Judge Thomas M. Durkin

Class Certification Motions

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Plaintiffs in putative class actions often file motions for class certification contemporaneously with their complaints. Presumably, plaintiffs file these motions to address concerns raised by the Seventh Circuit in Damasco v. Clearwire Corp., 662 F.3d 891, 897 (7th Cir. 2011), which despite being overruled in Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015), have become relevant again due to dicta in the Supreme Court’s decision in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016) (“We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.”). Consideration of such motions at such an early stage is premature. Accordingly, the Court asks that the parties consider entering into a stipulation that would obviate the need for the Court to address the premature motion for class certification, while also addressing the concerns raised in Campbell-Ewald and Chapman. A sample stipulation may be found here. Plaintiffs in putative class actions often file motions for class certification contemporaneously with their complaints. Presumably, plaintiffs file these motions to address concerns raised by the Seventh Circuit in Damasco v. Clearwire Corp., 662 F.3d 891, 897 (7th Cir. 2011), which despite being overruled in Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015), have become relevant again due to dicta in the Supreme Court’s decision in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016) (“We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.”). Consideration of such motions at such an early stage is premature. Accordingly, the Court asks that the parties consider entering into a stipulation that would obviate the need for the Court to address the premature motion for class certification, while also addressing the concerns raised in Campbell-Ewald and Chapman. A sample stipulation may be found here.

Courtesy Copies & Amended Complaints

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When Required: In accordance with General Order 21-0027 and its suspension of Local Rule 5.2(F), no courtesy copies may be submitted for filings unless the parties receive case-specific requests for copies from chambers staff.

If courtesy copies are requested, they should conform to the following requirements:

Delivery: Unless otherwise instructed by the Court, courtesy copies should be delivered by first class mail or its equivalent. Next day or otherwise expedited delivery (including delivery by messenger) is unnecessary in the normal course, and such expense is generally not justifiable. Please deliver all courtesy copies to the box outside of Room 1438 (Emily Wall's office). Please do not bring courtesy copies to chambers. A delivery confirmation signature will not be available.

Format: Courtesy copies should always be printed from ECF after electronic filing so that the copies include the ECF header. Courtesy copies should be printed on both sides of the paper whenever possible. Parties citing a deposition transcript in a brief should submit only the cited excerpts in hard copy in the condensed format, but must submit the entire transcript on ECF. The Court does not want hard copies of entire deposition transcripts. The Court prefers documents to be stapled rather than bound on the left hand side, unless the size of the document makes use of a staple impossible. All electronically filed documents should be made word searchable before being filed on ECF.

Amended Complaints should be submitted with a redline or other comparison document attached as an exhibit showing the amendments made to the previous iteration of the complaint.

When Required: In accordance with General Order 21-0027 and its suspension of Local Rule 5.2(F), no courtesy copies may be submitted for filings unless the parties receive case-specific requests for copies from chambers staff.

If courtesy copies are requested, they should conform to the following requirements:

Delivery: Unless otherwise instructed by the Court, courtesy copies should be delivered by first class mail or its equivalent. Next day or otherwise expedited delivery (including delivery by messenger) is unnecessary in the normal course, and such expense is generally not justifiable. Please deliver all courtesy copies to the box outside of Room 1438 (Emily Wall's office). Please do not bring courtesy copies to chambers. A delivery confirmation signature will not be available.

Format: Courtesy copies should always be printed from ECF after electronic filing so that the copies include the ECF header. Courtesy copies should be printed on both sides of the paper whenever possible. Parties citing a deposition transcript in a brief should submit only the cited excerpts in hard copy in the condensed format, but must submit the entire transcript on ECF. The Court does not want hard copies of entire deposition transcripts. The Court prefers documents to be stapled rather than bound on the left hand side, unless the size of the document makes use of a staple impossible. All electronically filed documents should be made word searchable before being filed on ECF.

Amended Complaints should be submitted with a redline or other comparison document attached as an exhibit showing the amendments made to the previous iteration of the complaint.

Daubert Proceedings

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Motion Practice: Any party may challenge the admissibility of expert testimony offered by another party. The party seeking to challenge the admissibility of expert testimony shall do so by motion as soon as possible; preferably well in advance of the Final Pretrial Conference. In the motion, the moving party shall identify the specific opinion(s) that the movant seeks to exclude and the legal basis for exclusion, together with sufficient background information to provide context. The movant shall electronically file, in a searchable format, the relevant expert report(s) and, if the expert was deposed, the full transcript of the expert’s deposition.

Meet & Confer: Many expert reports cover a wide variety of opinions. As a case gets closer to trial, it often becomes clear that a number of those opinions will not be offered at trial. The parties are required to meet and confer before the filing of any Daubert motion to ensure that the subjects of the motion are only the opinions that will be offered at trial. Seeking to bar an opinion the other side has no intention of soliciting is a waste of the parties' and the Court's time.

Hearing Procedures: The Court, upon request of a party or on its own, may conduct a Daubert hearing. A Daubert hearing permits the parties to examine the challenged expert in open court to develop his or her testimony for purposes of evaluating its admissibility.

General Principles: The hearing shall be limited to the issues raised in the Daubert motion, unless the Court indicates otherwise. Although the expert at issue will testify, the hearing is not a forum to develop the expert’s testimony for any purpose other than evaluating its admissibility. The parties should avoid inquiry into undisputed issues of admissibility. The Court encourages the parties, where possible, to stipulate to any uncontested issues of admissibility, such as the expert’s qualifications, prior to the hearing. The proponent of the expert is responsible for procuring the expert’s attendance at the hearing.

Before the Hearing: One week prior to the hearing, the parties shall file a Joint Report stating whether any party intends to present testimony from any witness other than the expert at issue. The Court does not anticipate that the parties will present any witness other than the expert at issue. The Joint Report shall also include an exhibit list and copies of any exhibits that the parties intend to use at the hearing.

The Hearing: The hearing will proceed as follows, absent an order to the contrary: Opening Remarks (brief; if requested); Direct Examination (proponent); Cross Examination (movant); Re-Direct Examination (if requested); Re-Cross Examination (if requested); Closing Remarks (brief; if requested).

After the Hearing: The parties shall not file post-hearing briefs, unless ordered to do so by the Court.

Motion Practice: Any party may challenge the admissibility of expert testimony offered by another party. The party seeking to challenge the admissibility of expert testimony shall do so by motion as soon as possible; preferably well in advance of the Final Pretrial Conference. In the motion, the moving party shall identify the specific opinion(s) that the movant seeks to exclude and the legal basis for exclusion, together with sufficient background information to provide context. The movant shall electronically file, in a searchable format, the relevant expert report(s) and, if the expert was deposed, the full transcript of the expert’s deposition.

Meet & Confer: Many expert reports cover a wide variety of opinions. As a case gets closer to trial, it often becomes clear that a number of those opinions will not be offered at trial. The parties are required to meet and confer before the filing of any Daubert motion to ensure that the subjects of the motion are only the opinions that will be offered at trial. Seeking to bar an opinion the other side has no intention of soliciting is a waste of the parties' and the Court's time.

Hearing Procedures: The Court, upon request of a party or on its own, may conduct a Daubert hearing. A Daubert hearing permits the parties to examine the challenged expert in open court to develop his or her testimony for purposes of evaluating its admissibility.

General Principles: The hearing shall be limited to the issues raised in the Daubert motion, unless the Court indicates otherwise. Although the expert at issue will testify, the hearing is not a forum to develop the expert’s testimony for any purpose other than evaluating its admissibility. The parties should avoid inquiry into undisputed issues of admissibility. The Court encourages the parties, where possible, to stipulate to any uncontested issues of admissibility, such as the expert’s qualifications, prior to the hearing. The proponent of the expert is responsible for procuring the expert’s attendance at the hearing.

Before the Hearing: One week prior to the hearing, the parties shall file a Joint Report stating whether any party intends to present testimony from any witness other than the expert at issue. The Court does not anticipate that the parties will present any witness other than the expert at issue. The Joint Report shall also include an exhibit list and copies of any exhibits that the parties intend to use at the hearing.

The Hearing: The hearing will proceed as follows, absent an order to the contrary: Opening Remarks (brief; if requested); Direct Examination (proponent); Cross Examination (movant); Re-Direct Examination (if requested); Re-Cross Examination (if requested); Closing Remarks (brief; if requested).

After the Hearing: The parties shall not file post-hearing briefs, unless ordered to do so by the Court.

Default

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Although Federal Rule of Civil Procedure 55 permits a party to seek a default with the Clerk of the Court in the first instance, Judge Durkin requires all motions for default or default judgments to be noticed on his calendar. Although Federal Rule of Civil Procedure 55 permits a party to seek a default with the Clerk of the Court in the first instance, Judge Durkin requires all motions for default or default judgments to be noticed on his calendar.

Discovery

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Discovery Motions:

The Court believes that parties can and should work out most discovery disputes and thus discourages the filing of discovery motions. The Court will not hear or consider any discovery motion or non-dispositive dispute unless the movant has complied with the "meet and confer" requirement of Local Rule 37.2. The motion must state with specificity when and how the movant complied with Local Rule 37.2. Parties are reminded that compliance with Local Rule 37.2 requires a good faith effort to resolve discovery disputes and communication that takes place face to face or by telephone. The exchange of correspondence will not normally be sufficient to comply with Local Rule 37.2.

All parties should be fully prepared to argue any discovery motion on the date that it is presented. The Court most often will rule on discovery motions after hearing argument at the motion call and without briefing. If after hearing argument, the Court believes that the motion requires briefing, the Court normally will set an expedited briefing schedule so that the matter can be resolved promptly.

Parties are reminded to immediately notify the Court if they are withdrawing any previously filed discovery motions.

Parties are reminded that there is no "order" in which discovery must occur, and that one party's failure or inability to respond to discovery will not excuse any other party's prompt compliance. Parties are also reminded that the pendency of a motion, such as a motion to dismiss, does not operate as a stay of discovery absent explicit order of the Court.

Boilerplate Language:

Boilerplate "instructions" shall not be used in interrogatories and document requests. These unduly detailed instructions rarely accomplish anything useful and serve merely to add unnecessarily to the cost of litigation, especially where they give rise to disputes. Interrogatories and document requests should be framed with clarity, so that no instructions are necessary. In the exceptional case where instructions might be necessary, they should be concise and specific to the problem presented by the particular interrogatory. Boilerplate instructions may be regarded as surplusage and need not be considered in responding to the interrogatories or document requests.

E-Discovery:

If the parties have reached an impasse regarding the discovery of voluminous records from a database, server, computer, service provider or similar electronic storage facility (ESF), before filing a motion to compel, the parties are required to meet and confer with an IT representative of the ESF to be searched in order to determine the most effective way to retrieve the requested material. The party seeking the discovery should also bring its IT specialist to this meeting in order to discuss the proper format for the retrieval of the records. This electronic discovery conference must take place in person and both sides should be prepared to discuss specifically the parameters of both the search and the ESF.

Discovery Motions:

The Court believes that parties can and should work out most discovery disputes and thus discourages the filing of discovery motions. The Court will not hear or consider any discovery motion or non-dispositive dispute unless the movant has complied with the "meet and confer" requirement of Local Rule 37.2. The motion must state with specificity when and how the movant complied with Local Rule 37.2. Parties are reminded that compliance with Local Rule 37.2 requires a good faith effort to resolve discovery disputes and communication that takes place face to face or by telephone. The exchange of correspondence will not normally be sufficient to comply with Local Rule 37.2.

All parties should be fully prepared to argue any discovery motion on the date that it is presented. The Court most often will rule on discovery motions after hearing argument at the motion call and without briefing. If after hearing argument, the Court believes that the motion requires briefing, the Court normally will set an expedited briefing schedule so that the matter can be resolved promptly.

Parties are reminded to immediately notify the Court if they are withdrawing any previously filed discovery motions.

Parties are reminded that there is no "order" in which discovery must occur, and that one party's failure or inability to respond to discovery will not excuse any other party's prompt compliance. Parties are also reminded that the pendency of a motion, such as a motion to dismiss, does not operate as a stay of discovery absent explicit order of the Court.

Boilerplate Language:

Boilerplate "instructions" shall not be used in interrogatories and document requests. These unduly detailed instructions rarely accomplish anything useful and serve merely to add unnecessarily to the cost of litigation, especially where they give rise to disputes. Interrogatories and document requests should be framed with clarity, so that no instructions are necessary. In the exceptional case where instructions might be necessary, they should be concise and specific to the problem presented by the particular interrogatory. Boilerplate instructions may be regarded as surplusage and need not be considered in responding to the interrogatories or document requests.

E-Discovery:

If the parties have reached an impasse regarding the discovery of voluminous records from a database, server, computer, service provider or similar electronic storage facility (ESF), before filing a motion to compel, the parties are required to meet and confer with an IT representative of the ESF to be searched in order to determine the most effective way to retrieve the requested material. The party seeking the discovery should also bring its IT specialist to this meeting in order to discuss the proper format for the retrieval of the records. This electronic discovery conference must take place in person and both sides should be prepared to discuss specifically the parameters of both the search and the ESF.

Motion Practice Generally

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Motions should not be noticed for presentment in accordance with Local Rule 5.3(b). Instead, counsel must confer prior to the filing of all motions and include an agreed briefing schedule with the motion if at all possible. If agreement cannot be reached, the parties should indicate their positions on scheduling in a joint submission filed with the motion. The Court will then review the motion and any joint submission to determine the appropriate briefing schedule and whether a hearing is necessary. A hearing is presumptively necessary in cases involving pro se parties. If Judge Durkin determines a hearing is necessary, it will be scheduled by chambers.

Unless otherwise ordered by the Court, briefs in support of or opposition to a motion should be no more than 15 pages, and reply briefs should be no more than 10.

Requirements

Before filing a motion, the movant's counsel must ask opposing counsel whether there is an objection to the motion. If there is an objection, movant must note that fact in the body of the motion. Joint, uncontested, and agreed motions should be so identified in both the title and the body of the motion. Many of those motions will be granted without appearance, so counsel should check the docket before coming to Court. Motions for extension of time shall indicate: (i) the reason for the request, and (ii) the number of previous extensions. Trial dates and discovery cutoff dates generally will not be reset except by written motion, and will generally require a court appearance.

Courtesy Copies

When Required: The Court requires courtesy copies for all filed documents, except: (1) summons and proof of service; (2) the motion document itself (as opposed to briefs or memos of law); (3) motions to set a hearing date; (4) motions for extension of time; (5) motions to file an enlarged brief; (6) pro hac vice motions; (7) attorney appearance documents; and (8) motions to withdraw an attorney appearance if the party continues to have other counsel.

Delivery: Unless otherwise instructed by the Court, courtesy copies should be delivered by first class mail or its equivalent. Next day or otherwise expedited delivery (including delivery by messenger) is unnecessary in the normal course, and such expense is generally not justifiable. Please deliver all courtesy copies to the box outside of Room 1438 (Emily Wall's office). Please do not bring courtesy copies to chambers. A delivery confirmation signature will not be available.

Format: Courtesy copies should always be printed from ECF after electronic filing so that the copies include the ECF header. Courtesy copies should be printed on both sides of the paper whenever possible. Parties citing a deposition transcript in a brief should submit only the cited excerpts in hard copy in the condensed format, but must file the entire transcript on ECF. The Court does not want hard copies of entire deposition transcripts. All documents should be made word searchable before being filed on ECF. The Court prefers documents to be stapled rather than bound on the left hand side, unless the size of the document makes use of a staple impossible.

Citations

The Court prefers that citations to unpublished opinions be Westlaw citations. To the extent possible, briefs and other filings (such as Rule 56.1 statements of fact) should cite exhibits by the ECF docket number and page, not exhibit number.

Motions should not be noticed for presentment in accordance with Local Rule 5.3(b). Instead, counsel must confer prior to the filing of all motions and include an agreed briefing schedule with the motion if at all possible. If agreement cannot be reached, the parties should indicate their positions on scheduling in a joint submission filed with the motion. The Court will then review the motion and any joint submission to determine the appropriate briefing schedule and whether a hearing is necessary. A hearing is presumptively necessary in cases involving pro se parties. If Judge Durkin determines a hearing is necessary, it will be scheduled by chambers.

Unless otherwise ordered by the Court, briefs in support of or opposition to a motion should be no more than 15 pages, and reply briefs should be no more than 10.

Requirements

Before filing a motion, the movant's counsel must ask opposing counsel whether there is an objection to the motion. If there is an objection, movant must note that fact in the body of the motion. Joint, uncontested, and agreed motions should be so identified in both the title and the body of the motion. Many of those motions will be granted without appearance, so counsel should check the docket before coming to Court. Motions for extension of time shall indicate: (i) the reason for the request, and (ii) the number of previous extensions. Trial dates and discovery cutoff dates generally will not be reset except by written motion, and will generally require a court appearance.

Courtesy Copies

When Required: The Court requires courtesy copies for all filed documents, except: (1) summons and proof of service; (2) the motion document itself (as opposed to briefs or memos of law); (3) motions to set a hearing date; (4) motions for extension of time; (5) motions to file an enlarged brief; (6) pro hac vice motions; (7) attorney appearance documents; and (8) motions to withdraw an attorney appearance if the party continues to have other counsel.

Delivery: Unless otherwise instructed by the Court, courtesy copies should be delivered by first class mail or its equivalent. Next day or otherwise expedited delivery (including delivery by messenger) is unnecessary in the normal course, and such expense is generally not justifiable. Please deliver all courtesy copies to the box outside of Room 1438 (Emily Wall's office). Please do not bring courtesy copies to chambers. A delivery confirmation signature will not be available.

Format: Courtesy copies should always be printed from ECF after electronic filing so that the copies include the ECF header. Courtesy copies should be printed on both sides of the paper whenever possible. Parties citing a deposition transcript in a brief should submit only the cited excerpts in hard copy in the condensed format, but must file the entire transcript on ECF. The Court does not want hard copies of entire deposition transcripts. All documents should be made word searchable before being filed on ECF. The Court prefers documents to be stapled rather than bound on the left hand side, unless the size of the document makes use of a staple impossible.

Citations

The Court prefers that citations to unpublished opinions be Westlaw citations. To the extent possible, briefs and other filings (such as Rule 56.1 statements of fact) should cite exhibits by the ECF docket number and page, not exhibit number.

New & Reassigned Cases

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The Court will set all newly-filed and reassigned cases for an initial status hearing. If the defendant(s) have not been served by the initial status date, counsel for plaintiff is to contact the Courtroom Deputy, Emily Wall, to reschedule the status hearing and the date for filing an initial status report.

If no defendant has appeared, or plaintiff is seeking a default, no status report is required.

The Court will also order the parties in all newly-filed and reassigned cases--except new cases concerning John Doe copyright infringement actions--to file electronically prior to the initial status hearing a joint written status report, not to exceed three pages in length. The status report shall provide information about the case using the appropriate format described below.

Too often litigants are unaware of the efficiencies to be gained by having their cases tried before United States Magistrate Judges. Because they do not conduct felony criminal trials, they can often schedule civil trials more expeditiously than this Court. The Court strongly encourages counsel to inform their clients of this option, and to discuss it with opposing counsel. Click here for the Magistrate Judge Consent Form.

I. New Case Status Report Format (see below for Reassigned Case Format):

(1) The Nature of the Case

Identify the attorneys of record for each party, including the lead trial attorneys.
State the basis for federal jurisdiction.
Describe the nature of the claims asserted in the complaint and any counterclaims, including relief sought.

(2) Pending Motions and Case Plan

Identify any pending motions.
Submit a proposal for a discovery plan, including the following information:
1. The general type of discovery needed;
2. A date to issue written discovery;
3. If there will be expert discovery relevant to dispositive liability motions, an expert discovery completion date, including dates for the delivery of expert reports;
4. A liability discovery completion date;
5. A deadline to amend pleadings;
6. Scheduling of expert discovery relevant to damages should be deferred until it becomes necessary for a hearing or trial. The parties may suggest that expert discovery relevant to damages be scheduled sooner if they believe it is necessary. Generally, the time and expense of expert damage discovery should not be taken until any dispositive motions have been decided, or the parties agree that no such motions will be filed.
7. A deadline for filing summary judgment motions should not be included. The Court will set that deadline in consultation with the parties after the close of discovery.
8. The Court generally approves parties' jointly proposed discovery plans, because the Court trusts that the parties will devise a schedule that both moves the case forward in an efficient manner and takes into account the parties' and counsel's other obligations. Since the Court will be generous in this regard, the Court will be reluctant to grant any extensions of this schedule.
E-Discovery
1. Indicate whether discovery will encompass electronically stored information, and the parties’ plan to ensure that such discovery proceeds appropriately; and
2. Indicate whether the parties anticipate any electronic discovery disputes.
Indicate whether a jury trial is requested and the probable length of trial.

(3) Consent to Proceed Before a Magistrate Judge

Indicate whether the parties consent unanimously to proceed before a Magistrate Judge for all matters in the case, including dispositive motions and trial.

(4) Status of Settlement Discussions

Indicate whether any settlement discussions have occurred, and if so, the status of those discussion. Unless it is impossible due to the uncertainty of damages, plaintiffs should have made a demand by the first status conference.
Whether the parties request a settlement conference before the Magistrate Judge assigned to the case.

II. Reassigned Case Status Report Format:

(1) Nature of the Case

Attorneys of record for each party.
Basis for federal jurisdiction.
Nature of the claim(s) and any counterclaim(s), including relief sought.

(2) Proceedings to Date and Discovery

Summary of discovery that has been taken and remains to be taken.
Depositions - approximate number taken and estimated number still to be taken.
Discovery cut-off date, and whether that date will be met. If no discovery cut-off date has been set, please suggest one.
Deadline to amend the pleadings. If no such date has been set, please suggest one.

(3) Pending Motions

Description of all pending motions, and any briefing schedule set.
Summary of all substantive rulings that have been entered.

(4) Trial

Whether there has been a jury demand.
Whether a trial date has been set; if not, the earliest date the parties anticipate being able to commence a trial.
Whether a final pretrial order has been filed; if not, whether there is a deadline for filing a final pretrial order.
Estimated length of trial.

(5) Referrals and Settlement

The assigned magistrate judge and whether the parties have discussed consenting to having the magistrate judge conduct all further proceedings in the case, including trial.
Whether any settlement discussions have occurred, the status of any such discussions, and whether referral to the magistrate judge for assistance in settlement would be helpful.

(6) Any other information that the parties believe is pertinent to the Court's understanding of the status of the case.

The Court will set all newly-filed and reassigned cases for an initial status hearing. If the defendant(s) have not been served by the initial status date, counsel for plaintiff is to contact the Courtroom Deputy, Emily Wall, to reschedule the status hearing and the date for filing an initial status report.

If no defendant has appeared, or plaintiff is seeking a default, no status report is required.

The Court will also order the parties in all newly-filed and reassigned cases--except new cases concerning John Doe copyright infringement actions--to file electronically prior to the initial status hearing a joint written status report, not to exceed three pages in length. The status report shall provide information about the case using the appropriate format described below.

Too often litigants are unaware of the efficiencies to be gained by having their cases tried before United States Magistrate Judges. Because they do not conduct felony criminal trials, they can often schedule civil trials more expeditiously than this Court. The Court strongly encourages counsel to inform their clients of this option, and to discuss it with opposing counsel. Click here for the Magistrate Judge Consent Form.

I. New Case Status Report Format (see below for Reassigned Case Format):

(1) The Nature of the Case

Identify the attorneys of record for each party, including the lead trial attorneys.
State the basis for federal jurisdiction.
Describe the nature of the claims asserted in the complaint and any counterclaims, including relief sought.

(2) Pending Motions and Case Plan

Identify any pending motions.
Submit a proposal for a discovery plan, including the following information:
1. The general type of discovery needed;
2. A date to issue written discovery;
3. If there will be expert discovery relevant to dispositive liability motions, an expert discovery completion date, including dates for the delivery of expert reports;
4. A liability discovery completion date;
5. A deadline to amend pleadings;
6. Scheduling of expert discovery relevant to damages should be deferred until it becomes necessary for a hearing or trial. The parties may suggest that expert discovery relevant to damages be scheduled sooner if they believe it is necessary. Generally, the time and expense of expert damage discovery should not be taken until any dispositive motions have been decided, or the parties agree that no such motions will be filed.
7. A deadline for filing summary judgment motions should not be included. The Court will set that deadline in consultation with the parties after the close of discovery.
8. The Court generally approves parties' jointly proposed discovery plans, because the Court trusts that the parties will devise a schedule that both moves the case forward in an efficient manner and takes into account the parties' and counsel's other obligations. Since the Court will be generous in this regard, the Court will be reluctant to grant any extensions of this schedule.
E-Discovery
1. Indicate whether discovery will encompass electronically stored information, and the parties’ plan to ensure that such discovery proceeds appropriately; and
2. Indicate whether the parties anticipate any electronic discovery disputes.
Indicate whether a jury trial is requested and the probable length of trial.

(3) Consent to Proceed Before a Magistrate Judge

Indicate whether the parties consent unanimously to proceed before a Magistrate Judge for all matters in the case, including dispositive motions and trial.

(4) Status of Settlement Discussions

Indicate whether any settlement discussions have occurred, and if so, the status of those discussion. Unless it is impossible due to the uncertainty of damages, plaintiffs should have made a demand by the first status conference.
Whether the parties request a settlement conference before the Magistrate Judge assigned to the case.

II. Reassigned Case Status Report Format:

(1) Nature of the Case

Attorneys of record for each party.
Basis for federal jurisdiction.
Nature of the claim(s) and any counterclaim(s), including relief sought.

(2) Proceedings to Date and Discovery

Summary of discovery that has been taken and remains to be taken.
Depositions - approximate number taken and estimated number still to be taken.
Discovery cut-off date, and whether that date will be met. If no discovery cut-off date has been set, please suggest one.
Deadline to amend the pleadings. If no such date has been set, please suggest one.

(3) Pending Motions

Description of all pending motions, and any briefing schedule set.
Summary of all substantive rulings that have been entered.

(4) Trial

Whether there has been a jury demand.
Whether a trial date has been set; if not, the earliest date the parties anticipate being able to commence a trial.
Whether a final pretrial order has been filed; if not, whether there is a deadline for filing a final pretrial order.
Estimated length of trial.

(5) Referrals and Settlement

The assigned magistrate judge and whether the parties have discussed consenting to having the magistrate judge conduct all further proceedings in the case, including trial.
Whether any settlement discussions have occurred, the status of any such discussions, and whether referral to the magistrate judge for assistance in settlement would be helpful.

(6) Any other information that the parties believe is pertinent to the Court's understanding of the status of the case.

Patent Cases (for Utility Patents)

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The Local Patent Rules of course apply to all cases regarding utility patents filed in this District. It is Judge Durkin’s practice, however, to hold an informal, off the record meeting in chambers with the attorneys for the parties as soon as possible after all parties have counsel who have filed appearances in utility patent cases. All discussions at the meeting will be inadmissible in any later proceeding under Federal Rule of Evidence 408. The purpose of the meeting is to see whether an early resolution of the case, or a narrowing or prioritizing of the contested issues can occur before any scheduling order is prepared by the parties. No position papers or other briefs should be filed in advance of the meeting, which will last an hour or less. No clients are required to attend, as this is not a settlement conference. Out of town counsel are permitted to appear by phone. Plaintiffs’ counsel shall call Judge Durkin’s courtroom deputy, Emily Wall, after summons has been executed in order to begin discussions about the scheduling of this meeting. No answer to the complaint is required until after this meeting, which is intended to minimize the costs of this uniquely expensive kind of litigation. This procedure does not apply to to design patent cases.

In any motion a for temporary restraining order or preliminary injunction in a utility patent case, Plaintiffs should not seek an asset restraint unless Plaintiffs can show that the Court’s order in case 24-cv-1211 at Docket No. 67 does not apply.

The Local Patent Rules of course apply to all cases regarding utility patents filed in this District. It is Judge Durkin’s practice, however, to hold an informal, off the record meeting in chambers with the attorneys for the parties as soon as possible after all parties have counsel who have filed appearances in utility patent cases. All discussions at the meeting will be inadmissible in any later proceeding under Federal Rule of Evidence 408. The purpose of the meeting is to see whether an early resolution of the case, or a narrowing or prioritizing of the contested issues can occur before any scheduling order is prepared by the parties. No position papers or other briefs should be filed in advance of the meeting, which will last an hour or less. No clients are required to attend, as this is not a settlement conference. Out of town counsel are permitted to appear by phone. Plaintiffs’ counsel shall call Judge Durkin’s courtroom deputy, Emily Wall, after summons has been executed in order to begin discussions about the scheduling of this meeting. No answer to the complaint is required until after this meeting, which is intended to minimize the costs of this uniquely expensive kind of litigation. This procedure does not apply to to design patent cases.

In any motion a for temporary restraining order or preliminary injunction in a utility patent case, Plaintiffs should not seek an asset restraint unless Plaintiffs can show that the Court’s order in case 24-cv-1211 at Docket No. 67 does not apply.

Pretrial Procedures in Criminal Cases

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At least one week before a criminal trial, the parties will be scheduled to appear for a pretrial conference. The Defendant(s) must be present for the conference unless his presence is personally waived at a prior court proceeding.

I. Final Pretrial Submissions

The following should be filed five business days before the conference, unless otherwise indicated:

1. Agreed Case Statement.

The Court will read this statement to the jury during voir dire.

2. Witness Lists.

Separate lists for each side, noting witnesses who will be called to testify and witnesses who may be called to testify

For each witness, provide a very concise (2 or 3 sentences maximum) description of the witness and the witness’s role in the case.

The Court will read the names of witnesses on these lists during jury selection.

3. Exhibit Lists.

A list by each side of all exhibits the party will definitely use at trial (including demonstratives, summaries or other specially prepared exhibits), which includes the following:

the exhibit number for each document;
the date of the document;
a brief description of the document and a concise statement of the exhibit’s relevance;
whether there is an objection to admission of the document and, if so, a concise statement of the basis for the objection (e.g., Rule 403—undue prejudice or confusion; Rule 802—hearsay); and
a concise statement of the asserted basis of admissibility, if there is an objection.

At least one week before the pretrial conference, the parties must provide the court with two sets of exhibit binders containing copies of the objected-to representative exhibits. If the representative exhibits require more than a single binder, the parties must contact the Courtroom Deputy, Emily Wall, to explain why additional binders are required. After the pretrial conference and rulings on exhibits, two binders of the final exhibits will be required to be given to the Court no later than the day before trial. Each binder should also include a summary checklist page for the Court to track admission of exhibits during trial.

Note: There is no need to list every conceivable exhibit that can possibly be used. The parties should submit a list of trial exhibits they definitely intend to introduce. Exhibits not likely to be used need not be listed. If, due to unforeseen circumstances during trial a party wishes to introduce an exhibit not previously listed, notice should be given as soon as possible to the opposing side and to the Court so that any objections can be discussed. Absent abuse of this process, an exhibit will not be deemed inadmissible simply because it was not included on the original exhibit list, provided the exhibit/document was earlier produced to the opposing side during discovery.

4. Motions in Limine.

The parties are directed to meet and confer on all motions in limine before filing them and determine which motions, if any, are unopposed and do not need to be filed. The parties should bring any unopposed motions in limine to the Court's attention at the pre-trial conference.

Unless otherwise ordered, all motions in limine must be filed three weeks before the final pre-trial conference. Responses are due one week before the the final pre-trial conference. No replies should be filed unless ordered by the Court. Parties filing multiple motions in limine should submit their initial motions and the supporting exhibits in one document for the Court. Responses to motions in limine should also be submitted in one document.

5. Voir Dire Questions.

To the extent possible, the Court prefers that most questions asked of potential jurors be included in a written questionnaire (of no more than two pages) as it encourages reflection and candor. Sample questions are provided below in section II.1 addressing jury selection procedures. To propose questions that should be included in the written questionnaire distributed to the venire, as well as questions the Court should ask orally, the parties must file a joint document that includes both: (1) joint questions in the form of a questionnaire; (2) a list of questions to be asked orally; and (3) proposed questions to which one party objects, and a short basis for the objection.

6. Jury Instructions. The parties are instructed to meet and attempt to agree on jury instructions and to file proposed instructions before the final pre-trial conference. The Court uses the 7th Circuit Pattern Jury Instructions where applicable, bearing in mind that statutory and binding case law govern over the pattern instructions.

See Pattern Criminal Jury Instructions

If the parties wish to modify a 7th Circuit Pattern Jury Instruction, the party proposing the modification must submit a redline to the Court showing the modification to the pattern instruction. The parties should concentrate their efforts on the substantive jury instructions related to the merits.

Each proposed instruction must indicate the proponent of the instruction and whether the instruction is agreed or disputed. The bottom of each instruction must identify the legal authority supporting the instruction. If an instruction is disputed, the grounds for the objection (and any proposed modification or alternate instruction) must be concisely stated on the same page immediately following the disputed instruction. The party proposing the instruction may then state concisely the reasons supporting the instruction as proposed.

It is the Court’s practice to provide the jury with all jury instructions (including issue instructions) and display the proposed verdict form before opening statements. This requires that instructions initially be drafted using tenses that reflect the fact that the jury has not yet heard any evidence or argument. The parties, however, will be free to propose amendments to the final jury instructions and verdict form based on the evidence as it is actually presented at trial. The Court will also read the final instructions prior to closing arguments. Jury instructions may be used and electronically projected during opening statements and closing arguments.

7. Evidence Projection Systems.

Judge Durkin’s courtroom (1441) is equipped with a digital evidence projection system. The Court expects trial counsel to use this system. As early as possible prior to trial (not less than four weeks), counsel should contact Alexander Zeier, the Courtroom Technology Administrator, to schedule a training session. Mr. Zeier can be reached at (312) 435-6045.

II. Additional Pretrial Information

(1) Jury Selection:

On the morning of jury selection, prior to entering the courtroom, the venire will be given a written questionnaire with questions proposed by the parties and approved by the Court. Sample questions are included in the attached documents below. These are examples only, and will require revision for each particular case. Although some of these documents include more than two pages, the Court generally restricts questionnaires to a maximum of two pages, and the parties submissions should not include more than two pages of questions. The parties will be given copies of the jurors' written answers. The parties will also be given a copy of the list of potential jurors that is generated by the Clerk's Office.

Sample Criminal Questionnaire 1; Sample Criminal Questionnaire 2

The entire venire will then enter the courtroom and be sworn. The first twelve prospective jurors from the list will be called and seated in the jury box. The Court will question each prospective juror about their answers to the questionnaire. The Court will then ask the jurors the questions the parties and the Court determined at the final pretrial conference should be asked orally. Jurors will be given the opportunity to answer sensitive questions at sidebar if they wish.

The parties will then be given the opportunity to question the prospective jurors. The Court will then go to sidebar to hear challenges for cause and rule on those challenges.

A new group of twelve potential jurors will then be called in the order from the list to the jury box. The first 12 non-challenged jurors and (typically) 2 alernates will be seated. The same procedure will be followed until the entire venire has been questioned.

The parties will then submit peremptory challenges in writing simultaneously. The government is allowed 6 challenges and the defendant is allowed 10, pursuant to Federal Rule of Criminal Procedure 24, unless otherwise requested and approved by the Court. If the parties challenge the same juror, only one side will be charged for that challenge, beginning first with the government, and alternating between the parties for all later joint challenges. Once peremptory challenges have been submitted, the challenged prospective jurors will be excused. The remaining jurors will constitute part of the jury and cannot be stricken with later challenges. (No back-strikes will be allowed.) The remaining jurors will be asked to leave the jury box and sit in a separate area of the gallery.

(2) Instructions for Trial Counsel: Please Read Carefully

Your compliance with the following requests will be greatly appreciated:

(i) Please be on time for each court session. Trial engagements take precedence over any other business. If you have matters in other courtrooms, arrange in advance to have them continued or have a colleague handle them for you.

(ii) Court time may not be used for marking exhibits. This must be done in advance of the court session.

(iii) Please stand whenever you address the court. This includes the making of objections.

(iv) Please speak into the microphone whenever speaking on the record in court. A portable microphone is available is counsel wishes to move away from the stationary microphones.

(v) In your opening statement to the jury, do not argue the case. Confine yourself to a concise summary of the important facts.

(vi) Please stand when you question witnesses. (Counsel with physical disabilities will be excused from this requirement.)

(vii) On direct examination, if you intend to question a witness about a group of documents, avoid delay by having all the documents given to the witness when you start the examination.

(viii) When you object in the presence of the jury, make your objection short and to the point. Do not argue the objection in the presence of the jury, and do not argue with the ruling of the court in the presence of the jury. Such matters may be raised at the first recess and will not be waived by waiting until the recess.

(ix) Do not ask the court in the presence of the jury to declare that a witness is qualified as an expert or qualified to express an expert opinion.

(x) It is not necessary to request leave of court to approach a witness to show the witness an exhibit.

(xi) Do not ask for a recess before cross-examination. If the direct examination should end at about the time the court would recess anyway, e.g., lunch time, a recess will be taken. Otherwise, be prepared to commence cross-examination immediately upon conclusion of the direct.

(xii) Upon completion of a witness’s testimony in civil trials, jurors are permitted to submit written questions for the witness in accordance with procedures to be discussed at the Final Pretrial Conference. Such questioning by the jurors will also be permitted in criminal trials if all parties agree. The government and defense counsel should discuss this issue with the Court at the Final Pre-trial Conference.

(xiii) The Court permits interim statements if appropriate due to the length of the trial.

(xiv) Counsel are not permitted to contact jurors after trial without permission of the Court.

Thank you in advance for your cooperation.

(3) Final Pretrial Conference Topics

The following is a list of topics Judge Durkin will address during the final pre-trial conference. Counsel need only be prepared to discuss the topics that are also referenced in the final pretrial order. The remaining topics in the list below reference particular practices Judge Durkin will explain during the final pre-trial conference.

voir dire
written juror questionnaire
jury lists – alphabetical and random agreed
statement of case – short enough to fit on letter to jurors
motions in limine – agreed matters and preparation of order on rulings
exhibits: (i) pre-mark all; (ii) stipulate to as many as possible; (iii) seek admission outside jury’s presence; (iv) must be admitted before displayed on screen
demonstratives and timelines
schedule for submission of disputed deposition designations
trial day
elevators
sidebars
trial technology – make sure to test it outside the presence of the jury
preliminary instructions and issue instructions before opening
instructions before closing (can project on screen)
interim statements
note pads
jury binders
jury questions
moving around courtroom
can always approach witness without permission
no speaking objections, unless requested; just – irrelevant, asked and answered, hearsay
talking to jury after verdict

At least one week before a criminal trial, the parties will be scheduled to appear for a pretrial conference. The Defendant(s) must be present for the conference unless his presence is personally waived at a prior court proceeding.

I. Final Pretrial Submissions

The following should be filed five business days before the conference, unless otherwise indicated:

1. Agreed Case Statement.

The Court will read this statement to the jury during voir dire.

2. Witness Lists.

Separate lists for each side, noting witnesses who will be called to testify and witnesses who may be called to testify

For each witness, provide a very concise (2 or 3 sentences maximum) description of the witness and the witness’s role in the case.

The Court will read the names of witnesses on these lists during jury selection.

3. Exhibit Lists.

A list by each side of all exhibits the party will definitely use at trial (including demonstratives, summaries or other specially prepared exhibits), which includes the following:

the exhibit number for each document;
the date of the document;
a brief description of the document and a concise statement of the exhibit’s relevance;
whether there is an objection to admission of the document and, if so, a concise statement of the basis for the objection (e.g., Rule 403—undue prejudice or confusion; Rule 802—hearsay); and
a concise statement of the asserted basis of admissibility, if there is an objection.