Ewert v. eBay, Inc.

Filing 158

ORDER RE: SCHEDULING re 156 . Signed by Judge Ronald M. Whyte on December 16, 2011. (rmwlc2, COURT STAFF) (Filed on 12/16/2011)

4 Edward S. Zusman (SBN 154366) Kevin K. Eng (SBN 209036) MARKUN ZUSMAN & COMPTON, LLP 465 California Street, Suite 500 San Francisco, CA 94104 Telephone: (415) 438-4515 Facsimile: (415) 434-4505 5 Attorneys for Plaintiffs 1 2 3 John R. Fabry (Admitted Pro Hac Vice) BAILEY & GALYEN 18333 Egret Bay Blvd., Suite 120 Houston, TX 77058 Telephone: 281.335.7744 Facsimile: 281.335.5871 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 IN RE: EBAY LITIGATION Case No. C 07-2198 RMW 12 ORDER RE: SCHEDULING 13 14 15 Date: Time: Courtroom: Judge: 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER RE: SCHEDULING – C 07-2198 RMW N/A N/A 6, 4th Floor Hon. Ronald M. Whyte 1 2 3 Having reviewed the submissions of the parties and good cause appearing therefor, the Court orders as follows: 1. No Formal Pre-Motion Fact Discovery: a. 4 No later than November 30, 2011, Defendant will supplement the Sample 5 Data Set (Sample Data Set - eBay-ML000316.xls), which has already been produced to Plaintiffs, 6 with bid information and other data for the listings currently included in the Sample Data Set, on 7 which eBay may rely in connection with the Motion. b. 8 The Sample Data Set, together with all supplemental data provided by 9 eBay (collectively, “the Data Set”), may be used in connection with either Party’s pleadings and 10 expert reports in connection with the Motion. Both Parties reserve all rights to contest the other 11 Party’s arguments, analyses, findings, observations, and conclusions related to the Data Set. 12 Notwithstanding the foregoing, for purposes of this Motion, neither Party shall challenge the 13 other Party’s arguments, analyses, findings, observations, or conclusions with respect to the 14 Motion on the ground that the Data Set includes an insufficient number of listings to support 15 reliable conclusions in support of or in opposition to the Motion. 16 17 18 2. Due date for eBay’s Motion: eBay shall file its Motion for Summary Judgment no later than January 27, 2012. 3. Further Discovery: a. 19 Further Fact Discovery – No later than February 17, 2012 the parties shall 20 meet and confer regarding the scope of additional fact discovery to be conducted, if any, by 21 Plaintiffs related to the issues raised in the Motion. Any discovery conducted in connection with 22 this Motion shall be limited in scope to the issues presented in the Motion, i.e., the viability of 23 Plaintiffs’ theory of damages/restitution. The deadline for completing such further fact discovery 24 is April 17, 2012. Based on the court’s understanding of the nature of defendant’s contemplated 25 motion, little, if any, further discovery will be necessary. If the Parties cannot agree on the scope 26 or timing of additional fact discovery per this paragraph the parties may raise the matter with the 27 Court by letter or telephone conference call and need not file formal motions to compel additional 28 discovery. 1 ORDER RE: SCHEDULING – C 07-2198 RMW b. 1 Expert Discovery: i. 2 eBay’s Expert: No later than January 27, 2012, concurrently with 3 service of its Motion for Summary Judgment, eBay shall serve Plaintiffs with the report and 4 disclosure for any expert who offered testimony or analysis in support of its Motion. ii. 5 Plaintiffs’ Expert (if any): No later than April 23, 2012 Plaintiffs 6 shall serve eBay with any expert report and disclosure of any expert whose testimony or analysis 7 Plainitffs intend to offer in connection with Plaintiffs’ opposition to eBay’s Motion for Summary 8 Judgment. iii. 9 10 shall serve Plaintiffs with any Rebuttal expert report and disclosure. iv. 11 12 eBay’s Rebuttal Expert (if any): No later than May 11, 2012, eBay 4. Deadline Expert Depositions must be completed by June 8, 2012. for Plaintiffs’ Request to File Cross-Motion for Summary 13 Judgment/Partial Summary Judgment: If Plaintiffs intend to renew their request to file a cross- 14 motion for partial summary judgment as to the viability of their damages theory, they must 15 request permission to do so by submitting a letter to the Court no later than April 27, 2012. No 16 later than May 4, 2012, eBay may submit a letter to the Court setting forth its position in response 17 as to whether Plaintiff should be allowed to file a cross-motion. In the event the Court grants 18 Plaintiffs’ request, the Parties shall meet and confer regarding an alternative briefing schedule, 19 and the deadlines imposed in paragraphs 5 to 7 shall be vacated. 20 5. Deadline for Opposition to Motion for Summary Judgment: July 9, 2012 21 6. Deadline for eBay’s Reply Brief: August 6, 2012 22 7. Hearing: August 24, 2012 or as soon thereafter as may be heard by the Court. 23 All other deadlines are vacated as having been superseded by this Order. 24 IT IS SO ORDERED. 25 26 27 Dated: ____ _______, 2011 ________________________________ Hon. Ronald M. Whyte 28 2 ORDER RE: SCHEDULING – C 07-2198 RMW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 ORDER RE: SCHEDULING – C 07-2198 RMW