CASE NO. 84-ERA-27

In the Matter of

HOWARD SAMUEL NUNN, JR.
    Claimant

    v.

DUKE POWER COMPANY
    Respondent

    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:

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

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.

       DAVID A. CLARKE, JR.
       Administrative Law Judge Dated: JAN 11 1988
Washington, D.C.

DAC/SR/dc