U.S. Department of Labor
Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036
CASE NO. 84-ERA-27
In the Matter of
HOWARD SAMUEL NUNN, JR.
Claimant
v.
DUKE POWER COMPANY
Respondent
ORDER AMENDING ORDER ISSUED DECEMBER 11, 1987
The parties have jointly moved this Tribunal to accept and
adopt the schedule and the understandings outlined below and to
modify this Tribunal's scheduling Order of December 11, 1987,
accordingly. In so moving, the parties have assured the Tribunal
that they do not seek and do not intend to effect any change in
either the tentative trial date set by this Tribunal (i.e., the
week of May 9, 1988) or the limitation on the time available to
the parties for conducting discovery likewise set.
The schedule and understandings worked out between the
parties are as follows:
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1) The parties shall have until close of business on
February 1, 1988, to draft and file an agreed
stipulation of facts ("stipulation"). The purpose of
said stipulation is to settle all factual issues that
may be relevant to Mr. Nunn's grievance with Duke
Power Company, but that are either immaterial to the
legitimate scope of this action or that cannot be the
subject of genuine dispute. The parties are committed
to resolve, by means of this stipulation, as many such
issues as in good faith can be so resolved. It is hoped
and believed, in particular, that the stipulation will
substantially resolve issues pertaining to the
timeliness of Mr. Nunn's complaint, and will therefore
obviate the need for this Tribunal's conducting a
pretrial hearing on the timeliness issue.
2) During the same period provided for the development of a
stipulation of facts as provided in paragraph 1 hereof,
the parties shall also agree to a discovery plan
providing for: a) limitations on the scope of discovery
corresponding to the parameters of such legitimately
contested issues as remain in light of the stipulation
of facts; b) logistical arrangements for the completion
of discovery in such a manner as to minimize the expense
and inconvenience to both parties; and c) a schedule for
all discovery to be taken that ensures that discovery is
completed within the time allotted herein.
3) Following the period allowed for the execution of the
stipulation and agreement to a discovery plan, the
parties shall have forty-five days, i.e., until close of
business on march 15, 1988, to conduct and complete
their pretrial discovery. The parties are, moreover,
committed to cooperate during this period in limiting
their discovery to relevant and material matters as to
which there can be genuine dispute, in arranging
mutually satisfactory discovery schedules, and in
conducting their discovery in such a way as to minimize
each other's expense and inconvenience. Should either
party fail to fulfill that commitment, however, the
other party may on that ground seek appropriate relief
from this Tribunal.
4) If at any time, during the period allowed for the drafting
and execution of the stipulation and reaching
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agreement on a discovery plan, either party reaches the
conclusion that the other party is not acting in good
faith in the preparation of the stipulation, the party
so concluding shall so notify the other party in
writing. Should such notice be given, the parties shall
have forty-five days from the day upon which it is given
to conduct and complete their discovery.
5) In order to facilitate the preparation of the parties'
stipulation and their conduct of discovery, the parties
shall, on or before Friday, January 8, exchange
tentative witness lists describing the identity of the
witnesses each party intends to call at trial and the
substance of the testimony each such witness is expected
to offer. It is understood that, in the course of
preparing the stipulation and in conducting discovery,
the parties may find it prudent to add a limited number
of witnesses to the list of those whose testimony will
be offered. It is agreed that the elimination of
witnesses from a party's witness list is generally to be
encouraged and the addition of witnesses is generally to
be discouraged. The parties commit, moreover, to make
the January 8 lists as accurate and complete as
possible, and to notify each other of any additions to
those lists in such time and manner as will not unduly
prejudice the other's opportunity to conduct discovery
and otherwise to prepare for trial. Failure of either
party to fulfill its commitment in this regard shall
preclude that party from adding any witnesses to its
witness list with respect to whom the commitment has not
been fulfilled.
6) On or before April 15, 1988, the parties shall exchange
a final list of witnesses, including a brief accurate
summary of their anticipated testimony.
7) On or before April 29, 1988, the parties shall identify
and exchange proposed trial exhibits.
8) The parties shall notify this office, on or before April
1, 1988, of the estimated length of trial and the
preferred locations for trial.
9) Failure to comply with the requirements of section 6
and 7 of this Order could result in the exclusion of
evidence.
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DAVID A. CLARKE,
JR.
Administrative Law Judge
Dated: JAN 11 1988
Washington, D.C.