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In re Brooke Corporation

United States District Court, Tenth Circuit

September 1, 2013

In re BROOKE CORPORATION, et al., Debtors.
v.
KUTAK ROCK, LLP, et al., Defendants. CHRISTOPHER J. REDMOND, Trustee of Brooke Corporation, Brooke Capital Corporation and Brooke Investments, Inc., Plaintiff, Adv. No. 10-06246-DLS

HUSCH BLACKWELL LLP, William Lynch D. Kan. #77919, Michael E. Norton Kan. #17508, John J. Cruciani Kan. #16883, Tyler Scott Kan. #78256, Attorneys for the Trustee.

LATHROP & GAGE LLP, James L. Moeller, KS Fed. Bar No. 77814, Attorneys for Defendants Sandler O’Neill & Partners, L.P., Macquarie Holdings (USA) Inc., and Oppenheimer & Co., Inc.

STINSON MORRISON HECKER LLP, John C. Aisenbrey, KS Bar #16187, Attorneys for Kutak Rock LLP.

SCHEDULING ORDER

Dale L. Somers United States Bankruptcy Judge.

On May17, 2013, pursuant to Fed.R.Civ.P. 16(b), the Court conducted a scheduling conference in this case with the parties.[1] Plaintiff Trustee (“Trustee”) appeared through its through counsel Michael E. Norton and John Cruciani of Husch Blackwell, LLP. Defendant Kutak Rock, LLP (“Kutak”) appeared through counsel, John Aisenbrey and Brian Sobczyk of Stinson Morrison Hecker, LLP, and Defendants Sandler O’Neill & Partners, L.P. Macquarie Holdings (USA) Inc., and Oppenheimer & Co, Inc. (collectively the “Underwriters”) appeared through their counsel James Moeller, Brian Fenimore and James Moloney of Lathrop & Gage LLP. Robert Orr is a defendant in the adversary proceeding and did not participate in the May 17, 2013 scheduling conference.

After consultation with the parties, the Court enters this scheduling order, summarized in the table that follows:

SUMMARY OF DEADLINES AND SETTINGS

Event

Deadline/Setting

Plaintiff's settlement proposal

08/15/13

Defendant's settlement counter-proposal

09/06/13

Confidential settlement reports to magistrate judge, with identification of agreed-upon mediator or other ADR neutral

09/16/13

Initial disclosures exchanged

07/31/13

All fact discovery completed

05/01/14

Experts disclosed on affirmative claims

05/15/14

Responsive experts disclosed

07/07/14

Rebuttal experts disclosed

08/01/14

All expert discovery completed

08/15/14

Preliminary witness and exhibit disclosures

03/24/14

Plaintiff’s motion to join additional parties or otherwise amend the pleadings

08/15/13

Defendants’ motions to join additional parties or otherwise amend the pleadings

09/05/13

Motions to dismiss for lack of personal jurisdiction, venue, propriety of the parties, or failure to state a claim

08/30/13

All other potentially dispositive motions (e.g., summary judgment)

09/15/14

Motions challenging admissibility of expert testimony

09/01/14

Comparative fault identification

09/06/13

Status conference

March 2014

Final pretrial conference

November 2014

Trial

01/15/15

1. Alternative Dispute Resolution (ADR).

a. By August 15, 2013, plaintiff shall submit to defendant a good faith proposal to settle the case. By September 6, 2013, defendants shall make a good faith response to plaintiff’s proposal, either accepting the proposal or submitting defendants’ own good faith proposal to settle the case. By September 16, 2013, each of the parties shall submit independently, by way of e-mail or letter (preferably the former), addressed to the magistrate judge (but not the district judge), a confidential settlement report. These reports shall briefly set forth the parties’ settlement efforts to date, current evaluations of the case, views concerning future settlement negotiations and the overall prospects for settlement, and a specific recommendation regarding mediation and/or any other ADR method, together with an indication concerning who has been selected by the parties (preferably jointly) to serve as a mediator or other neutral in an ADR process. These reports need not be served upon opposing parties and shall not be filed with the Clerk’s Office. The Court may thereafter order participation in an ADR process.

2. Discovery.

a. The parties shall exchange by July 31, 2013 the information required by Fed.R.Civ.P. 26(a)(1). The parties are reminded that, although Rule 26(a)(1) is keyed to disclosure of information that the disclosing party “may use to support its claims or defenses, unless solely for impeachment, ” the advisory committee notes to the 2000 amendments to that rule make it clear that this also requires a party to disclose information it may use to support its denial or rebuttal of the allegations, claim, or defense of another party. In addition to other sanctions that may be applicable, a party who without substantial justification fails to disclose information required by Fed.R.Civ.P. 26(a) or Fed.R.Civ.P. 26(e)(1) is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed. See Fed. R. Civ. P. 37(c)(1).
b. All fact discovery shall be commenced or served in time to be completed by May 1, 2014.
c. The parties intend to serve disclosures and discovery electronically, as permitted by D. ...

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