courts are the District of Kansas, District of Utah, Eastern District of North Carolina, 

District of Arizona, District of Guam, and District of Nevada. 

24

9. LCvR 83.6(c) 


(c) Misconduct. Complaints of professional misconduct, including 

those referred by judges, shall be submitted to the Chief Judge in writing and shall 

state with particularity the circumstances out of which the charges arose. 

Complaints submitted by counsel are subject to Fed. R. Civ. P. 11. All other 

complaints of professional misconduct, except those submitted by judicial officers 

of this Court, shall be under oath. 

Upon receipt of a complaint regarding the professional conduct of an 

attorney, the Chief Judge or the designee of the Chief Judge shall determine 

whether: 

(1) The inquiry should be terminated because the question raised 

is unsupported or insubstantial; 

(2) The alleged professional misconduct justifies further inquiry 

and, for members of the Oklahoma Bar Association, the matter should be referred 

to the Office of the General Counsel of the Oklahoma Bar Association for 

investigation and prosecution by that Office, if warranted; 

(3) The alleged professional misconduct warrants consideration 

of prompt disciplinary action by this Court regarding the attorney’s right to 

practice before the Court, and the matter should be referred to the Court’s 

Committee on Discipline for investigation, notwithstanding concurrent reference 

of the matter to the Office of the General Counsel of the Oklahoma Bar 

Association; 

(4) The alleged professional misconduct of an attorney not a 

member of the Oklahoma Bar Association justifies further inquiry by the Court 

and should be referred to a committee on discipline appointed by the Court for 

investigation. Any attorney whose conduct in this Court is under investigation by 

the Committee on Discipline shall not be admitted pro hac vice until the pending 

investigation is concluded. 

Upon determination that an action is appropriate under subsections 

(c)(2), (3), or (4) above, the Chief Judge or the designee of the Chief Judge shall 

provide a copy of the written allegations to the attorney whose conduct is the 

subject of the complaint. Nothing herein contained in this rule shall limit the right 

25

of an individual judge to refer a matter to any bar association for disciplinary 

action or otherwise address the matter manage the cases assigned to that judge, 

which right shall include the authority to impose any sanctions, penalties, or other 

restrictions which may be appropriate in a particular case. 


The proposed amendment would expressly permit a judge to refer a 

misconduct concern to the Oklahoma Bar Association for investigation. 

On April 4, 1984, the Court adopted a local rule which required referral of 

misconduct to counsel for investigation and prosecution. 4 On April 1, 1996, 

the Court overhauled the local civil rules and, with minor stylistic changes, 

adopted the language that currently appears as LCvR 83.6(c). Order at pp. 

27-28, In the Matter of Local Court Rules, Misc. No. 9 (W.D. Okla. Feb. 8, 

1996) (en banc). 

The wording, which has existed for over twelve years, could be read to 

prevent an individual judge from referring attorney misconduct to the bar 

association. This interpretation could create a potential conflict with the 

judge’s obligation under the Oklahoma Rules of Professional Conduct, 

which makes reporting mandatory in certain situations. 5 The proposed 

4 

This rule stated: 

When misconduct or allegations of misconduct which, if substantiated, would 

warrant discipline on the part of an attorney admitted to practice before this Court 

shall come to the attention of a Judge of this Court, whether by complaint or 

otherwise, and the applicable procedure is not otherwise mandated by these Rules, 

the Judge shall refer the matter to counsel for investigation and the prosecution of a 

formal disciplinary proceeding or the formulation of such other recommendation as 

may be appropriate. 

In the Matter of Rules of Court at 6, Misc. No. 9 (W.D. Okla. Apr. 4, 1984) (en banc) (modifying 

LCvR 4(j)). 

5 

The Oklahoma Rules of Professional Conduct state: 

A lawyer who knows that another lawyer has committed a violation of the 

Rules of Professional Conduct that raises a substantial question as to that lawyer’s 

honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the 

appropriate professional authority. 

26

amendment would eliminate the potential inconsistency and expressly 

permit referral to the Oklahoma Bar Association without the need for 

authorization by the chief district judge. 

The proposed language resembles the wording used by some other courts 

with similar procedures involving referral of misconduct issues to the chief 

district judge or a screening committee. See E.D. Wash. LR 83.3(j) (“This 

rule does not restrict the judges of this district from referring a matter to any 

bar association for disciplinary action.”); D. Idaho Civil Rule 83.5(b)(8) 

(“This rule does not restrict the Court or any judge thereof from referring an 

attorney or a matter to any other court or to any bar association for 

investigation and/or disciplinary action.”). 

10. Appendix II - Joint Status Report and Discovery Plan 

[see pages 29-32] 


The Committee proposes seven changes to the “Joint Status Report and 

Discovery Plan.” 

First, the word “State” would be added to the start of “2.” 

Second, in “3,” the Committee would delete the phrase “or reasonably 

disputable.” 

Third, the form would amend “8(D)” by changing the citation from Fed. R. 

Civ. P. “26(f)(3)” to “26(f)(3)(C).” 

Fourth, in “8(E),” the citation to Rule 26(f)(3) would be changed to Rule 

26(f)(3)(D).” 

Fifth, in “8(D)” and “8(E),” the Committee would change the language 

from “as required by” to “pursuant to.” 

Sixth, in “8(E),” the Committee would add the following language: 

Rule 8.3(a), Oklahoma Rules of Professional Conduct (eff. Jan. 1, 2008). 

27

To the extent the parties have made any agreements pursuant 

to Fed. R. Civ. P. 26(f)(3)(D) and Fed. R. Civ. P. 502(e) 

regarding a procedure to assert claims of privilege/protection 

after production and are requesting that the court include such 

agreement in an order, please set forth the agreement in detail 

below and submit a proposed order adopting the same. 

Seventh, in “12(B),” the Committee would change “Mediation” to “Court- 

Ordered Mediation subject to LCvR 16.3.” 

The new version of the “Joint Status Report and Discovery Plan” appears 

below at pages 29-32: 

28

[APPENDIX II] 

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF OKLAHOMA 

) 

Plaintiff, ) 

v. ) Case No. _____________ 

) 

) 

Defendant. ) 

JOINT STATUS REPORT AND DISCOVERY PLAN 

Date of Conference: __________________ 

Appearing for Plaintiff: ____________________________________________________ 

Appearing for Defendant: ___________________________________________________ 

Jury Trial Demanded G - Non-Jury Trial G 

1. BRIEF PRELIMINARY STATEMENT. State briefly and in ordinary language 

the facts and positions of the parties to inform the judge of the general nature of 

the case. 

2. JURISDICTION. State the basis on which the jurisdiction of the Court is 

invoked and any presently known objections. 

3. STIPULATED FACTS. List stipulations as to all facts that are not disputed, 

including jurisdictional facts. 

4. CONTENTIONS AND CLAIMS FOR DAMAGES OR OTHER RELIEF 

SOUGHT. 

a. Plaintiff: 

b. Defendant: 

29

5. APPLICABILITY OF FED. R. CIV. P. 5.1 AND COMPLIANCE. 

Do any of the claims or defenses draw into question the constitutionality of a 

federal or state statute where notice is required under 28 U.S.C. § 2403 or Fed. R. 

Civ. P. 5.1 

G Yes 

G No 

6. MOTIONS PENDING AND/OR ANTICIPATED (include date of filing, relief 

requested, and date responsive brief to be filed). 

7. COMPLIANCE WITH RULE 26(a)(1). Have the initial disclosures required by 

Fed. R. Civ. P. 26(a)(1) been made G Yes G No 

If “no,” by what date will they be made ____________________ 

8. PLAN FOR DISCOVERY. 

A. The discovery planning conference (Fed. R. Civ. P. 26(f)) was held on 

_______________. 

B. The parties anticipate that discovery should be completed within ____ 

months. 

C. In the event ADR is ordered or agreed to, what is the minimum amount of 

time necessary to complete necessary discovery prior to the ADR session 

_______________________. 

D. Have the parties discussed issues relating to disclosure or discovery of 

electronically stored information, including the form or forms in which it 

should be produced, pursuant to Fed. R. Civ. P. 26(f)(3)(C) 

G Yes 

G No 

E. Have the parties discussed issues relating to claims of privilege or of 

protection as trial-preparation material pursuant to Fed. R. Civ. P. 

26(f)(3)(D) 

G Yes 

G No 

To the extent the parties have made any agreements pursuant to Fed. R. Civ. 

P. 26(f)(3)(D) and Fed. R. Civ. P. 502(e) regarding a procedure to assert 

30

claims of privilege/protection after production and are requesting that the 

court include such agreement in an order, please set forth the agreement in 

detail below and submit a proposed order adopting the same. 

_____________________________________________________________ 

_____________________________________________________________ 

F. Identify any other discovery issues which should be addressed at the 

scheduling conference, including any subjects of discovery, limitations on 

discovery, protective orders needed, or other elements (Fed. R. Civ. P. 

26(f)) which should be included in a particularized discovery plan. 

9. ESTIMATED TRIAL TIME: ______________ 

10. BIFURCATION REQUESTED: G Yes G No 

11. POSSIBILITY OF SETTLEMENT: G Good G Fair G Poor 

12. SETTLEMENT AND ADR PROCEDURES: 

A. Compliance with LCvR 16.1(a)(1) - ADR discussion: G Yes G No 

B. The parties request that this case be referred to the following ADR process: 

G Court-Ordered Mediation subject to LCvR 16.3 

G Judicial Settlement Conference 

G Other _____________________________________________________ 

G None - the parties do not request ADR at this time. 

13. Parties consent to trial by Magistrate Judge G Yes G No 

14. Type of Scheduling Order Requested. G Standard - G Specialized (If a 

specialized scheduling order is requested, counsel should include a statement of 

reasons and proposal.) 

31

Submitted this ______ day of _________________. 

______________________________________ 

Counsel for Plaintiff 

______________________________________ 

Counsel for Defendant 

32


Paragraph 2: The change is stylistic, to conform the format to the questions 

in Paragraphs 1 and 3. A similar change is proposed below in connection 

with the final pretrial report. See infra p. 42. 

Paragraph 3: The amendment would avoid confusion in the instructions to 

counsel. A similar change is proposed below in connection with the final 

pretrial report. See infra p. 42. 

Paragraph 8(D): This provision should be changed to conform to the style 

amendments to the Federal Rules of Civil Procedure and correctly specify 

the particular subsection under Rule 26(f)(3) which requires the parties 

discuss issues relating to electronically stored information. In addition, for 

technical accuracy, the phrase “as required by” should be changed to 

“pursuant to.” 

Paragraph 8(E): 

The citation in Section 8(E) of the joint status report and discovery plan was 

no longer correct after the style amendments to the Federal Rules of Civil 

Procedure. Therefore, the proposed change would correct the outdated 

citation and refer lawyers to the subsection of Rule 26(f) which addresses 

the parties’ obligation to discuss issues regarding claims of privilege or 

protection. 

The proposed language would provide a mechanism for parties who wish to 

have their agreements memorialized in the court’s case management order 

(or other order) to bring their agreements to the court’s attention. This is of 

special significance since the recent passage of Federal Rule of Evidence 

502. Under the new federal rule, an agreement regarding the procedure to 

claim privilege/work-product protection after production is binding only on 

the parties and will have no effect outside the federal action in which it was 

made or on third parties unless the agreement is memorialized in a court 

order. Fed. R. Evid. 502(e). The proposed revision in the local rule would 

facilitate discussion at the status and scheduling conference. By requiring 

the parties to submit a proposed order governing the procedures, the court 

would have the option to include the agreement in the Rule 16(b) case 

management order or to issue a separate order. 

33

Lastly, as in Paragraph “8(D),” the phrase “as required by” would be 

changed for technical accuracy. 

Paragraph 12: The Committee would modify No. 12 in light of the 

suggested amendments to LCvR 16.3 on private mediations. 

11. Appendix III - Scheduling Order 



In “16,” the Committee would change one of the appearances of the word 

“approved” to “approving.” 

In “17,” the term “Mediation” would be deleted. In its place, the 

Committee would add a box for “Court-Ordered Mediation subject to LCvR 

16.3.” In addition, the form would allow reference to private mediation and 

clarify, if the Court wishes, that the procedure would be exempt from LCvR 

16.3. 

As amended, the new form would appear below at pages 35 to 37: 

34

APPENDIX III 

[Reference LCvR16.1(b)] 

IN THE UNITED STATES DISTRICT COURT FOR THE 


_______________________________, ) 

Plaintiff, ) 

) 

vs. ) Case No. CIV-____________ 

) 

_______________________________, ) TRIAL DOCKET 

Defendant. ) 

SCHEDULING ORDER 

Date Judge Clerk 

Appearing for Plaintiff 

Appearing for Defendant 

G JURY TRIAL DEMANDED - G NON-JURY TRIAL 

THE FOLLOWING DEADLINES ARE SET BY THE COURT 

1. Motions to join additional 

parties to be filed by 

. 

2. Motions to amend pleadings 

to be filed by . 

3. Plaintiff to file a final 

list of expert witness(es) 

in chief and submit expert 

reports by .* 

Defendant to file a final 

list of expert witness(es) 

in chief and submit expert 

reports to plaintiff _____ 

days thereafter.* 


list of witnesses, together 

with addresses and brief 

summary of expected 

testimony where a witness 

has not already been 

deposed, by .* 


list of witnesses (as 

described above) 10 days 

thereafter.* 


exhibit list by 

.* Defendant to file 

objections to plaintiff’s 

final exhibit list, under 

Fed. R. Civ. P. 

26(a)(3)(B), by 

_____________. 


exhibit list 10 days 

thereafter.* Plaintiff to 

file objections to 

defendant’s final exhibit 

list, under Fed. R. Civ. P. 

26(a)(3)(B), by 

___________. 

35

*The listing of witnesses 

and exhibits shall 

separately state those 

expected to be called or 

used and those which may be 

called or used if the need 

arises. Except for good 

cause shown, no witness 

will be permitted to 

testify and no exhibit will 

be admitted in any party’s 

case in chief unless such 

witness or exhibit was 

included in the party’s 

filed witness or exhibit 

list. 

6. Discovery to be completed 

by ______________. 

7. All dispositive and Daubert 

motions to be filed by 

. 

If the deadline for dispositive 

motions and Daubert motions 

precedes the discovery deadline, 

the parties are expected to 

conduct any discovery necessary 

for such motions in advance of 

the motion deadline. 

8. Trial docket .** 

**Trial dockets generally 

begin the second Monday of 

each month. However, this 

practice varies, 

particularly during 

holidays. The published 

trial docket will announce 

the trial setting. 

The interval between the 

dispositive motion deadline 

( 7) and the trial docket 

( 8) is relatively 

inflexible. An extension 

of time to file or respond 

to a motion for summary 

judgment will likely affect 

the trial setting. 

9. Designations of deposition 

testimony to be used at 

trial to be filed by 

______________. Objections 

and counter-designations to 

be filed by ______________. 

Objections to counterdesignations 

to be filed by 

_______________. 

10. Motions in limine to be 

filed by . 

11. Requested voir dire to be 

filed by . 

12. Trial briefs (optional 

unless otherwise ordered) 

to be filed by . 

13. Requested jury instructions 

to be filed on or before 

.*** 

14. Proposed findings and 

conclusions of law to be 

filed no later than 

.*** 

***In addition to filing, 

the parties are encouraged, 

but not required, to submit 

their proposed jury 

instructions or findings of 

fact and conclusions of law 

in WordPerfect format to 

the Clerk via the Court’s 

designated mail box: last 

name of judge-orders@okwd. 

uscourts.gov. 

15. Any objection or responses 

to the trial submissions 

referenced in 10, 11, 12, 

13 or 14 to be filed 11 

days thereafter. 

16. The Final Pretrial Report, 

approved by all counsel, 

and in full compliance 

with Local Rules (see 

Appendix IV), together with 

a proposed order approving 

36

the report, to be submitted 

to the Court by . 

17. This case is referred to ADR: 

G Mediation by agreement of the parties, exempt from LCvR 

16.3. 

G by Order of the Court: 

G Court-Ordered Mediation subject to LCvR 16.3 

G Judicial Settlement Conference 

G Other 

If the Court orders mediation, the process shall be completed and 

a report filed with the Court by the parties, stating 

whether the case settled, not later than . 

18. G The parties consent to trial by a Magistrate Judge. 

19. Initial disclosures pursuant to Fed. R. Civ. P. 26 have been made 

G; are excused G; or G shall be made no later than . 

20. Other: 

Dated this ___ day of ____________. 

BY ORDER OF THE COURT 

ROBERT D. DENNIS, CLERK OF COURT 

By:______________________________ 

Deputy Clerk 

Copies to all parties. 

37


The Committee would correct a typographical error in No. 16. The word 

“approved” should be “approving.” 

The Committee also would modify No. 17 in light of the suggested 

amendment of LCvR 16.3. 

12. Appendix IV - Final Pretrial Report 



In “2,” the word “State” would be added. In “3,” the Committee would 

delete the phrase “or reasonably disputable.” 

As amended, the new form would appear below at pages 39-41: 

38

APPENDIX IV 

[Reference LCvR16.1(b)] 

IN THE UNITED STATES DISTRICT COURT FOR THE 


) 

Plaintiff, ) 

v. ) Case No. _____________ 

) 

) ____________ Trial Docket 

Defendant. ) 

All counsel who will appear at trial: 

FINAL PRETRIAL REPORT 

Appearing for Plaintiff: _____________________________________________________ 

Appearing for Defendant: ___________________________________________________ 

Jury Trial Demanded G - Non-Jury Trial G 

1. BRIEF PRELIMINARY STATEMENT. State briefly and in ordinary language the 

facts and positions of the parties (appropriate for use during jury selection in jury 

cases). 

2. JURISDICTION. State the basis on which the jurisdiction of the Court is invoked. 

3. STIPULATED FACTS. List stipulations as to all facts that are not disputed, 

including jurisdictional facts. 

4. LEGAL ISSUES. State separately, and by party, each disputed legal issue and the 

authority relied upon. 

5. CONTENTIONS AND CLAIMS FOR DAMAGES OR OTHER RELIEF 

SOUGHT. 

A. Plaintiff 

B. Defendant 

39

6. EXHIBITS. The following exclusionary language MUST be included: 

Unlisted exhibits will not be admitted unless, by order of the court, the final pretrial 

order is amended to include them. 

A. Plaintiff: 

Federal Rule of 

Number Title/Description Objection Evidence Relied Upon 

(Premarked for trial and exchanged as required under LCvR 39.4(a)) 

B. Defendant: 

Federal Rule of 

Number Title/Description Objection Evidence Relied Upon 

(Premarked for trial and exchanged as required under LCvR 39.4(a)) 

7. WITNESSES: The following exclusionary language MUST be included: 

Unlisted witnesses in chief will not be permitted to testify unless, by order of the 

court, the final pretrial order is amended to include them. 

A. Plaintiff: 

Name Address Proposed Testimony 

B. Defendant: 

Name Address Proposed Testimony 

8. ESTIMATED TRIAL TIME: 

A. Plaintiff’s Case: ____________ 

B. Defendant’s Case: ____________ 

9. BIFURCATION REQUESTED: Yes ______ No ______ 

10. POSSIBILITY OF SETTLEMENT: 

Good __________ Fair __________ Poor __________ 

40

All parties approve this report and understand and agree that this report supersedes 

all pleadings, shall govern the conduct of the trial, and shall not be amended except by 

order of the Court. 

_______________________________________ 

Counsel for Plaintiff 

_______________________________________ 

Counsel for Defendant 

41


The Committee proposes two changes in Paragraphs “2” and “3.” 

The change in “2” is stylistic, to conform the format to Paragraphs “1” and 

“3.” The Committee elsewhere proposes a similar change, for the same 

reason, in Paragraph “2” of the joint status report and discovery plan. See 

supra p. 33. 

In “3,” the Committee would propose elimination of the phrase “or 

reasonably disputable.” In context, this phrase is somewhat confusing. A 

similar change is proposed above in connection with the joint status report 

and discovery plan. See supra p. 33. 

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