Free Order - District Court of California - California

Case 5:07-cv-05248-JW

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court conducted a Case Management Conference on February 26, 2008. Counsel for the respective parties were present. In light of the discussion at the conference, the Court orders as follows: A. Notice of Intent to Appoint a Special Master The Court suggested the appointment of a Special Master to assist in the management of this lawsuit. The parties were agreeable. Thus, due to the parties' consent, the complexity of legal and factual issues involved in this case, and the cost savings to the parties which will result from a more focused management of pre-trial matters, the Court concludes that the appointment of a Special Master in this lawsuit would be beneficial to all. Pursuant to FED. R. CIV. P. 53, the Court notifies the parties of its intent to appoint a Special Master. v. Advanced Micro-Fabrication Equipment Inc., et al., Defendants. / Applied Materials, Inc., Plaintiff, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION No. C 07-05248 JW SCHEDULING ORDER; NOTICE OF INTENT TO APPOINT A SPECIAL MASTER

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Scope of the Special Master's Appointment

The Special Master shall preside over all proceedings, with the power to hear and make reports and recommendations on the following pretrial matters: a. b. c. d. Timing of pre-answer motions or any responsive pleadings; Timing and content of initial disclosures; Case development processes (e.g., staged discovery and discovery schedules or plans); Disclosures or discovery; Disclosures or discovery disputes; Limits on the number of party experts.

8 e. 9 f. 10 United States District Court For the Northern District of California Furthermore, the Special Master shall have the authority to: 11 g. 12 (1) 13 14 15 16 17 18 19 (6) 20 21 22 23 h. 24 The Special Master shall exercise the power necessary or proper to regulate all proceedings 25 before him and shall do all acts and take all measures necessary or proper for the efficient 26 performance of his duties under this Order. 27 28 2 Audit and establish attorney fees to be awarded, if any. (7) The witnesses necessary to be called at trial, except for impeachment or rebuttal, together with the substance of the testimony to be given; A compilation of all documents and other items necessary to be offered as exhibits at trial, except for impeachment or rebuttal, together with a brief statement following each item describing its substance or purpose and the identity of the authenticating witness; (5) (2) (3) (4) The substance of the claims and defenses presented in the case and of the issues to be decided; The material facts not reasonably disputable; The disputed material factual issues; The relief claimed, including a particularized itemization of all elements of damages which may reasonably be claimed based upon the evidence which would be presented at trial; The pertinent undisputed and disputed points of law, with respect to liability and relief, including proposed jury instructions; Conduct pretrial conferences and hearings to establish:

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The Special Master shall file numbered interim reports or recommendations which: 1) advise this Court of the status of the case, and 2) recommend the disposition of any matter heard by him. The parties shall have ten (10) days from the date an interim report or recommendation is filed to file any objections. Any party opposing the objection(s) shall file an opposition within ten (10) days after the objection is filed. If no objection is filed, the Special Master's report or recommendation shall become a binding Order of the Court and the parties shall comply with the Order. If, however, an objection is filed, the matter shall be deemed submitted to the Court without oral argument twenty (20) days after the Special Master's report or recommendation is filed--unless an application is made and the Court orders the matter to be scheduled for hearing. Reports or recommendations pertaining to non-dispositive motions or pretrial discovery matters shall be reconsidered by this Court only where the Special Master's report or recommendation is clearly erroneous or contrary to law. 2. Fees and Costs of Special Master

Unless the Court receives a recommendation from the Special Master for some other apportionment, each party shall bear the cost of the Special Master on a per capita basis, payable in advance. The Special Master shall report to the Court on a periodic basis regarding the state of his fees and expenses. Unless otherwise ordered, the Special Master shall, in his report, advise the Court, without specifically identifying parties, as to whether the parties are current in their payment of his fees and expenses. 3. Nomination of Special Master

The Court nominates Tom Denver.1 The parties shall file any objections to Mr. Denver being named as Special Master on or before March 7, 2008. In their objections, the parties shall provide alternate nominations. If no objection is filed and Mr. Denver accepts his appointment, Mr. Denver shall file an affidavit as required by FED. R. CIV. P. 53(b)(3). The Court's appointment of the Special Master

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Mr. Denver is with Mediation Masters and may be reached at (408) 280-7883. 3

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shall become effective on March 10, 2008. Once appointment is effective, the parties shall notice all relevant discovery and pretrial motions before the Special Master and not the assigned Magistrate Judge Trumbull. B. Case Schedule October 24, 2008 January 12, 2009 September 22, 2008 September 12, 2008

Close of All Discovery (¶ 9) Last Date for Hearing Dispositive Motions (¶ 10) (.60 days after the Close of All Discovery) Preliminary Pretrial Conference at 11 a.m. (¶ 12) (.30 days before the Close of All Discovery) Preliminary Pretrial Conference Statements (¶ 11) (Due 10 days before conference)

None of the dates set in this Order may be changed without an order of the Court made after 12 a motion is filed pursuant to the Civil Local Rules of Court. 13 Standing Order to Lodge Printed Copy of "ECF" Papers 14 1. 15 the Court "ECF," when filing papers in connection with any motion or any pretrial conference, in 16 addition to filing the paper electronically, the filing parties shall lodge with the Clerk's Office a 17 printed copy of the papers, in an envelop clearly marked "Chamber's Copy ­ Lodged for the 18 Chambers of Judge James Ware." The "Chamber's Copy" envelop must state the case name and case 19 number and be delivered on or before the close of the next court day following the day the papers 20 are filed electronically. See Standing Order Regarding Case Management in Civil Cases. 21 Compliance with Discovery Plan and Reference to Magistrate Judge 22 2. 23 Case Management Statement. The parties are ordered to comply with the discovery plan. Any 24 disputes with respect to the implementation of the discovery plan and all disclosure or discovery 25 disputes are referred to the assigned Magistrate Judge. In addition, any disputes pertaining to 26 service or joinder of parties or claims are referred to the assigned Magistrate Judge. 27 28 4 The Court adopts the Discovery Plan proposed by the parties in their Joint In all cases, including cases covered by the Electronic Case Filing System of

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Document Management During Pretrial Discovery and Electronic Evidence Presentation 3. This Court has available a digital and video electronic evidence presentation

system. Before commencement of pretrial discovery, the parties are ordered to familiarize themselves with the system, and to meet and confer about whether the case will involve voluminous documentary. If so, as the parties identify documentary material which is likely to be used as trial exhibits, the parties are ordered to electronically store these materials in a fashion which will facilitate displaying them electronically during the trial. The parties are reminded that Civil L.R. 302(b) requires sequential numbering of exhibits during depositions and that numbering must be maintained for those exhibits throughout the litigation. Each proposed exhibit shall be pre-marked for identification. All exhibits shall be marked with numerals. The parties shall meet and confer on a division which will avoid duplication (e.g., Plaintiff: 1-99,000; Defendant #1: 100,000-299,999; Defendant #2: 300,000-500,000). Disclosure of Expert Witnesses 4. Any party wishing to present expert witness testimony with respect to a

claim or a defense shall lodge with the Court and serve on all other parties the name, address, qualifications, résumé and a written report which complies with Fed.R.Civ.P. 26(a)(2)(B) 63 days before close of discovery. Expert witness disclosure must be made with respect to a person who is either (a) specially retained or specially employed to provide expert testimony pursuant to Fed.R.Evid. 702 or (b) a regular employee or agent or treating physician who may be called to provide expert opinion testimony. 5. The parties are also required to lodge any supplemental reports to which any

expert will testify at trial in accordance with Fed.R.Civ.P. 26(a)(2)(B). 6. Any party objecting to the qualifications or proposed testimony of an expert

must file, serve and notice a motion to exclude the expert or any portion of the expert's testimony in writing in accordance with Civil Local Rule 7-2, for hearing no later than 42 DAYS AFTER BOTH EXPERT AND REBUTTAL EXPERT DISCLOSURES ON A MONDAY (LAW AND

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MOTION DAY) at 9:00 a.m. and preferably before or on the same day as the discovery cutoff date at 9:00 a.m. Rebuttal Expert Witnesses 7. If the testimony of the expert is intended solely to contradict or rebut opinion

testimony on the same subject matter identified by another party, the party proffering a rebuttal expert shall make the disclosures required by Fed.R.Civ.P. 26(a)(2)(B), no later than 49 days prior to discovery cutoff. Limitation on Testimony by Expert Witnesses 8. Unless the parties enter into a written stipulation otherwise, upon timely

objection, an expert witness shall be precluded from testifying about any actions or opinions not disclosed prior to the expert's deposition. This is to ensure that all factual material upon which expert opinion may be based and all tests and reports are completed prior to the expert deposition. Unless application is made prior to the close of expert discovery, each party will be limited to calling only one expert witness in each discipline involved in the case. Close of Discovery 9. Pursuant to Civil L.R. 26-2, all discovery, including supplemental

disclosure, depositions of fact witness and expert witnesses, must be completed on or before the deadline set forth in the Case Schedule above. Last date for Hearing Dispositive Motions 10. The last day for hearing dispositive motions is set forth in the Case Schedule

above. Any motions must be noticed in accordance with the Civil Local Rules of this Court. Preliminary Pretrial and Trial Setting Conference Statement and Proposed Order 11. The attorneys who will try the case are ordered to confer with one another

and to file and lodge with Chambers on or before the deadline set forth in the Case Schedule above a Preliminary Pretrial and Trial Setting Conference Statement and Proposed Order, stating their readiness for trial, the amount of time which the Court should allocate for trial and the calendar period for the trial. 6

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12.

The attorneys who will try the case are ordered to appear on the date set in

the Case Schedule at 11:00 a.m. for a Preliminary Pretrial and Trial Setting Conference. 13. With respect to the time allocation for trial, at the Preliminary Pretrial and

Trial Setting Conference trial counsel will be asked to stipulate to a time allocation to each side for the trial of the case. Once a stipulated allocation has been entered, the parties must plan their presentations to conform to the stipulated time allocation. 14. With respect to the calendar period for trial, based on the time allotted to the

case, a calendar period for trial will be set. In the event it becomes necessary to delay the start of trial because of the Court's calendar, the commencement date will trail from day-to day until the other matter is concluded or further order of the Court. C. Further Case Management Conference The Court is concerned to have expedited proceedings with respect to personal jurisdiction, particularly over Defendant AMEC Inc. Accordingly, the Court sets March 24, 2008 at 10 A.M. for a Further Case Management Conference to meet with the parties and the Special Master to discuss the scope and the plan for discovery regarding Plaintiff's allegations that AMEC Inc. is the alter ego of the AMEC Asian or AMEC Shanghai. In light of the March 24, 2008 conference, the Court VACATES the conference previously set for April 28, 2008.

Dated: March 4, 2008 JAMES WARE United States District Judge

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THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO: Harold J. McElhinny [email protected] Kenneth Alexander Kuwayti [email protected] Marc David Peters [email protected] Michael G. Strapp [email protected] Thomas F. Fitzpatrick [email protected] Dated: March 4, 2008 Richard W. Wieking, Clerk By: /s/ JW Chambers Elizabeth Garcia Courtroom Deputy

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