United States District Court 

EASTERN DISTRICT OF TEXAS 

SHERMAN DIVISION 

BEHAVIOR ANALYST CERTIFICATION 

BOARD, INC. 

v. 

MICHAEL MOATES, MISTY IESCHNICK, 

and THE GLOBAL INSTITUTE OF 

BEHAVIORAL PRACTITIONERS AND 

EXAMINERS 

§ 

§

§

§ 

§

§

§

§ 

 

 Civil Action No. 4:23cv194 

 Judge Mazzant 

ORDER GOVERNING PROCEEDINGS 

This Order shall govern proceedings in this case. The following deadlines are hereby set: 

 1. Rule 26(f) attorney conference on or before: July 18, 2023

2. Complete initial mandatory disclosure required by this Order: July 28, 2023 

3. File joint report of attorney conference: August 1, 2023. This should follow initial 

mandatory disclosures, so a realistic proposal regarding depositions and other 

discovery can be included. 

 4. The case is SET for a Rule 16 management conference on Wednesday, August 

16, 2023, at 9:30 a.m. at the Paul Brown United States Courthouse, 101 E. Pecan 

Street, Sherman, Texas 75090. Lead counsel for each party, with authority to bind 

their respective clients, and all unrepresented parties, shall be present. Continuance 

of the management conference will not be allowed absent a showing of good cause1

. 

RULE 26(F) ATTORNEY CONFERENCE 

 

 Rule 26(f) requires attorneys of record and all unrepresented parties to confer and attempt 

in good faith to agree on a proposed scheduling order (see Appendix 1) and to electronically file a 

joint report outlining their proposals. The conference may be by telephone. 

 Before commencing the Rule 26(f) conference, counsel must discuss settlement options 

with their clients, including whether an offer or demand should be made at the Rule 26(f) attorney 

1

 Before the case management conference, counsel and unrepresented parties should review the most recent 

versions of the Federal Rules of Civil Procedure and the Local Rules for the Eastern District of Texas. The Local 

Rules are available on the Eastern District of Texas website (www.txed.uscourts.gov). 

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conference. Counsel should also inquire whether their clients are amenable to trial before a United 

States magistrate judge. Parties willing to consent should file the appropriate form electronically 

(see form on Eastern District of Texas website) as soon as possible, so that the case can be reset 

for management conference before the magistrate judge to whom the case is assigned. 

 The parties must include the following matters in the joint conference report: 

 1. A brief factual and legal synopsis of the case. 

 2. The jurisdictional basis for this suit. 

 3. A list of the correct names of the parties to this action and any anticipated additional 

or potential parties. 

 4. A list of any cases related to this case pending in any state or federal court, 

identifying the case numbers and courts along with an explanation of the status of 

those cases. 

 5. Confirm that initial mandatory disclosure required by Rule 26(a)(1) and this order 

has been completed. 

 6. Proposed scheduling order deadlines. Appendix 1 has the standard deadlines. 

Explain any deviations from standard schedule. Now is the time to inform the 

Court of any special complexities or need for more time before the trial setting. 

The standard schedule is planned so that there is time to rule on dispositive motions 

before parties begin final trial preparation. 

 7. Describe in accordance with Rule 26(f): 

(i) The subjects on which discovery may be needed, when discovery should be 

completed, and whether discovery should be conducted in phases or be 

limited to or focused on particular issues. 

(ii) Any issues relating to disclosure or discovery of electronically stored 

information (“ESI”), including the form or forms in which it should be 

produced (whether native or some other reasonably usable format) as well 

as any methodologies for identifying or culling the relevant and 

discoverable ESI. Any disputes regarding ESI that counsel for the parties 

are unable to resolve during conference must be identified in the report. 

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(iii) Any agreements or disputes relating to asserting claims of privilege or 

preserving discoverable information, including electronically stored 

information and any agreements reached under Federal Rule of 

Evidence 502 (such as the potential need for a protective order and any 

procedures to which the parties might agree for handling inadvertent 

production of privileged information and other privilege waiver issues). A 

party asserting that any information is confidential should immediately 

apply to the Court for entry of a protective order. 

(iv) Any changes that should be made in the limitations on discovery imposed 

by the Rules, whether federal or local, and any other limitations that should 

be imposed, as well as 

(v) Whether any other orders should be entered by the Court pursuant to Federal 

Rule of Civil Procedure 26(c) or 16(b), (c) 

 8. State the progress made toward settlement, and the present status of settlement 

negotiations, including whether a demand and offer has been made. If the parties 

would like to suggest a mediator, also state the name, address, and phone number 

of that mediator, and a proposed deadline for mediation. An early date is 

encouraged to reduce expenses. 

9. The identity of persons expected to be deposed. 

 10. Estimated trial time and whether a jury demand has been timely made. 

 11. The names of the attorneys who will appear on behalf of the parties at the 

management conference (the appearing attorney must be an attorney of record and 

have full authority to bind the client). 

 12. Whether the parties jointly consent to trial before a magistrate judge. 

 13. Any other matters that counsel deem appropriate for inclusion in the joint 

conference report or that deserve the special attention of the Court at the 

management conference. 

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DISCOVERY

 Initial mandatory disclosure pursuant to Rule 26(a)(1) shall be completed not later than 

10 days after the deadline for the Rule 26 attorney conference and shall include the following, 

in addition to information required by Rule 26(a)(1): 

 1. The correct names of the parties to the action. 

 2. The name and, if known, address and telephone number of any potential parties to 

the action. 

 3. The name and, if known, the address and telephone number of persons having 

knowledge of facts relevant to the claim or defense of any party, a brief 

characterization of their connection to the case and a fair summary of the substance 

of the information known by such person. This may be combined with the list of 

persons required under Rule 26(a)(1)(A)(i) so two lists are not needed. 

 4. The authorizations described in Local Rule CV-34. 

 5. A copy of all documents, electronically stored information, witness statements, and 

tangible things in the possession, custody, or control of the disclosing party that are 

relevant to the claim or defense of any party. This may be combined with 

disclosures under Rule 26(a)(1)(A)(ii) so duplication is avoided. In cases involving 

a disproportionate burden of disclosure of a large number of documents on one 

party, the parties may agree on prior inspection to reduce the need for copy. Parties 

are encouraged to agree upon provision of information by electronic means. 

 See Local Rule CV-26(d) for meaning of “relevant to the claim or defense of any party.” 

A party that fails to timely disclose such information will not, unless such failure is harmless, 

be permitted to use such evidence at trial, at a hearing, or in support of a motion. A party is 

not excused from making its disclosures because it has not fully completed its investigation of the 

case. Moreover, the proportionality standard set forth in Rule 26(b)(2)(C) should be applied in 

each case when formulating a discovery control plan. To further the application of the 

proportionality standard in discovery, requests for production of ESI and related responses should 

be reasonably targeted, clear, and as specific as practicable. 

 

 Early Rule 34 requests may be delivered in compliance with Rule 26(d)(2). See Fed. R. 

Civ. P. 26(d)(2). However, these requests are not considered served until the Rule 26(f) conference 

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has occurred. All other discovery shall not commence until the Rule 26(f) conference. See Fed. 

R. Civ. P. 26(d), 34. Depositions may be taken, and initial mandatory disclosure shall occur, 

before the Rule 16 management conference, so that counsel are in a position to intelligently discuss 

additional required discovery, and scheduling of the case. 

Following the management conference, the Court will enter a scheduling order setting 

deadlines controlling disposition of the case. If the Court concludes that a management 

conference is not necessary after receiving the parties’ 26(f) report, it may enter a scheduling 

order and cancel the management conference. 

 The fact that the scheduling order will have a deadline for completion of discovery is NOT

an invitation, or authorization, to withhold documents or information required to be disclosed as 

part of initial mandatory disclosure, under the guise of “supplementation.” Attorneys are expected 

to review their client’s files and to conduct at least preliminary interviews of their clients and 

potential witnesses under their control, so as to fully comply with the initial mandatory disclosure 

requirements by the deadline set in this order. This will allow experts to be timely identified and 

prepared to testify, witnesses to be efficiently deposed, and any follow-up paper discovery to be 

completed by the deadline to be set for completion of discovery. The Court expects that, in most 

cases, after reading the pleadings and having a frank discussion of the issues and discovery during 

the Rule 26 attorney conference, a review of the opposing party’s initial disclosures should alert 

an attorney to any remaining information which should have been disclosed, so that such 

information can be provided before the Rule 16 management conference. 

DISCOVERY DISPUTES

 A magistrate judge is available during business hours to immediately hear discovery 

disputes and to enforce provisions of the rules. The hotline is an appropriate means to obtain an 

immediate ruling on whether a discovery request is relevant to the claims or defenses and on 

disputes which arise during depositions. The hotline number is (903) 590-1198. See Local Rule 

CV-26(e). 

CONTESTED MOTION PRACTICE

 Counsel and parties shall comply with Local Rules CV-7, 10, 11, and 56, in addition to the 

Federal Rules of Civil Procedure. Local Rule CV-7 requires you to attach affidavits and other 

supporting documents to the motion or response. Labeled tabs on the attachments to the courtesy 

copy will make it easier to find them. 

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 If a document filed electronically exceeds twenty (20) pages in length, including 

attachments, a paper copy of the filed document must be sent contemporaneously to Judge 

Mazzant's chambers in Sherman. 

 Pursuant to Local Rule CV-7(b), highlight in the courtesy copy, the portions of the 

affidavits or other supporting documents which are cited in your motion or response. 

 Any reply or sur-reply must be filed in accordance with Local Rule CV-6 and Local Rule 

CV-7(f). The parties are reminded that “[t]he court need not wait for the reply or sur-reply before 

ruling on the motion.” Local Rule CV-7(f) (emphasis added). 

SAFEGUARDING PERSONAL INFORMATION 

The Judicial Conference of the United States has implemented policies to protect sensitive 

private information about parties, witnesses, and others involved in a civil, criminal, or bankruptcy 

case. To that end, all documents filed with the Court and made available to the public, whether 

electronically or on paper, should limit certain information as follows: 

• for Social Security numbers, use only the last four digits; 

• for financial account numbers, use only the last four digits; 

• for names of minor children, use only their initials; 

• for dates of birth, use only the year; and 

• (in criminal cases) for home addresses, use only the city and state. 

 If such information is elicited during testimony or other court proceedings, it will become 

available to the public when the official transcript is filed at the courthouse unless, and until, it is 

redacted. The better practice is for you to avoid introducing this information into the record in the 

first place. Please take this into account when questioning witnesses or making other statements in 

court. 

FAILURE TO SERVE

 Any defendant who has not been served with the summons and complaint within 90 days 

after the filing of the complaint shall be dismissed, without further notice, unless prior to such 

time the party on whose behalf such service is required shows good cause why service has not 

been made. See Fed. R. Civ. P. 4(m). 

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FICTITIOUS PARTIES

 The name of every party shall be set out in the complaint. See Fed. R. Civ. P. 10(a). The 

use of fictitious names is disfavored by federal courts. Doe v. Blue Cross & Blue Shield, 112 F.3d. 

869 (7th Cir. 1997). It is hereby ORDERED that this action be DISMISSED as to all fictitious 

parties. Dismissal is without prejudice to the right of any party to take advantage of the provisions 

of Fed. R. Civ. P. 15(c). 

SETTLEMENT

 Plaintiff’s counsel shall immediately notify the Court upon settlement. 

COMPLIANCE

 Attorneys and pro se litigants who appear in this court must comply with the deadlines set 

forth in the Federal Rules of Civil Procedure, the Local Rules for the Eastern District of Texas and 

this order. A party is not excused from the requirements of a Rule or scheduling order by 

virtue of the fact that dispositive motions are pending, the party has not completed its 

investigation, the party challenges the sufficiency of the opposing party’s disclosure, or 

because another party has failed to comply with this order or the rules. 

 Failure to comply with relevant provisions of the Local Rules, the Federal Rules of Civil 

Procedure, or this order may result in the exclusion of evidence at trial, the imposition of sanctions 

by the Court, or both. Counsel are reminded of Local Rule AT-3, particularly AT-3(I) & (J). 

IT IS SO ORDERED. 

 

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Appendix 1 

PROPOSED SCHEDULING ORDER DEADLINES 

 The following actions shall be completed by the date indicated.

1

 (The times indicated are 

the standard for most cases. Counsel should be prepared to explain the need for requested changes) 

____________________ Deadline for motions to transfer 

(1 week after mgmt conf.) 

____________________ Deadline to add parties 

(6 weeks after mgmt conf.) 

____________________ Mediation must occur by this date. 

 

six weeks prior to mediation ddl Deadline by which the parties shall notify the Court of the 

name, address, and telephone number of a suggested 

mediator, or request that the Court select a mediator. 

______________ ______ Disclosure of expert testimony pursuant to Fed. R. Civ. P. 

(10 weeks after mgmt. conf.) 26(a)(2) and Local Rule CV-26(b) on issues for which the 

party bears the burden of proof. 

_________________ ___ Deadline for Plaintiff to file amended pleadings 

(12 weeks after mgmt conf.) (A motion for leave to amend is required.) 

______________ ______ Disclosure of expert testimony pursuant to Fed. R. Civ. P. 

(14 weeks after mgmt. conf.) 26(a)(2) and Local Rule CV-26(b) on issues for which the 

party does not bear the burden of proof. 

____________________ Deadline for Defendant’s final amended pleadings 

(14 weeks after mgmt conf.) (A motion for leave to amend is required.) 

6 weeks after disclosure Deadline to object to any other party’s expert witnesses. 

of an expert is made Objection shall be made as a motion to strike or limit 

 expert testimony and shall be accompanied by a copy 

 of the expert’s report in order to provide the Court with 

 all the information necessary to make a ruling on any 

 objection 

____________________ Deadline for motions to dismiss, motions for summary 

(14 weeks after mgmt conf. judgment, or other dispositive motions. 

but no later than 110 days prior 

to deadline for submission of 

1

If a deadline falls on a Saturday, Sunday, or a legal holiday as defined in Fed. R. Civ. P. 6, the effective date is the 

first federal court business day following the deadline imposed. 

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Joint Final Pretrial Order) 

_________________ ___ All discovery shall be commenced in time to be completed 

(24 weeks after mgmt conf.) by this date. 

_____________________ Notice of intent to offer certified records 

(6 weeks before final pretrial conf.) 

____________________ Counsel and unrepresented parties are each responsible for 

(6 weeks before final pretrial conf.) contacting opposing counsel and unrepresented parties to 

determine how they will prepare the Joint Final Pretrial 

Order and Joint Proposed Jury Instructions and Verdict 

Form (or Proposed Findings of Fact and Conclusions of Law 

in non-jury cases). 

____________ ________ Deposition Designation due. Each party who proposes to 

(5 weeks before final pretrial conf.) offer a deposition shall serve on all other parties a 

disclosure identifying the line and page numbers to be 

offered. All other parties will have seven calendar days to 

serve a response with any objections and requesting cross 

examination line and page numbers to be included. Counsel 

must consult on any objections, and only those which cannot 

be resolved shall be presented to the Court. 

 The party who served an initial Video Deposition 

Designation is responsible for preparation of the final edited 

video in accordance with all parties’ designations and the 

Court’s rulings on objections. 

______ ______________ Motions in limine due 

(30 days before final pretrial conf.) File Joint Final Pretrial Order (See www.txed.uscourts.gov). 

_ _ Response to motions in limine due2

(2 weeks before final pretrial conf.) File objections to witnesses, deposition extracts, and 

exhibits, listed in pre-trial order.3 (This does not extend 

deadline to object to expert witnesses.) 

2

This is not an invitation or requirement to file written responses. Most motions in limine can be decided without a 

written response. But, if there is particularly difficult or novel issue, the Court needs some time to review the 

matter. To save time and space respond only to items objected to. All others will be considered to be agreed. 

Opposing counsel shall confer in an attempt to resolve any dispute over the motions in limine within five calendar 

days of the filing of any response. The parties shall notify the court of all the issues which are resolved. 

3

Within five calendar days after the filing of any objections, opposing counsel shall confer to determine whether 

objections can be resolved without a court ruling. The parties shall notify the court of all issues which are resolved. 

The court needs a copy of the exhibit or the pertinent deposition pages to rule on the objection. 

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File Proposed Jury Instructions/Form of Verdict (or 

Proposed Findings of Fact and Conclusions of Law) 

Date will be set by Court. If numerous objections are filed the court may set a 

Usually within 10 days prior hearing to consider all pending motions and objections. 

to final pretrial conf. 

August 1, 2024 Final Pretrial Conference at 9:00 a.m. at the Paul Brown 

United States Courthouse located at 101 East Pecan Street in 

Sherman, Texas. All cases on the Court’s Final Pretrial 

Conference docket for this day have been set at 9:00 a.m. 

However, prior to the Final Pretrial Conference date, the 

Court will set a specific time between 9:00 a.m. and 4:00 

p.m. for each case, depending on which cases remain on the 

Court’s docket. 

to be determined 10:00 a.m. Jury selection and trial (or bench trial) at the Paul 

Brown United States Courthouse located at 101 East Pecan 

Street in Sherman, Texas. Cases that remain for trial 

following the Court’s Pretrial docket will be tried between 

September 3, 2024, and September 27, 2024. A specific 

trial date in this time frame will be selected at the Final 

Pretrial Conference. 

 

 

 

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