BRANDON ZITTERKOPF, Individually and on behalf of his minor son, Iziah Zitterkopf, et. al., Plaintiffs, v. LANNY HANKS, in his official and individual capacities, et. al., Defendants.

7:08CV3190.United States District Court, D. Nebraska.
September 2, 2010

MEMORANDUM AND ORDER
CHERYL ZWART, Magistrate Judge

IT IS ORDERED:

1. A settlement conference shall be held before the undersigned with counsel and
representatives of the parties on October 4, 2010 beginning at 9:00 a.m. in
chambers, 566 Federal Building and United States Courthouse, 100 Centennial
Mall North, Lincoln, Nebraska. The parties’ representatives and/or counsel
shall be prepared to participate and negotiate a settlement of this case during
the conference in accordance herewith.

2. Unless excused by order of the court, clients or client representatives with
complete authority to negotiate, consummate, and pay or accept payment in
full settlement of the case shall attend the settlement conference. Any
insurance company that is a party or is contractually required to defend or to
pay damages, if any, assessed within its policy limits in this case must have a
fully authorized settlement representative present. If trial counsel has been
fully authorized to commit the client to pay or to accept in settlement the
amount last proposed by the opponent, in counsel’s sole discretion, the client,
client representative, or insurance company representative, as applicable, need
not attend. The purpose of this requirement is to have in attendance a
representative who has both the authority to exercise his or her own discretion,
and the realistic freedom to exercise such discretion without negative
consequences, in order to settle the case during the settlement conference
without consulting someone else who is not physically present. In the event
counsel for any party is aware of any circumstance which might cast doubt on
a client’s compliance with this paragraph, s/he shall immediately discuss the
circumstance with opposing counsel to resolve it well before the settlement

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conference, and, if such discussion does not resolve it, request a telephone
conference with the court and counsel.

3. Counsel appearing for the settlement conference without their client
representatives or insurance company representatives, authorized as described
above, will cause the settlement conference to be canceled or rescheduled.
The non-complying party, attorney, or both may be assessed the costs and
expenses incurred by other parties and the court as a result of such
cancellation, as well as any additional sanctions deemed appropriate by the
court. Counsel are responsible for timely advising any involved non-party
insurance company of the requirements of this order.

4. Prior to the settlement conference, counsel shall discuss settlement with their
respective clients and insurance representatives, and shall exchange with
opposing counsel proposals for settlement so the parameters of settlement have
been explored well in advance. If as a result of such discussions, counsel for
any party believes that the parties’ respective settlement positions are so
divergent, or for any other reason, that settlement is not reasonably possible in
this matter, he or she shall seek a conference with the undersigned and
opposing counsel, by telephone or otherwise, to determine whether the
settlement conference should be canceled or postponed. To avoid unnecessary
incurring of travel and other expenses if the settlement conference is cancelled
or postponed, request for a conference to discuss cancellation or postponement
must be made on or before September 30, 2010.

5. Counsel shall submit a confidential settlement statement to the undersigned no
later than two working days prior to the conference, setting forth the relevant
positions of the parties concerning factual issues, issues of law, damages, and
the settlement negotiation history of the case, including a recitation of any
specific demands and offers that have been conveyed. The statement should
not exceed five (5) pages in length and will not be made a part of the case file.

6. Notwithstanding the provisions of Rule 408, Fed.R.Evid., all statements made
by the parties relating to the substance or merits of the case, whether written
or oral, made for the first time during the settlement conference shall be
deemed to be confidential and shall not be admissible in evidence for any
reason in the trial of the case, should the case not settle. This provision does
not preclude admissibility in other contexts, such as pertaining to a motion for
sanctions regarding the settlement conference.

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7. The trial of this case, currently set for October 4, 2010, is continued to February 22,
2011. The pretrial conference, currently scheduled for September 13, 2010, is
continued and will be re-scheduled if this case is not settled during the settlement
conference.

September 2, 2010.