Free Proposed Scheduling Order - District Court of Colorado - Colorado

Case 1:04-cv-01362-LTB-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01362 LTB-MJW QUALMARK CORPORATION, Plaintiff, v. GREGG K. HOBBS and HOBBS ENGINEERING CORPORATION, Defendants. SCHEDULING ORDER

1. DATE OF CONFERENCE AND APPEARANCES OF COUNSEL This case is set forth for a Scheduling/Planning Conference on December 4, 2007 at 8:00 a.m. in Courtroom A-502, Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, Colorado. The names, addresses, telephone numbers of counsel for each party are: Stephen D. Bell DORSEY & WHITNEY LLP 370 Seventeenth Street, Suite 4700 Denver, CO 80202 Telephone: (303) 629-3400 Facsimile: (303) 629-3450 Email: [email protected] Attorneys for Plaintiff QualMark Corporation Jack M. Merritts Lathrop & Gage LC 370 Seventeenth Street, Suite 4650 Denver, CO 80202 Telephone: (720) 931-3200 Facsimile: (720) 931-3201 Email: [email protected] James R. Benson, Jr. 303 East 17th Avenue, Suite 800 P.O. Box 18948 Denver, CO 80218 Telephone No.: 303- 832-5931 Email: [email protected] Attorneys for Defendants Gregg K. Hobbs and Hobbs Engineering Corporation

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2. STATEMENT OF JURISDICTION This is an action for copyright infringement pursuant to the Copyright Act of 1976, 17 U.S.C. § 501, et seq. This Court has both subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 28 U.S.C. § 1331 and 1338(a). 3. STATEMENT OF CLAIMS AND DEFENSES A. Plaintiff QualMark Corporation: This is an action for copyright infringement pursuant to the Copyright Act of 1976, 17 U.S.C. § 501, et seq. QualMark Corporation ("QualMark") has copyright ownership of certain seminar materials which have been subject to infringing use by Defendants Gregg K. Hobbs and Hobbs Engineering Corporation (collectively, "Hobbs" or "Defendants"). QualMark has a registered copyright with the United States Copyright Office, Certificate of Registration TX 5-803-774, for material used in connection with seminars which QualMark presents. Defendants had access to QualMark's copyrighted seminar material, copied it and published the same, providing it to seminar participants beginning in January 2000 and continuing to date. Defendants had a duty to abstain from any and all reproduction and distribution of QualMark's copyrighted material and return to QualMark all copies and electronic copies of the copyrighted seminar materials. Defendants have knowingly and willfully infringed and continue to infringe QualMark's copyrighted seminar material. Defendants, having filed an action for copyright infringement on the identical materials, are now barred by waiver and estoppel from alleging or claiming that the materials are "uncopyrightable" (scenes a faire).

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B.

Defendants Gregg K. Hobbs and Hobbs Engineering Corporation Defendants deny that they have or are infringing on any copyrighted materials that may

be owned by QualMark. Defendants deny that QualMark owns a copyright to any materials being used by them in the conduct of seminars. QualMark at a hearing on a motion for preliminary injunction identified certain documents that it claims are being used by Defendants in conducting seminars, but Defendants deny that those documents are being used by Defendants in such seminars, and therefore claim that there are no damages and no copyright infringement. As affirmative defenses, Defendants claim that QualMark's complaint fails to state a claim upon which relief can be granted, that some portions or all of QualMark's alleged copyrightable materials are uncopyrightable (scenes a faire), that any use by Defendants is fair use, that any infringement was done innocently in the belief that Defendants owned any such copyrights, that QualMarks' claims are barred by the doctrines of laches, waiver, estoppel, acquiescence, ratification, accord and satisfaction, unclean hands, that any use by Defendants of QualMark's alleged copyrights was done with implied or expressed consent, that QualMark has failed to mitigate its damages, if any, that QualMark's claims or a portion of them, are barred by the applicable statutes of limitation. Defendants also claim they are entitled to relief pursuant to rule or statute concerning frivolous and groundless actions. C. Other Parties: There are no other parties to this action at this time.

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4. UNDISPUTED FACTS The following facts are undisputed: a. QualMark manufactures product testing equipment which utilizes methods known

as HALT (an acronym for Highly Accelerated Life Testing) and HASS (Highly Accelerated Stress Screening). b. QualMark registered HALT and HASS seminar and informational materials with

the U.S. Copyright Office on or about October 23, 2003. c. and HASS. 5. COMPUTATION OF DAMAGES No computation of damages has been made at this time. Discovery on damages is required. Plaintiff intends to conduct discovery on issues to include the actual damages suffered by QualMark in the form of license fees and royalties it would have received for publication of the copyrighted seminar materials, compensation for Defendants unauthorized use of the copyrighted seminar material, and recovery from Defendants of QualMark's proportional share of profits on seminars conducted by Defendants in which they utilize QualMark's copyrighted seminar materials. Such discovery is intended by Plaintiff to include: (1) Obtaining copies of all seminar materials utilized by Defendants from January 1, Hobbs utilizes seminar materials in connection with presentations made on HALT

2000 through the present; (2) the present; Identifying all seminars presented by Defendants from January 1, 2000 through

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(3)

Identifying each participant at each seminar presented by Defendants from

January 1, 2000 through the present; (4) Identifying the price charged to each participant at each seminar presented by

Defendants from January 1, 2000 through the present; (5) Identifying all other sales or uses of seminar and informational materials by

Defendants concerning HALT and HASS from January 1, 2000 through the present and the charges related to the use of such materials. Defendants assert that Plaintiff has stipulated to limiting its damages to QualMark's proportionate share of profits on seminars conducted by Defendants in which they utilized QualMark's copyrighted seminar material. 6. REPORT OF PRECONFERENCE DISCOVERY AND MEETING UNDER FED. R. CIV. P. 26(f) a. Date of Rule 26(f) meeting:

Counsel for the parties have conferred by telephone and voice mail on November 27, 2007. b. Names of each participant and party he/she represented:

Plaintiff QualMark Corporation was represented by Stephen D. Bell; Defendants Gregg K. Hobbs and Hobbs Engineering Corporation were represented by Jack M. Merritts. c. Proposed changes, if any, in timing or requirement of disclosures under

Fed. R. Civ. P. 26(a)(1): None. d. Statement as to when rule 26(a)(1) disclosures were made or will be made:

Rule 26(a)(1) disclosures were exchanged on or about September 21, 2004. 5

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e.

Statement concerning any agreements to conduct informal discovery, including

joint interviews with potential witnesses, exchanges of documents, and joint meetings with clients to discuss settlement. If there is agreement to conduct joint interviews with potential witnesses, list the names of such witnesses and a date and time for the interview which has been agreed to by the witness, all counsel, and all pro se parties. The parties have not reached any agreements to conduct informal discovery, including joint interviews with potential witnesses or exchanges of documents. f. Statement as to whether the parties anticipate that their claims or defenses will

involve extensive electronically stored information, or that a substantial amount of disclosure or discovery will involve information or records maintained in electronic form. In those cases, the parties must indicate what steps they have taken or will take to (i) preserve electronically stored information; (ii) facilitate discovery of electronically stored information;(iii) limit associated discovery costs and delay; and (iv) avoid discovery disputes relating to electronic discovery. Describe any agreements the parties have reached for asserting claims of privilege or of protection as trial- preparation materials after production of computer-generated records. The claims or defenses of the parties will not involve extensive electronically stored information, and there will not be a substantial amount of disclosure or discovery that will involve information or records maintained in electronic form 7. CONSENT All parties have not consented to jurisdiction of a Magistrate Judge.

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8. CASE PLAN AND SCHEDULE a. Deadline for Joinder of Parties and Amendment of Pleadings: Friday, February 1, 2008. b. Discovery cut-off: The issues in this matter have been the subject of very thorough discovery in the Hobbs v. QualMark case, 03-WY-198 AJ (MJW), as well as a prior related arbitration proceeding between Mr. Hobbs and QualMark. Plaintiff does not believe that there is need for any extensive discovery, and that a two month discovery period is sufficient. Defendants request four months. Proposed discovery cut-off: Friday, April 25, 2008 for fact discovery; Friday, June 27, 2008 for expert witness discovery. c. Dispositive Motion Deadline: Friday, August 1, 2008, or five (5) weeks after the cut-off of expert witness discovery. d. (1) Expert Witness Disclosure: State anticipated fields of expert testimony, if any: Plaintiff anticipates designating experts in the following fields: (a) copyright law and practice; and (b) damage calculations based on copyright law. Defendants anticipate designating experts in the following fields: copyright law and damages sustained by QualMark, if any.

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(2)

State any limitations proposed on the use or number of expert witnesses: Each party may designate no more than two (2) expert witnesses.

(3)

The parties shall designate all experts and provide opposing counsel with all

information specified in Fed. R. Civ. P. 26(a)(2) on or before: Friday, April 25, 2008, or 8 weeks prior to the cut-off of expert witness discovery. (4) The parties shall designate all rebuttal experts and provide opposing counsel with

all information specified in Fed. R. Civ. P. 26(a)(2) on or before: Friday, May 23, 2008, or 4 weeks prior to the cut-off of expert witness discovery. (5) Notwithstanding the provisions of Fed. R. Civ. P. 26(a)(2)(B), no exception to the

requirements of the rule will be allowed by stipulation of the parties unless the stipulation is approved by the court. e. Deposition Schedule: Plaintiff states that it will take the deposition of Gregg Hobbs and other employees of HEC who have knowledge of HEC's HALT & HASS seminars. Defendants state that they may take the depositions of Charlie Johnson, Preston Wilson, Philip Gordon and Anne Marie Doolittle. The parties shall file their initial deposition schedule by Friday, December 14, 2007. f. Interrogatory Schedule: All interrogatories must be served on or before Friday, February 29, 2008. g. Schedule for Request for Production of Documents: All requests for production of documents must be served on or before Friday, February 29, 2008.

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h.

Schedule for Requests for Admission: All requests for admission must be served on or before Friday, February 29, 2008.

i. (1)

Discovery Limitations: Any limits which any party wishes to propose on the number of depositions: The parties agree that each party shall be entitled to a total of eight (8) depositions

pursuant to Fed. R. Civ. P. 30(a)(2)(A), including Rule 30(b)(6) depositions and depositions to preserve testimony, but excluding depositions of expert witnesses. (2) Any limits which any party wishes to propose on the length of depositions: One day (seven hours) in accordance with Fed. R. Civ. P. 30(d)(2). (3) Modifications which any party proposes on the presumptive numbers of

depositions or interrogatories contained in the federal rules: Twenty-five (25) interrogatories per side, without permission of the Court. The number of depositions is subject to the limitations of subsection 7(i)(1), above. (4) Limitations which any party proposes on number of requests for production of

documents and/or requests for admissions: Twenty-five (25) requests for production of documents and twenty-five (25) requests for admission per side, without permission from the Court. (5) Other Planning or Discovery Orders: The parties agree that all documents and other discovery in the Hobbs v. QualMark case, 03-WY-198 AJ (MJW) may be used in this case.

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9. SETTLEMENT Efforts were made to settle this matter, and the related case involving attorneys fees, through mediation with Judge James Miller. The parties were unable to reach an agreement on settlement. The parties agree that if additional information changes their respective positions, they will continue good faith discussions. 10. OTHER SCHEDULING ISSUES a. A statement of those discovery or scheduling issues, if any, on which counsel after a

good-faith effort, were unable to reach an agreement: See above. b. Anticipated length of trial and whether trial is to the court or jury: Five (5) day jury trial. 11. DATES FOR FURTHER CONFERENCES a. A settlement conference will be held on ___________________ at __________-

o'clock ____.m. It is hereby ordered that all settlement conferences that take place before the magistrate judge shall be confidential. ( ) ( ) Pro se parties and attorneys only need be present. Pro se parties, attorneys, and client representatives with authority to settle must be

present. (NOTE: This requirement is not fulfilled by the presence of counsel. If an insurance company is involved, an adjustor authorized to enter into settlement must also be present.)

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(X)

Each party shall submit a Confidential Settlement Statement to the Magistrate

Judge on or before one week prior to the Settlement Conference, outlining the facts and issues in the case and the party's settlement position. b Status conferences will be held in this case at the following dates and times:

_________________________________________________________________________ _________________________________________________________________________ c. A final pretrial conference will be held in this case on _______________ at

__________o'clock _____.m. A Final Pretrial Order shall be prepared by the parties and submitted to the court no later than five days before the final pretrial conference. 12. OTHER MATTERS In addition to filing an appropriate notice with the clerk's office, counsel must file a copy of any notice of withdrawal, a notice of substitution of counsel, or notice of change of counsel's address or telephone number with the clerk of the magistrate judge assigned to this case. In addition to filing an appropriate notice with the clerk's office, a pro se party must file a copy of a notice of change of his or her address or telephone number with the clerk of the magistrate judge assigned to this case. With respect to discovery disputes, parties must comply with D.C.COLO.LCivR 7.1A. The parties filing motions for extension of time or continuances must comply with D.C.COLO.LCivR 6.1D, by submitting proof that a copy of the motion has been served upon the moving attorney's client, all attorneys of record, and all pro se parties.

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13. AMENDMENTS TO SCHEDULING ORDER This scheduling order may be altered or amended only upon a showing of good cause.

DATED this ___ day of __________________ 2007. BY THE COURT:

____________________________________ United States Magistrate Judge APPROVED: Counsel for Plaintiff QualMark Corporation s/ Stephen D. Bell Stephen D. Bell DORSEY & WHITNEY LLP 370 17th Street, Suite 400 Denver, CO 80202-5647 Telephone No.: (303) 629-3400 Facsimile No.: (303) 629-3450

Co-Counsel for Defendants Gregg K. Hobbs and Hobbs Engineering Corporation s/ James R. Benson, Jr. James R. Benson, Jr. 303 East 17th Avenue, Suite 800 P.O. Box 18948 Denver, CO 80218 Telephone No.: 303- 832-5931 Email: [email protected] s/ Jack M. Merritts Jack M. Merritts Lathrop & Gage LC 370 Seventeenth Street, Suite 4650 Denver, CO 80202 Telephone: (720) 931-3200 Facsimile: (720) 931-3201 Email: [email protected]

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on November 30, 2007, I electronically filed the foregoing document, titled [Proposed] SCHEDULING ORDER, with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: [email protected] [James R. Benson, Jr.] [email protected] [Jack M. Merritts] s/ Stephen D. Bell Stephen D. Bell Attorneys for Plaintiff QualMark Corporation DORSEY & WHITNEY LLP 370 Seventeenth Street, Suite 4700 Denver, Colorado 80202 Telephone: (303) 629-3400 Facsimile: (303) 629-3450 Email: [email protected]

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