Pac-West Telecomm, Inc. v. AT&T Communications of California, Inc. et al

Filing 30

SCHEDULING CONFERENCE ORDER, signed by Judge Oliver W. Wanger on 10/07/2010. (Discovery due by 7/1/2011, Motions filed by 8/1/2011, Non-Dispositive Motions filed by 7/20/2011, Bench Trial set for 12/13/2011 at 09:00 AM in Courtroom 3 (OWW) before Jud ge Oliver W. Wanger, In Court Hearing set for 8/26/2011 at 09:00 AM in Courtroom 10 (GSA) before Magistrate Judge Dennis L. Beck, Motion Hearing set for 9/26/2011 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger, Pretrial Conference set for 10/31/2011 at 11:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger, Settlement Conference set for 7/5/2011 at 10:00 AM in Courtroom 10 (GSA) before Magistrate Judge Gary S. Austin, Mid-Discovery Status Hearing set for 02/18/2011 at 8:15 am in Courtroom 3 before Judge Oliver W. Wanger, and Mid-Discovery Joint Status Report due: 02/14/2011) (Martin, S)

Pac-West Telecomm, Inc. v. AT&T Communications of California, Inc. et al

Doc. 30

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 /// 1 Pre-Trial Conference Date: 10/31/11 11:00 Ctrm. 3 Trial Date: 12/13/11 9:00 Ctrm. 3 (CT-5 days) Dispositive Motion Hearing Date: 9/26/11 10:00 Ctrm. 3 Settlement Conference Date: 7/5/11 10:00 Ctrm. 10 PAC-WEST TELECOMM, INC., ) ) Plaintiff, ) ) v. ) ) AT&T COMMUNICATIONS OF ) CALIFORNIA, INC. and AT&T CORP., ) ) Defendants. ) ) ________________________________ ) ) AND RELATED COUNTERCLAIM ) ) 1:10-cv-0968 OWW GSA SCHEDULING CONFERENCE ORDER Mid-Discovery Joint Status Report Due: 2/14/11 Mid-Discovery Status Hearing: 2/18/11 8:15 Ctrm. 3 Discovery Cut-Off: 7/1/11 Non-Dispositive Motion Filing Deadline: 7/20/11 Non-Dispositive Motion Hearing Date: 8/26/11 9:00 Ctrm. 10 Dispositive Motion Filing Deadline: 8/1/11 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dockets.Justia.com

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I.

Date of Scheduling Conference. October 7, 2010.

II.

Appearances Of Counsel. Arent Fox Kintner Plotkin and Kahn by Michael B. Hazzard,

Esq., appeared on behalf of Plaintiff. Sidley Austin LLP by Lee L. Auerbach, Esq., David Lawson, Esq., and Brendan J. McMurrer, Esq., appeared on behalf of Defendant. III. Summary of Pleadings. A. Case. 1. Pac-West filed its complaint in response to AT&T's Plaintiff/Counterdefendant's Brief Statement of the

unlawful refusal to pay Pac-West for the work Pac-West has performed and continues to perform as an input to AT&T's provision of long-distance calling services to AT&T's customers. 2. Both parties are telecommunications carriers. By

way of background, there are two types of telecommunications carriers at issue in this case: local exchange carriers ("LECs") and interexchange carriers ("IXCs"), also known as long-distance carriers. Under both federal and state regulations, IXCs are

required to pay LECs' "access charges" for the input access services the LECs provide in carrying the calls that enable an IXC to offer its for-profit long-distance service. These access

charges are set forth in regulated price lists, known as tariffs, filed with the Federal Communications Commission ("FCC") and state public service commissions. The FCC has jurisdiction over

telecommunications traffic between calling and called parties in different states, while state public service commissions have 2

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jurisdiction over telecommunications traffic between callers in the same state. 3. Plaintiff/Counterdefendant is a certificated local

exchange carrier and has tariffs on file with the FCC and the public service commissions in the states of Arizona, California, Colorado, Idaho, Nevada, Oregon, Texas, Utah, and Washington. These tariffs describe the rates, terms, and conditions under which Pac-West provides its access services to IXCs, AT&T included. Pac-West has provided AT&T the tariffed services for But AT&T now refused to pay Pac-West's

which it has billed AT&T.

lawfully assessed access charges for the work Plaintiff performs for AT&T's benefit. Prior to April 2010, AT&T paid Pac-West's

invoices at Pac-West's tariffed rates, but after April 2010 AT&T ceased paying for all of the services it takes from Pac-West. AT&T has no basis for withholding any of Pac-West's charges. Pac-West therefore seeks an order compelling AT&T to pay the amounts it has withheld from Pac-West since April 2010 and to pay Pac-West's invoices going forward. B. Defendants/Counterclaimants' Brief Statement of the Case. 1. Pac-West has charged AT&T for tariffed "switched It is axiomatic that a

access" services that it did not provide.

carrier cannot lawfully bill or collect tariffed charges unless it has a valid tariff on file and in fact provides those services described in the tariff pursuant to the terms and conditions in the tariff and the governing statutes and rules. 2. There are two primary types of switched access

charges that Pac-West has unlawfully assessed on AT&T: 3

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"originating" switched access charges and "terminating" switched access charges. On the originating side, Pac-West has unlawfully

assessed switched access charges on AT&T for calls that did not "originate" from Pac-West's local customers or even in Pac-West's local service territories. Although discovery will be necessary

to determine the precise routing of the traffic at issue, certain of the calls at issue actually originated in countries or states far from Pac-West's networks and were then fraudulently "reoriginated" by Pac-West to make it appear as if Pac-West was entitled to collect end office local switching and other switched access charges for such traffic. 3. Some of these calls were originated by parties

engaged in unlawful schemes to route enormous volumes of computer-generated "dead air" and "tone-at-interval" calls to AT&T "8YY" customers' call centers (e.g., 1-800, 1-888, and 1-877 numbers) for the sole purpose of generating access charge billings that Pac-West would share with the fraudsters. In other

cases Pac-West "re-originated" calls that were actually initiated by customers of wireless and Voice over Internet Protocol ("VoIP") providers. In each case, Pac-West unlawfully billed and

collected charges from AT&T as if Pac-West was itself originating these calls from its own end user customers. 4. Pac-West's switched access charges on the

terminating side are unlawful for similar reasons because the traffic at issue did not "terminate" in Pac-West's local service territory or to Pac-West's local customers. Rather, the calls

were merely routed through Pac-West facilities to distant locations on other networks - in many cases to foreign countries 4

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in connection with schemes to provide "free" or low-cost calling to foreign countries funded by Pac-West's unlawful access charge collections. Upon information and belief, Pac-West agreed to

share its access charge collections with the sponsors of these calling schemes (or other intermediate carriers). 5. Pac-West sent invoices to AT&T containing charges

for switched access services that it purportedly provided pursuant to its interstate and intrastate tariffs. AT&T paid

these invoices until April 2010, when it disputed Pac-West's invoices and began withholding payment after discovering PacWest's unlawful billing practices. Through its Counterclaims,

AT&T is seeking a refund of the unlawful charges that AT&T already has paid, and a declaratory ruling that such charges are unlawful and need not be paid in the future. IV. Orders Re Amendments To Pleadings. 1. The parties agree that amendments may be filed without

leave of court or other requirement of a Rule 15 motion on or before December 24, 2010. The parties agree that responses to

any amended pleadings shall be filed within twenty (20) days after electronic service. V. Factual Summary. A. Admitted Facts Which Are Deemed Proven Without Further

Proceedings. 1. Plaintiff/Counterdefendant Pac-West Telecomm, Inc.

is a corporation incorporated under the laws of the State of California and is a competitive local exchange carrier ("CLEC") that operates primarily in Arizona, California, Colorado, Idaho, Nevada, Oregon, Texas, Utah and Washington. 5

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2.

Defendant/Counterclaimant AT&T Communications of

California, Inc. is a California corporation and AT&T Corp., a corporation incorporated under the laws of the State of New York. 3. Defendants/Counterclaimants are, among other

things, interexchange carriers that provide interstate and intrastate interexchange service throughout the United States. 4. Defendants/Counterclaimants have disputed

Plaintiff/Counterdefendant's current and past invoices. B. Contested Facts. 1. Pac-West submits that its invoices to AT&T

accurately reflect the tariffed services it provides to AT&T, and have always done so. 2. Prior to AT&T's current manufactured dispute, AT&T

made regular monthly payments to Pac-West for the same traffic at issue in this case for several years. During the week of April

19, 2010, however, AT&T notified Pac-West that it had received complaints concerning possible fraudulent calls to its toll-free subscriber customers. Pac-West began an immediate investigation

of AT&T's allegations and by Monday, April 26, 2010, Pac-West had identified two customers it determined were responsible for the traffic AT&T alleged was fraudulent and terminated its provision of local exchange service to these entities. Although the

traffic generated by these two entities was an insignificant percentage of the total traffic at issue in this case, AT&T informed Pac-West that it would be withholding all of Pac-West's invoiced charges for the month of April, 2010. 3. Since that time, AT&T has only belatedly and in a

piecemeal fashion indicated exactly what charges AT&T was 6

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disputing and proceeded to unilaterally recalculate Pac-West's invoices based on what AT&T considered a fair rate for the inputs necessary to provide its long-distance service. For certain

categories of traffic in which AT&T competes directly with PacWest, however, AT&T has unilaterally set a rate of zero for the inputs Pac-West provides and therefore refuses to compensate PacWest at all in order to gain an unfair advantage for its competing service offering. 4. The originating and terminating access traffic

that Pac-West has invoiced to AT&T utilize industry-standard routing practices. While AT&T tries to vilify these standard

routing practices, these are 8YY and other routing arrangements that, upon information and belief, AT&T and its CLEC and wireless affiliates have utilized for years. Further, AT&T's local

exchange carrier affiliates demand access charges for the same access services that Pac-West is providing to AT&T, regardless of what protocol is utilized in transmitting a particular call, whether it be VoIP or the older Time Division Multiplexing ("TDM") protocol. AT&T's local exchange carrier has argued in

cases across the country that access charges must apply to similar traffic. On information and belief, AT&T also

compensates other LECs with which it has reached sweetheart deals for the very same traffic in dispute here at much higher rates, but refuses to share this information with Pac-West. 5. Pac-West has billed AT&T switched access charges

purportedly pursuant to its interstate and intrastate switched access tariffs, and thus must demonstrate that it did, in fact provide switched access services to AT&T pursuant to such 7

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tariffs.

There are several factual inquiries involved in this

determination, including the nature of the traffic at issue, whether the traffic was routed to or from an "end user subscriber[]" within the meaning of Pac-West's tariffs, and whether the traffic was routed over Pac-West's "local exchange circuits" within the meaning of its tariffs. Further, because

Pac-West's interstate switched access tariff, prior to its June 2010 revisions, incorporated the switched access tariffs of several other carriers, Pac-West must demonstrate that it provided switched access service to AT&T pursuant to each of these tariffs as well, which will require additional factual inquiries. 6. For example, under one such tariff incorporated by

reference in Pac-West's tariff, Pacific Bell Telephone Company Tariff F.C.C. No. 1, Pac-West must demonstrate that the traffic at issue (1) originated from or was terminated to an "end user," (2) at an "end user's premises," (3) over "common . . . facilities," and (4) within Pac-West's local exchange territory. Each of these determinations will require findings of fact, including Pac-West's relationship with the purported end-users; the services, if any, Pac-West provided to the purported end users; any payments exchanged between Pac-West and the purported end users; the physical location of the purported end users; and the call routing for the traffic at issue, including the facilities and equipment used to transmit such traffic. 7. Further, there are factual issues as to the volume

of fraudulent "re-originated" traffic; the volume of traffic delivered to international destinations; the volume of traffic 8

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from or to customers of VoIP providers; and the volume of traffic Pac-West determined to be jurisdictionally interstate and intrastate, and how Pac-West made such determinations. 8. Pac-West, as the purported provider of the

switched access services at issue, is the primary source of the information needed to resolve these factual inquiries. Pac-

West's tariffs, Pac-West's services, Pac-West's call routing, and Pac-West's relationships are at issue, and none of the matters in dispute in the pleadings involve AT&T's local exchange carrier affiliates. AT&T raised its concerns with Pac-West and requested

information that would support Pac-West's switched access charges; however, Pac-West refused to provide AT&T with details that could be used to determine these facts. Thus, based on the

information available to it, AT&T concluded that Pac-West was not providing the switched access service for which it was billing AT&T, and that it would withhold payment of the disputed charges as permitted by Pac-West's tariffs. Discovery of Pac-West

concerning the factual disputes above is thus essential to resolving this case. VI. Legal Issues. A. Uncontested. 1. Jurisdiction exists under 28 U.S.C. § 1331 and 47 Jurisdiction is also invoked under 28

U.S.C. §§ 151, et seq. U.S.C. § 1367. 2. 3.

Venue is proper under 28 U.S.C. § 1391. As to supplemental claims, including a Business &

Professions Code §17200 claim asserted by AT&T, the substantive law of the state of Arizona, California, Colorado, Idaho, Nevada, 9

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Oregon, Texas, Utah and Washington provide the rule of decision. B. Contested. 1. AT&T has asserted various legal arguments to

excuse its unlawful refusal to pay Pac-West's tariffed access charges as invoiced. AT&T's first argument is that Pac-West's

tariffs are void because they contain cross-references to other carriers' tariffs. Pac-West submits that AT&T's argument in this

regard is without merit, as it ignores the applicable FCC tariffing regulations for non-dominant carriers that expressly permit carriers like Pac-West to cross-reference dominant carriers' tariffs, and further ignores controlling precedent holding that AT&T does not have a private right of action to seek relief from this Court based on the (inapposite) tariffing regulations on which AT&T relies. In any case, Pac-West's

tariffs, and the rates, terms and conditions contained in those tariffs, comply with all applicable federal and state regulations. 2. AT&T further objects to other artificial

subcategories of traffic that Pac-West handles on behalf of AT&T, such as toll-free "re-originated" traffic or traffic that is initiated by VoIP end users. AT&T relies upon distinctions

without a difference in terms of whether a particular subset of telecommunications traffic is compensable under Pac-West's applicable tariff. In addition, AT&T, for much of Pac-West's

traffic, does not content itself with substituting its own rate for Pac-West's tariffed rates, itself a form of illegal selfhelp, but jumps to the unsupportable conclusion that access services for such traffic are free of charge. 10

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3.

AT&T, moreover, has refused to abide by the For

dispute-resolution provisions of Pac-West's tariffs.

example, Pac-West's California intrastate access tariff requires a carrier-customer to dispute any charges billed pursuant to that tariff within ninety days, which AT&T failed to do. 4. Equally irrelevant is AT&T's characterization of

Pac-West's commercial relationships with some of its customers. AT&T asserts that Pac-West treats certain of its customers, such as VoIP providers, as business partners rather than as bona fide customers, which, according to AT&T, disqualifies these entities as "end-users" under Pac-West's tariffs. Pac-West's contracts

with these customers, however, comply with federal and state regulations, and in no way alter or affect the access services that Pac-West provides to AT&T. This is but another example of

AT&T attempting to obfuscate through name-calling the simple fact that Pac-West has provided, and continues to provide, AT&T with the switched access services, as defined in Plaintiff's tariffs, that enable AT&T to provide its for-profit long-distance services, and that AT&T is improperly trying to co-opt those services without due compensation. 5. Pac-West is not permitted to engage in fraudulent

and unlawful schemes to extract payments from AT&T for switched access services that Pac-West has not provided. Pac-West has

billed AT&T switched access charges purportedly pursuant to its interstate and intrastate switched access tariffs, and thus must demonstrate that it did provide switched access services to AT&T pursuant to such tariffs. The validity, applicability, and

interpretation of Pac-West's tariffs are disputed questions of 11

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law.

Whether Pac-West provided switched access service to AT&T

pursuant to its tariffs also involves questions of law. Additionally, whether Pac-West has violated the Communications Act, the FCC's rules and federal and state law, by billing and collecting switched access charges for the traffic at issue, presents questions of law. 6. Pac-West's tariffs are invalid for several

reasons, including, for example, because the tariffs do not specify the rates applicable to the switched access services purportedly provided to AT&T, which constitutes a violation of Section 203 of the Communications Act, 47 U.S.C. § 203. Moreover, even if its tariffs were valid, Pac-West must demonstrate that it provided switched access services to AT&T pursuant to such tariffs, which will require Pac-West to demonstrate, inter alia, that the traffic at issue was routed to or from an "end user" and an "end user's premises," as those terms are defined in its tariffs. Further, in order to prevail

Pac-West must avoid a finding that it violated the Communications Act and other federal and state law by engaging in fraudulent and unlawful schemes and by billing AT&T for switched access services it did not provide. VII. Consent to Magistrate Judge Jurisdiction. 1. The parties have not consented to transfer the

case to the Magistrate Judge for all purposes, including trial. VIII. 1. Corporate Identification Statement. Any nongovernmental corporate party to any action in

this court shall file a statement identifying all its parent corporations and listing any entity that owns 10% or more of the 12

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party's equity securities.

A party shall file the statement with

its initial pleading filed in this court and shall supplement the statement within a reasonable time of any change in the information. IX. Discovery Plan and Cut-Off Date. 1. The parties have agreed to conduct discovery within the AT&T

limits imposed by the Federal Rules of Civil Procedure.

anticipates that it may need to take discovery outside of the United States, which could consist of requests for production of documents or depositions. AT&T also anticipates that it may The parties will

utilize video recording of depositions.

negotiate and agree upon an appropriate protective order for the discovery materials that will be produced and exchanged in this case. 2. Discovery relating to electronic, digital, and/or

magnetic data: a. Notification of intent to seek electronically Each party expressed its intent to seek

stored information:

electronically stored information, as well as to identify the categories of such information. b. Plaintiff/Counterdefendant intends to seek the

following categories of electronically stored information: i. Electronically stored documents and

information, as defined in Fed. R. Civ. P. 34(a)(1)(A), including, without limitation, e-mails, word processing documents, spreadsheets, databases, and PDFs; ii. Exchange Message Interface ("EMI") records,

Call Detail Records ("CDRs"), and any electronically stored 13

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documents, data, or information derived from such records; iii. Electronically stored data or other information used in the course of calculating or creating invoices; iv. Electronically stored financial and

accounting data or other information relevant to the damages claimed by AT&T in this litigation; v. Electronically stored financial and

accounting data or other information relevant to the revenues and profits AT&T earns for the traffic at issue in this case; vi. Electronically stored financial and

accounting data or other information relevant to the rates paid by AT&T to other carriers for services comparable to those PacWest provides to AT&T. c. Defendants/Counterclaimants intend to seek the

following categories of electronically stored information: i. Electronically stored documents and

information, as defined in Fed. R. Civ. P. 34(a)(1)(A), including, without limitation, e-mails, word processing documents, spreadsheets, databases, and PDFs; ii. Exchange Message Interface ("EMI") records,

Call Detail Records ("CDRs"), and any electronically stored documents, data or information derived from such records; iii. Electronically stored data or other information used in the course of calculating or creating invoices; iv. Electronically stored financial and

accounting data or other information relevant to the damages 14

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claimed by Pac-West in this litigation. c. Information: Conferral Regarding Electronically Stored The parties have conferred regarding the following

matters during the Rule 26(f) conference: i. Computer-based Information: The parties have

conferred and presented to each other that litigation hold notices have been sent to the appropriate officers and employees within their respective organizations, which the parties have agreed will be sufficient to avoid accusations of spoliation. ii. E-mail Information: The parties have

conferred regarding e-mail relevant to claims and defenses at issue in this litigation and have agreed to work together to develop mutually agreeable search terms to capture such information. iii. Deleted Information: The parties do not

anticipate the need to restore deleted information, except for information that is readily accessible, such as from a "Recycle Bin," "Deleted Items" folder, or comparable location on a user's computer. iv. Back-up Data: The parties do not anticipate

the need for discovery of any back-up data. The Court orders: 1. The parties shall make their initial disclosures on or

before November 1, 2010. 2. Mid-discovery conference reports shall be filed on or

before February 14, 2011. 3. A mid-discovery status conference shall be held on The parties are

February 18, 2011, at 8:15 a.m. in Courtroom 3. 15

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authorized to appear telephonically. 4. The parties are ordered to complete all non-expert

discovery on or before April 11, 2011. 5. The parties are directed to disclose all expert Any rebuttal or

witnesses, in writing, on or before May 9, 2011.

supplemental expert disclosures will be made on or before June 6, 2011. The parties will comply with the provisions of Federal

Rule of Civil Procedure 26(a)(2) regarding their expert designations. Local Rule 16-240(a) notwithstanding, the written

designation of experts shall be made pursuant to F. R. Civ. P. Rule 26(a)(2), (A) and (B) and shall include all information required thereunder. Failure to designate experts in compliance

with this order may result in the Court excluding the testimony or other evidence offered through such experts that are not disclosed pursuant to this order. 6. The parties are ordered to complete all discovery,

including experts, on or before July 1, 2011. 7. The provisions of F. R. Civ. P. 26(b)(4) shall

apply to all discovery relating to experts and their opinions. Experts may be fully prepared to be examined on all subjects and opinions included in the designation. result in the imposition of sanctions. X. Pre-Trial Motion Schedule. 1. All Non-Dispositive Pre-Trial Motions, including any Failure to comply will

discovery motions, will be filed on or before July 20, 2011, and heard on August 26, 2011, at 9:00 a.m. before Magistrate Judge Gary S. Austin in Courtroom 10. 2. In scheduling such motions, the Magistrate 16

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Judge may grant applications for an order shortening time pursuant to Local Rule 142(d). However, if counsel does not

obtain an order shortening time, the notice of motion must comply with Local Rule 251. 3. All Dispositive Pre-Trial Motions are to be

filed no later than August 1, 2011, and will be heard on September 26, 2011, at 10:00 a.m. before the Honorable Oliver W. Wanger, United States District Judge, in Courtroom 3, 7th Floor. In scheduling such motions, counsel shall comply with Local Rule 230. XI. Pre-Trial Conference Date. 1. October 31, 2011, at 11:00 a.m. in Courtroom 3, 7th

Floor, before the Honorable Oliver W. Wanger, United States District Judge. 2. The parties are ordered to file a Joint Pre-

Trial Statement pursuant to Local Rule 281(a)(2). 3. Counsel's attention is directed to Rules 281

and 282 of the Local Rules of Practice for the Eastern District of California, as to the obligations of counsel in preparing for the pre-trial conference. The Court will insist upon strict

compliance with those rules. XII. Motions - Hard Copy. 1. The parties shall submit one (1) courtesy paper copy to Exhibits shall be marked with

the Court of any motions filed.

protruding numbered or lettered tabs so that the Court can easily identify such exhibits. XIII. 1. Trial Date. December 13, 2011, at the hour of 9:00 a.m. in 17

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Courtroom 3, 7th Floor, before the Honorable Oliver W. Wanger, United States District Judge. 2. The parties have demanded jury, but anticipate trying

the case without a jury. 3. Counsels' Estimate Of Trial Time: a. 4. Five days.

Counsels' attention is directed to Local Rules

of Practice for the Eastern District of California, Rule 285. XIV. Settlement Conference. 1. A Settlement Conference is scheduled for July 5, 2011,

at 10:00 a.m. in Courtroom 10 before the Honorable Gary S. Austin, United States Magistrate Judge. 2. Unless otherwise permitted in advance by the

Court, the attorneys who will try the case shall appear at the Settlement Conference with the parties and the person or persons having full authority to negotiate and settle the case on any terms at the conference. 3. Permission for a party [not attorney] to attend

by telephone may be granted upon request, by letter, with a copy to the other parties, if the party [not attorney] lives and works outside the Eastern District of California, and attendance in person would constitute a hardship. If telephone attendance is

allowed, the party must be immediately available throughout the conference until excused regardless of time zone differences. Any other special arrangements desired in cases where settlement authority rests with a governing body, shall also be proposed in advance by letter copied to all other parties. 4. Confidential Settlement Conference Statement. 18

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At least five (5) days prior to the Settlement Conference the parties shall submit, directly to the Magistrate Judge's chambers, a confidential settlement conference statement. The

statement should not be filed with the Clerk of the Court nor served on any other party. Each statement shall be clearly

marked "confidential" with the date and time of the Settlement Conference indicated prominently thereon. Counsel are urged to

request the return of their statements if settlement is not achieved and if such a request is not made the Court will dispose of the statement. 5. The Confidential Settlement Conference

Statement shall include the following: a. case. b. A brief statement of the claims and A brief statement of the facts of the

defenses, i.e., statutory or other grounds upon which the claims are founded; a forthright evaluation of the parties' likelihood of prevailing on the claims and defenses; and a description of the major issues in dispute. c. d. A summary of the proceedings to date. An estimate of the cost and time to be

expended for further discovery, pre-trial and trial. e. f. The relief sought. The parties' position on settlement,

including present demands and offers and a history of past settlement discussions, offers and demands. /// /// 19

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XV.

Request For Bifurcation, Appointment Of Special Master,

Or Other Techniques To Shorten Trial. 1. necessary. 2. The parties reserve the right to determine whether The parties do not believe bifurcation or phasing is

presentation of Plaintiff's witnesses at the same trial would advance the interest of justice and the parties. XVI. Related Matters Pending. 1. Plaintiff/Counterdefendant indicated to Defendants/

Counterclaimants that it intends to seek consolidation of this case with the following related case: Pac-West Telecomm, Inc. v. MCI Communications Services, Inc. d/b/a Verizon Business Services, 1:10-cv-1051 OWW GSA (E.D. Cal.). Plaintiff/

Counterdefendant submits that both actions involve similar questions of fact and the same questions of law, and their consolidation is likely to achieve a substantial savings of judicial effort. 2. Defendants/Counterclaimants intend to oppose

consolidation of these cases, each of which was filed separately by Plaintiff/Counterdefendant. Defendants/Counterclaimants do

not object to coordinating discovery with the related case, and have no objection to these cases being heard by the same District Judge and Magistrate Judge. XVII. 1. Compliance With Federal Procedure. The Court requires compliance with the Federal

Rules of Civil Procedure and the Local Rules of Practice for the Eastern District of California. To aid the court in the

efficient administration of this case, all counsel are directed 20

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to familiarize themselves with the Federal Rules of Civil Procedure and the Local Rules of Practice of the Eastern District of California, and keep abreast of any amendments thereto. XVIII. 1. Effect Of This Order. The foregoing order represents the best

estimate of the court and counsel as to the agenda most suitable to bring this case to resolution. The trial date reserved is If the parties determine at

specifically reserved for this case.

any time that the schedule outlined in this order cannot be met, counsel are ordered to notify the court immediately of that fact so that adjustments may be made, either by stipulation or by subsequent scheduling conference. 2. Stipulations extending the deadlines contained

herein will not be considered unless they are accompanied by affidavits or declarations, and where appropriate attached exhibits, which establish good cause for granting the relief requested. 3. Failure to comply with this order may result in

the imposition of sanctions.

IT IS SO ORDERED. Dated: October 7, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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