IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LATOSHA MARSHALL, §

§

Plaintiff, §

§

V. § No. 3:22-cv-1084-K-BN

§

FREEDOM MORTGAGE CORP., §

Defendant.

§

§

§

STANDING ORDER ON DISCOVERY

AND OTHER NON-DISPOSITIVE MOTIONS

This case has been referred to the undersigned United States magistrate judge 

for pretrial management under 28 U.S.C. § 636(b) and an order of reference from 

United States District Judge Ed Kinkeade. See Dkt. No. 2.

This order governs the filing and disposition of all discovery-related motions, 

pleading disputes, and other non-dispositive motions in this case. See FED. R. CIV. P.

16(b). This order does not govern motions that are dispositive of a claim or defense

(and as to which the undersigned may only make a recommendation subject to the 

district judge’s de novo review), such as motions for injunctive relief, for judgment 

on the pleadings, for summary judgment, to certify or decertify a class action, to 

dismiss for failure to state a claim, to involuntarily dismiss a case, for sanctions (if 

sanctions, as requested, would dispose of a claim or defense), for new trial, for 

judgment as a matter of law, or to remand a case to state court. See generally FED.

R. CIV. P. 72(a)-(b); 28 U.S.C. § 636(a)-(b).

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1. Informal Resolution of Pretrial Disputes. The undersigned

encourages the informal resolution of all contested pretrial disputes. To this end, in 

appropriate circumstances as described below, the undersigned welcomes the parties’ 

scheduling a telephone conference with the undersigned before a non-dispositive 

motion is filed. This is not an invitation to engage in ex parte communications or 

obtain advisory rulings from the undersigned. Rather, the parties are required to 

attempt to resolve by agreement any disputes on non-dispositive matters by 

meaningfully conferring before seeking the undersigned’s involvement – but, if that 

fails to resolve the dispute, are encouraged, where appropriate, to seek an informal 

telephone conference with the undersigned to attempt to resolve relatively simple and 

straightforward disputes in an efficient and cost-effective manner. Some examples 

include: (a) motions for leave to amend pleadings within the deadline established in 

the pretrial scheduling order; (b) problems or issues that arise during depositions, 

such as excessive objections or a witness’s refusal to answer questions; 

(c) disagreements over the interpretation or effect of prior court orders; (d) extending 

pretrial deadlines or other scheduling matters; and (e) emergency situations that 

require immediate judicial intervention. This list is not exhaustive. 

Any request to schedule an informal telephone conference should be made –

after conferring with the party or parties affected by the dispute – by calling the 

undersigned’s chambers at (214) 753-2400. But an informal telephone conference 

should be requested only when the parties have a legitimate disagreement over a 

non-substantive, non-dispositive issue that can be resolved in a summary fashion. 

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For example, disputes over objections to discovery requests or privilege issues or 

disputes that involve questions of law on which the Court can expect the parties to 

provide substantive briefing in a joint report as discussed below generally are not 

appropriate for an informal telephone conference.

2. Pre-Motion Conference. Whether or not the parties have asked for an 

informal telephone conference, no non-dispositive motion may be filed unless the party 

seeking relief first confers by telephone or meets face-to-face with the party or parties 

affected by the dispute, including, where applicable, co-plaintiffs or co-defendants. See 

Dondi Props. Corp. v. Commerce Savs. & Loan Ass’n, 121 F.R.D. 284, 289-90 (N.D. 

Tex. 1988) (available at http://www.txnd.uscourts.gov/pdf/Notablecases/Dondi.PDF); 

accord FED. R. CIV. P. 26(c)(1); FED. R. CIV. P. 37(a)(1); N.D. TEX. L. CIV. R. 7.l(a).1

A proper pre-motion conference – whether conducted in person or by telephone 

1 Cf. MMAR Group, Inc. v. Dow Jones & Co., Inc., 187 F.R.D. 282, 290 (S.D. Tex. 1999) 

(noting “this Court’s practice to encourage parties to cooperate at every stage of the 

pretrial discovery process and to make liberal, voluntary productions of evidence and 

other tangible items that may lead to the discovery of evidence”); Alvarez v. Wallace, 

107 F.R.D. 658, 659 (W.D. Tex. 1985) (“With respect to the discovery process, 

[c]ooperation among counsel is not only helpful, but required, and the court has a duty 

to insure that cooperation is forthcoming.” (internal quotation marks omitted)); see 

generally FED. R. CIV. P. 1 (The Federal Rules of Civil Procedure “should be construed, 

administered, and employed by the court and the parties to secure the just, speedy, 

and inexpensive determination of every action and proceeding.”); FED. R. CIV. P. 1 

advisory committee’s note (2015) (“Rule 1 is amended to emphasize that just as the 

court should construe and administer these rules to secure the just, speedy, and 

inexpensive determination of every action, so the parties share the responsibility to 

employ the rules in the same way. Most lawyers and parties cooperate to achieve these 

ends. But discussions of ways to improve the administration of civil justice regularly 

include pleas to discourage over-use, misuse, and abuse of procedural tools that 

increase cost and result in delay. Effective advocacy is consistent with – and indeed 

depends upon – cooperative and proportional use of procedure.”).

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– must include the movant’s “personally engag[ing] in two-way communication with 

the nonresponding party to meaningfully discuss each contested [issue or point of 

contention or] discovery dispute in a genuine effort to avoid judicial intervention,” 

and the parties must “treat the informal negotiation process as a substitute for, and 

not simply a formalistic prerequisite to, judicial resolution of discovery disputes” and 

other disputes involving non-dispositive issues. Cardoza v. Blooming Brands, Inc., 

141 F. Supp. 3d 1137, 1145-46 (D. Nev. 2015) (internal quotation marks omitted).

If a party is represented by counsel, the attorney must participate in the 

pre-motion conference. Otherwise, the unrepresented party must participate in the 

conference. A conference must be held within three business days after a request is 

made, unless the parties agree otherwise.

In the context of discovery, counsel have “an obligation, as officers of the court, 

to assist in the discovery process by making diligent, good-faith responses to 

legitimate discovery requests.” McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 

894 F.2d 1482, 1486 (5th Cir. 1990); accord Innova Hosp. San Antonio, Ltd. P’ship v. 

Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719, 729 n.9 (5th Cir. 2018) (“While 

the Hospital did not file a motion to compel, this perhaps unadvised choice is not 

dispositive. ‘Counsel have an obligation, as officers of the court, to assist in the 

discovery process by making diligent, good-faith responses to legitimate discovery 

requests.’ McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485-86 

(5th Cir. 1990) (rejecting a party’s contention that sanctions could not be imposed 

when the opposing party had not first requested an order to compel and stating that 

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the party resisting discovery requests ‘must have a valid objection to each one in order 

to escape the production requirement’).”).

If a conference is requested in connection with a dispute involving written 

discovery, the parties should focus their discussions on the substantive information 

and documents that are made the basis or focus of the written discovery request. In 

other words, a party served with written discovery should fully answer each 

interrogatory or document request, subject to any objections, and affirmatively 

indicate whether any responsive information or documents have been withheld. See

FED. R. CIV. P. 33(b); FED. R. CIV. P. 34(b)(2); Heller v. City of Dallas, 303 F.R.D. 466 

(N.D. Tex. 2014). A privilege log must be produced for any documents, 

communications, or other materials withheld from production on the grounds of 

attorney-client privilege, work product, or other privilege, immunity, or protection. 

See FED. R. CIV. P. 26(b)(5). The party propounding discovery should not persist in 

opposing any objections if the responding party has produced or provided all 

responsive information and documents.

Any attorneys or parties who fail to comply with these guidelines or make 

themselves available for a pre-motion conference on request will be subject to 

sanctions. See FED. R. CIV. P. 16(f); FED. R. CIV. P. 26(g)(3).

3. Joint Report and Contested Motions. Any contested non-dispositive 

motion – that is, any discovery-related motion or other non-dispositive motion that 

the parties could not resolve by agreement through the pre-motion conference – that 

is filed in this case must comply with the requirements of Federal Rule of Civil 

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Procedure 7(b) and must attach as an exhibit a joint report. This joint report must 

contain the following information: (a) the names of the attorneys or unrepresented 

parties who participated in the pre-motion conference; (b) the date the conference was 

held and the amount of time during which the parties conferred; (c) the matters that 

were resolved by agreement; (d) the specific matters that need to be heard and 

determined by the Court; and (e) a detailed explanation of why agreement could not 

be reached as to those matters, including all arguments and authorities on which 

each party relies as to each matter that could not be resolved by agreement. 

The required joint report replaces – and excuses the party filing a contested 

non-dispositive motion from otherwise complying with – the requirements to include 

a certificate of conference under Northern District of Texas Local Civil Rule 7.1(b), to 

attach a proposed order under Northern District of Texas Local Civil Rule 7.1(c), and 

to file a separate brief under Northern District of Texas Local Civil Rule 7.1(d), as 

well as, for a Federal Rule of Civil Procedure 26(c)(1) motion for protective order, 

Federal Rule of Civil Procedure 37(a) motion to compel, or a Federal Rule of Civil 

Procedure 37(d) motion for sanctions, the requirement to include a separate 

certification that the movant has in good faith conferred or attempted to confer with 

the person or party failing to make disclosure or discovery in an effort to obtain it 

without court action.

But any party moving to compel under Rule 37(a) or moving for a Rule 26(c)(1) 

protective order or for Rule 37(d) sanctions must, through the motion and the joint 

report and joint appendix, attach a copy of the discovery requests at issue (such as 

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Federal Rule of Civil Procedure 34 requests for production or inspection, Federal Rule 

of Civil Procedure 33 interrogatories, a transcript of deposition testimony, deposition 

notice, or subpoena) and of the resisting party’s responses and objections to those 

requests; specifically and individually identify each discovery request in dispute and 

specifically, as to each request, identify the nature and basis of the dispute, including, 

for example, explaining how a response or answer is deficient or incomplete, and ask 

the Court for specific relief as to each request; and must include a concise discussion 

of the facts and authority that support the motion as to each discovery request in 

dispute. See Samsung Elecs. Am. Inc. v. Chung, 325 F.R.D. 578, 594-95 (N.D. Tex. 

2017).

Unless the parties agree otherwise, the parties must prepare the joint report 

within three business days of the pre-motion conference. The joint report must be 

signed (including through an electronic signature) by all attorneys and unrepresented 

parties who participated in the conference. If an attorney or unrepresented party is 

unavailable for signature, the unavailable attorney or unrepresented party may 

grant his or her permission for another attorney or unrepresented party to sign the 

joint report on his or her behalf (including through an electronic signature), as long 

as this permission is reflected on the report. 

Any counsel for a party and any unrepresented party who fails to cooperate in 

the joint report’s preparation or fails to sign the report, or provide for signature by 

permission, will be subject to sanctions.

The Court intends the joint report to enable the Court to determine each party’s 

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respective positions regarding the subject matter of a non-dispositive dispute in a 

single written submission and to take the place of the separate supporting brief 

required by Northern District of Texas Local Civil Rule 7.1(d) and the separately filed 

response and reply briefing required by Northern District of Texas Local Civil Rules 

7.1(e) and 7.1(f). To this end, the parties must present in the body of the joint report all 

arguments and authorities on which each party relies. And the parties must submit 

any supporting evidence and affidavits in a separately filed joint appendix that 

complies with the requirements of Northern District of Texas Local Civil Rule 7.1(i). 

The movant must coordinate with any party opposing the motion to include the 

opposing party’s arguments and authorities in the joint report and any evidence and 

affidavits in a joint appendix. And the arguments, authorities, and evidence on which 

each party relies must be provided to the opposing party before the parties finalize 

and sign the joint report and joint appendix, to permit each party to evaluate and 

respond to the other party’s or parties’ arguments, authorities, and evidence. 

The purpose of these requirements for each discovery-related or other 

non-dispositive motion is to require the parties to meaningfully confer and resolve as 

many disputes in advance of – and without the need for – filing a non-dispositive 

motion and then, if and when a motion must be filed, to require the moving party to 

include all parties’ arguments and positions and authorities in a single document (the 

joint report) – signed by all parties or counsel affected by the motion and accompanied 

by a single, separately filed joint appendix that includes all exhibits for the moving 

and opposing parties – that replaces the separate filing of a response and a reply and 

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allows the Court to act on the motion without waiting out Northern District of Texas 

Local Civil Rule 7.1’s default 35-day period for a response and reply.

The joint report and joint appendix requirements are intended to be a 

substitute for the usual motion-response-reply separate briefing sequence and to 

allow the Court to more expeditiously address and resolve the real disputes at issue 

on a non-dispositive motion. As such, if any party seeks to submit further briefing 

before the Court decides any unresolved matters, the joint report must explain why 

the party requesting further briefing could not fully present any arguments and 

authorities in the joint report. The Court, in its discretion, may allow further briefing 

on any party’s request.

Parties or counsel cannot block another party from filing a non-dispositive 

motion by refusing or failing to make themselves available for a pre-motion 

conference on request or by failing to cooperate in the joint report’s preparation or 

failing to sign the joint report or provide for signature by permission. After a 

reasonable effort, a party may file a non-dispositive motion with a joint report that 

includes whatever is available to the filing party and an explanation of the filing 

party’s efforts to obtain the cooperation and input of the party or parties affected by 

the discovery-related or other non-dispositive motion.

4. Filing, Service, and Status of Motions. All discovery-related and 

other non-dispositive motions and the required joint report and joint appendix must 

be filed electronically in accordance with Miscellaneous Order 61, the CM/ECF Civil 

and Administrative Procedures Manual, and the CM/ECF User Guide.

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In any action removed from state court, a party must refile, in compliance with 

the requirements of this order, any motions that were filed in state court to properly 

bring such motions before the Court. 

If any non-dispositive motion is pending and the parties are having serious 

discussions that might make it unnecessary for the Court to rule on the motion, the 

parties must immediately advise Shakira Todd, at (214) 753-2165, that such 

discussions are ongoing.

Any motion to quash or for protective order relating to a deposition that is filed 

in less than five business days before the scheduled or noticed date of the deposition 

will be summarily denied unless, on proper motion, the Court grants leave for the 

motion to be filed based on a showing of extraordinary or extenuating circumstances 

that prevented the requested relief from being presented to the Court at an earlier 

date.

5. Responses to Motions. In the event that the Court permits a written 

response and reply, the Court will set a briefing schedule by a separate order. The 

requirements of Northern District of Texas Local Civil Rules 7.1(d), 7.1(e), and 7.1(f) 

do not apply to discovery-related and other non-dispositive motions filed in this case. 

Unless permitted by a separately-ordered briefing schedule, no party may file any 

response or reply or supplemental pleadings, briefs, authorities, or evidence in 

connection with any non-dispositive motion other than through the required joint 

report and joint appendix.

6. Hearings and Oral Argument. The Court will decide most 

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non-dispositive motions based solely on the joint report and any accompanying 

evidence. See N.D. TEX. L. CIV. R. 7.1(g) (“Unless otherwise directed by the presiding 

judge, oral argument on a motion will not be held.”). But the Court, on its own 

initiative or on any party’s request, may in its discretion schedule oral argument prior 

to ruling on the motion. The parties should advise the Court in the joint report if they 

believe that oral argument would be particularly helpful in a given matter.

With regard to possible oral argument, the undersigned notes a trend today in 

which fewer cases go to trial and in which there are generally fewer speaking or 

“stand-up” opportunities in court, particularly for junior lawyers (that is, lawyers 

practicing for less than seven years). The undersigned strongly encourages litigants 

to be mindful of opportunities for junior lawyers to conduct hearings or oral argument 

before the Court, particularly hearings or oral arguments as to which the junior 

lawyer drafted or contributed significantly to the underlying motion or response. In 

those instances in which the undersigned is inclined to rule on the papers, a 

representation that the oral argument would be handled by a junior lawyer – or by a 

lawyer who has more than seven years in practice but who has had less than five 

speaking appearances in any federal court – will weigh in favor of holding oral 

argument. The undersigned understands that there may be circumstances in which 

having a junior lawyer handle a hearing or oral argument might not be appropriate 

– such as where no junior lawyers were involved in drafting the motion or response 

or where the motion might be dispositive in a “bet-the-company” type case. 

Even so, the undersigned believes it is crucial to provide substantive speaking 

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opportunities to junior or other less experienced lawyers and that the benefits of doing 

so will accrue to junior lawyers, to clients, and to the profession generally. The 

undersigned encourages all lawyers practicing before the Court to keep this goal in 

mind.

Additionally, the undersigned permits a party’s or parties’ lawyers’ splitting 

an oral argument and encourages, in appropriate cases, doing so with a more junior 

attorney who may have spent the most hours on the briefing.

7. Proposed Orders and Uncontested Motions. The Court will decide 

non-dispositive motions by written order. If, after the mandated pre-filing conference, 

the parties resolve by agreement any disputes on non-dispositive matters but still 

require an order from the Court (such as, for example, to extend a deadline), the 

movant must file an agreed or unopposed motion that includes a certificate of 

conference reporting that the motion is not opposed, and the parties must, at the 

same time that the motion is filed, submit an agreed order to the Court for approval 

and entry. Further, if the parties resolve a dispute by agreement only after a 

contested non-dispositive motion (accompanied by a joint report) presenting that 

dispute has been filed, the parties must submit an agreed order to the Court for 

approval and entry. And, if the Court decides a contested non-dispositive motion after 

a hearing or oral argument, the Court may require the parties to submit an order 

approved as to form based on the Court’s ruling.

All agreed or proposed orders must be submitted electronically to 

Horan_Orders@txnd.uscourts.gov. Any agreed or proposed order submitted to the 

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Court must be signed (including through an electronic signature) by all counsel of 

record and any unrepresented parties. If an attorney or unrepresented party is 

unavailable for a signature, the unavailable attorney or unrepresented party may 

grant his or her permission for another attorney or unrepresented party to sign the 

agreed or proposed on his or her behalf (including through an electronic signature), 

as long as this permission is reflected on the proposed order. The Court will not accept 

an unsigned proposed or agreed order. The failure to submit an agreed or proposed 

order in proper form may result in the imposition of sanctions.

8. Questions. Please note that deadlines in this order are for filing or 

delivery and are not mailing dates. 

Any questions concerning the requirements of this order may be directed to 

Shakira Todd at (214) 753-2165. If any party is concerned that any requirement of this 

order is unclear or is unsure whether a particular dispute or motion is subject to this

order’s requirements, the party or attorney should – after conferring with the party or 

parties affected by the dispute or motion – call Ms. Todd to present the question.

Questions concerning electronic filing procedures should be directed to the 

ECF Help Desk at (866) 243-2866.

9. Noncompliance. If a movant fails to comply with any part of this order 

in connection with a non-dispositive motion or if the joint report or agreed order is not 

timely filed or submitted as required in connection with a non-dispositive motion, the 

motion will be subject to being denied or stricken, without further notice, for failure to 

comply with this order. The parties are further warned that failing to comply with any 

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part of this order may result in the imposition of sanctions. See FED. R. CIV. P. 16(f).

10. Privilege and Work-Product Non-Waiver. In accordance with

Federal Rule of Evidence 502(d), any attorney-client privilege or work-product 

protection will not be waived by disclosure in connection with this case, and the 

production of privileged or work-product protected documents, electronically stored 

information (“ESI”), or information, whether inadvertent or otherwise, is not a waiver 

of the privilege or protection from discovery in this case or in any other federal or 

state proceeding. This order will be interpreted to provide the maximum protection 

allowed by Rule 502(d), but nothing contained in this order is intended to or will serve 

to limit a party’s right to conduct a review of documents, ESI, or information 

(including metadata) for relevance, responsiveness, and/or segregation of privileged 

and/or protected information before production. 

SO ORDERED.

DATED: May 17, 2022

__________________________________________

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE

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