Judge Anne T. Berton

The Commissioner’s deadline to serve and file an answer or a Federal Rule of Civil Procedure 12 motion as provided under Rule 4 of the Supplemental Rules of Social Security Actions of the Federal Rules of Civil Procedure (hereinafter, the Supplemental Rules) IS TRIGGERED by a Notice of Electronic Filing that (a) is sent by the Court or its Clerk’s Office to the appropriate office within the Administration’s Office of General Counsel and to the United States Attorney for this District and (b) substantially states, “The Commissioner’s Answer is due within 60 days of the date of this Notice of Electronic Filing.”

The plaintiff's opening brief must contain: (a) A statement of the case. This statement must briefly describe the procedural history, including any disposition, at the administrative level and must set forth a concise statement of the case setting out the facts relevant to the issues submitted for review. Each statement of fact shall be supported by reference to the page in the record where the evidence may be found. (b) A statement of the issues for review. This statement should include a list of specific errors which the plaintiff claims were committed by the Administrative Law Judge or the Appeals Council. (c) A Summary of Arguments. The summary must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, and which must not merely repeat the argument headings. (d) Arguments. This section of the brief must contain the plaintiff's contentions and the reasons for them, with citations to the authorities and parts of the record on which the plaintiff relies.

The plaintiff’s opening brief must contain: (a) A statement of the case. This statement must briefly describe the procedural history, including any disposition, at the administrative level and must set forth a concise statement of the case setting out the facts relevant to the issues submitted for review. Each statement of fact shall be supported by reference to the page in the record where the evidence may be found. (b) A statement of the issues for review. This statement should include a list of specific errors which the plaintiff claims were committed by the Administrative Law Judge or the Appeals Council. (c) A Summary of Arguments. The summary must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, and which must not merely repeat the argument headings. (d) Arguments. This section of the brief must contain the plaintiff’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the plaintiff relies.

The Court reminds the Government of its continuing obligation to disclose any exculpatory evidence to the Defendant and to learn of any such evidence known to others acting on the Government’s behalf. See Kyles v. Whitley, 514 U.S. 419 (1995). The Government’s disclosure obligations apply even when the defendant has not requested any exculpatory evidence from the Government. See United States v. Agurs, 427 U.S. 97 (1976).

These obligations to timely provide exculpatory evidence are not diminished by the fact that such evidence also constitutes evidence that must be produced later under the Jencks Act, 18 U.S.C. § 3500, or by the fact that such evidence need not be produced according to Federal Rule of Criminal Procedure 16. See United States v. Campagnuolo, 59 F.2d 852 (5th Cir. 1979); Fed. R. Crim P. 16 advisory comm.’s notes to 1974 amend. (“The rule is intended to prescribe the minimum amount of discovery to which the parties are entitled.”). If the Government identifies any evidence which it believes to be exculpatory or favorable to the Defendant but not material, the Government shall submit such information to the Court for in camera review.

The Government shall disclose to the Defendant and permit inspection and copying of all information and materials known to the Government which may favor the Defendant on the issues of guilt or punishment within the scope of Brady v. Maryland, 373 U.S. 83 (1963), or which tends to impeach the Government witnesses. The Government shall also disclose to the Defendant the existence and substance of any payments or promises of immunity, leniency, or preferential treatment made to prospective Government witnesses within the scope of Giglio v. United States, 405 U.S. 150 (1972), and Napue v. Illinois, 360 U.S. 264 (1959).

If a party proposes an instruction from another circuit’s pattern jury instructions, that party must provide the section, title, and full text of the specific section containing the proposed instruction, along with the name of the circuit and the year/edition of the pattern jury instructions.

If the parties disagree on any instruction or set of instructions (as provided under a section of the pattern jury instructions), each party must provide the full text of their respective proposed charge, denoting the party’s name and highlighting, or otherwise pointing out, those portions of the instruction or the set of instructions about which the parties disagree, and the nature of the parties’ disagreement. If a specific instruction or set of instructions is proposed by only one party, that party must provide the full text of the proposed instruction or set of instructions, denoting that proposing party’s name, and the other party must include the nature of its objection, if any, to the proposed instruction or set of instructions.

For substantive offense jury instructions based on the Fifth Circuit Pattern Jury Instructions, the parties must provide the section, title, and full text (modified with case specific information as needed) of the specific section containing the proposed instruction.

For general and preliminary jury instructions based on the Fifth Circuit Pattern Jury Instructions, the parties need only provide a list of the applicable section numbers and titles (e.g., § 1.05 Presumption of Innocence, Burden of Proof, Reasonable Doubt), not the full text. But if a section requires case-specific information (e.g., § 1.18 regarding Expert Opinion Testimony requires the name of expert and subject matter of the expert’s opinion testimony) or if the parties substantively modify the text of any section in the Joint Proposed Charge, the parties must also provide the full text of the affected section as modified and clearly identify the changes.

The parties shall meet and confer, and then file a Joint Proposed Jury Charge and a Verdict Form consistent with the guidelines below. Upon filing, the parties shall promptly email a Microsoft Word version of the Joint Purposed Jury Charge and the Verdict Form as filed, to the undersigned’s email address at anne_berton@txwd.uscourts.gov (the email’s subject line must include the case number and the text “Joint Proposed Jury Charge”). The Court prefers that the Proposed Jury Charge be based on the Fifth Circuit Pattern Jury Instructions (the most recent edition), but the Court may consider instructions based on another circuit’s pattern jury instructions.

The parties shall file a list of any potential trial witnesses.

The parties shall jointly file a statement with an estimate of the probable length of trial.

The parties shall follow these instructions and upload all trial exhibits to Box. The file name for each uploaded exhibit must match that exhibit's proposed label on the record and follow the naming convention required by the Jury Evidence Recording System (JERS)

Before the pretrial conference, the Courtroom Deputy will email instructions with a Box File Request link to each party. The parties shall follow these instructions and upload all trial exhibits to Box. The file name for each uploaded exhibit must match that exhibit’s proposed label on the record and follow the naming convention required by the Jury Evidence Recording System (JERS): https://www.txwd.uscourts.gov/for-attorneys/jers-jury-evidence-recording-system/. Counsel must use specific, descriptive file names rather than vague or generic labels, as these file names will be visible to jurors when viewed through JERS at the end of a jury trial.

The parties shall file a Joint Exhibit List. Before filing, the parties must confer and discuss the admissibility of their respective exhibits. The Joint Exhibit List shall list the exhibits that the parties jointly agree to admit and identify any objections to the other party’s designated exhibits to which a party objects. The Court will address any disputed exhibits at a pretrial conference held before trial. The parties shall number their exhibits under Local Rule CV-16(h).

The parties shall file a list of any potential trial witnesses.

The parties shall file a Joint Motion in Limine but only after the parties confer and discuss their individual motion(s), if any. The Joint Motion in Limine shall identify the items that the parties jointly agree on and the items they dispute, including any related objections.

The parties shall file a Joint Exhibit List. Before filing, the parties must confer and discuss the admissibility of their respective exhibits. The Joint Exhibit List shall list the exhibits that the parties jointly agree to admit and identify any objections to the other party's designated exhibits to which a party objects.

The parties shall file a list of proposed stipulated facts, if any.

The parties shall file a Joint Motion in Limine but only after the parties confer and discuss their individual motion(s), if any. The Joint Motion in Limine shall identify the items that the parties jointly agree on and the items they dispute, including any related objections. The Court will address any disputed items at a pretrial conference held before trial.

Parties must ensure that all trial exhibits admitted into evidence are uploaded to Box before deliberations begin. Exhibits not uploaded will not be available for release to the jury through JERS.

Parties must ensure that all trial exhibits admitted into evidence are uploaded to Box before deliberations begin. Exhibits not uploaded will not be available for release to the jury through JERS.