United States of America v. Sweeney et al

Filing 20

STATUS (PRETRIAL SCHEDULING) ORDER signed by District Judge Kimberly J. Mueller on 6/29/17, ORDERING that any joinder of parties or amendments to the pleadings shall be filed by 12/1/2017. Initial disclosures as required by Federal Rule of Civil Proc edure 26(a) shall have been completed by 6/8/2017. All Discovery shall be completed by 8/15/2018. Designation of Expert Witnesses due by 6/8/2018 and rebuttal disclosures due by 7/27/2018. All expert discovery shall be completed by 9/10/2018. All dispositive motions, except motions for continuances, temporary restrainingorders or other emergency applications, shall be heard no later than 11/16/2018. A mid-litigation Status Conference is SET for 10/25/2018 at 2:30 p.m. in Courtroom No. 3, 15t h Floor. The Final Pretrial Conference is set for 4/5/2019 at 10:00 a.m., with a joint pretrial conference statement due by 3/15/2019. The Bench Trial is SET for 5/20/2019 at 09:00 AM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller, with trial briefs due by 5/6/2019. A Settlement Conference is SET for 10/17/2017 at 09:00 AM in Courtroom 25 (KJN) before Magistrate Judge Kendall J. Newman.(Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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Plaintiff,

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No. 2:17-cv-0112 KJM KJN

v.

STATUS (PRETRIAL SCHEDULING)

JOHN DONNELLY SWEENEY, et al.,

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ORDER

Defendants.

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An initial scheduling conference was held in this case on June 8, 2017. Gregory

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Broderick and Rochelle Russell appeared for plaintiff; Lawrence Bazel appeared for defendants.
Having reviewed the parties’ Joint Status Report filed on June 1, 2017, and

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discussed a schedule for the case with counsel at the hearing, the court makes the following

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orders:

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I.

SERVICE OF PROCESS
All named defendants have been served and no further service is permitted without

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leave of court, good cause having been shown.

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II.

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ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS
Any joinder of parties or amendments to the pleadings shall be filed by December

1, 2017. No additional joinder or amendments to pleadings will be permitted without leave of
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court, good cause having been shown. See Fed. R. Civ. P. 16(b); Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604 (9th Cir. 1992).

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III.

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JURISDICTION/VENUE
Jurisdiction is predicated upon 28 U.S.C. §§ 1331 & 1345 and 33 U.S.C.

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§ 1319(b). Jurisdiction and venue are not disputed.

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IV.

DISCOVERY

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Initial disclosures as required by Federal Rule of Civil Procedure 26(a) shall have

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been completed by June 8, 2017. All discovery shall be completed by August 15, 2018. In this

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context, “completed” means that all discovery shall have been conducted so that all depositions

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have been taken and any disputes relative to discovery shall have been resolved by appropriate

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order if necessary and, where discovery has been ordered, the order has been obeyed. All

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motions to compel discovery must be noticed on the magistrate judge’s calendar in accordance

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with the local rules of this court. While the assigned magistrate judge reviews proposed

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discovery phase protective orders, requests to seal or redact are decided by Judge Mueller as

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discussed in more detail below. In addition, while the assigned magistrate judge handles

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discovery motions, the magistrate judge cannot change the schedule set in this order, except that

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the magistrate judge may modify a discovery cutoff to the extent such modification does not have

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the effect of requiring a change to the balance of the schedule.

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The parties will exhaust efforts to reach a stipulation regarding any increase in

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numbers of interrogatories and depositions, in excess of the caps provided by the Federal Rules of

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Civil Procedure. If they are unable to reach agreement, they shall submit their dispute to the

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assigned magistrate judge.

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The court separately has approved the parties’ stipulated agreements regarding

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electronically stored information (ESI) and discovery procedures, and inadvertent disclosure of

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privileged information (Fed. R. Civ. Evid. 502). These orders are to be treated as companion

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orders to this scheduling order, with the same force and effect.

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The parties will, within fourteen (14) days of the scheduling conference, file with
the court a stipulation and proposed order, or separate proposed orders if no stipulation can be
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reached, providing: (a) a discovery phase protective order to facilitate discovery of material a

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party claims as confidential, in particular financial information; and (b) an order governing

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preparation of privilege logs as required by Fed. R. Civ. P. 26(b)(5) addressing the presence of

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privileged or work product material embedded in e-mail communications. To the extent the

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parties are unable to reach agreement regarding the effect of a Common Interest Confidentiality

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Agreement between the United States, the San Francisco Regional Water Quality Board and the

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San Francisco Bay Conservation and Development Commission, the parties shall submit their

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dispute to the assigned magistrate judge.

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V.

DISCLOSURE OF EXPERT WITNESSES

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The parties shall provide “opening expert reports,” i.e., to make disclosures and

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provide information under Federal Rule of Civil Procedure 26(a)(2) to the extent that they may

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use any witness at trial to present evidence under Federal Rule of Evidence 702, 703, or 705, by

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June 8, 2018. This deadline applies to the extent that the party bears the burden of proof on the

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subject matter at hand. Further, with respect to “retained experts” (i.e., an individual “retained or

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specially employed to provide expert testimony in the case or one whose duties regularly involve

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giving expert testimony,” Fed. R. Civ. P. 26(a)(2)(B)), opening expert reports must comply with

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Fed. R. Civ. P. 26(a)(2)(B). With respect to “percipient experts” (persons who, because of their

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expertise, have rendered expert opinions in the normal course of their work duties or observations

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pertinent to the issues in the case), opening expert reports may take the form of summaries and

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otherwise comply with Fed. R. Civ. P. 26(a)(2)(C).

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The parties shall provide “responsive expert reports,” i.e., the deadline for parties

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to make disclosures and provide information under Rule 26(a)(2) to the extent that they intend to

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use such information solely to contradict or rebut evidence on the same subject matter identified

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by the opposing side under Rule 26(a)(2)(B) or (C), by July 27, 2018. With respect to retained

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experts, responsive expert reports must comply with Fed. R. Civ. P. 26(a)(2)(B). With respect to

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percipient experts, responsive expert reports may take the form of summaries and must comply

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with Fed. R. Civ. P. 26(a)(2)(C). No additional expert reports, including any purported

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supplemental expert reports, may be drafted or provided absent prior leave of court.
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A party shall identify whether a disclosed expert is percipient, retained, or both. It

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will be assumed that a party designating a retained expert has acquired the express permission of

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the witness to be so listed. Parties designating percipient experts must state in the designation

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who is responsible for arranging the deposition of such persons.

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All experts designated are to be fully prepared at the time of designation to render

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an informed opinion, and give the bases for their opinion, so that they will be able to give full and

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complete testimony at any deposition taken by the opposing party. Experts will not be permitted

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to testify at trial as to any information gathered or evaluated, or opinion formed, after deposition

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taken subsequent to designation. Depositions of any expert witnesses disclosed in accordance

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with Rule 26(a)(2) will not count toward the limitations of 10 depositions set forth in the fact

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discovery section above. No interrogatories may be directed to a retained expert.

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All expert discovery shall be completed by September 10, 2018.

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Each side will bear the costs of its own retained experts in responding to

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discovery, and no party seeking discovery will be required to pay the other side’s retained expert

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any fee for the time spent in responding to discovery.

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VI.

MOTION HEARING SCHEDULE

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All dispositive motions, except motions for continuances, temporary restraining

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orders or other emergency applications, shall be heard no later than November 16, 2018.1 The

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parties may obtain available hearing dates by checking Judge Mueller’s page on the court’s

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website.

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All purely legal issues are to be resolved by timely pretrial motions. Local Rule
230 governs the calendaring and procedures of civil motions; the following provisions also apply:

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(a)

The opposition and reply must be filed by 4:00 p.m. on the day due; and

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(b)

When the last day for filing an opposition brief falls on a legal holiday, the

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opposition brief shall be filed on the last court day immediately preceding the legal holiday.

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Failure to comply with Local Rule 230(c), as modified by this order, may be deemed consent to

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Note that this date may not correspond to a law and motion calendar date.
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the motion and the court may dispose of the motion summarily. Brydges v. Lewis, 18 F.3d 651,

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652-53 (9th Cir. 1994).

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The court values the importance of training young attorneys. The parties are

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encouraged to consider assigning oral argument to a young attorney. If a written request for oral

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argument is filed before a hearing, stating an attorney of four or fewer years out of law school

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will argue the oral argument, then the court will ordinarily hold the hearing, although the court’s

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schedule and calendar may require the hearing to be reset. Otherwise, the court may find it

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appropriate in some actions to submit a motion without oral argument.

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The court places a page limit of twenty (20) pages on all moving papers, twenty

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(20) pages on oppositions, and ten (10) pages for replies. All requests for page limit increases

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must be made in writing at least fourteen (14) days prior to the filing of the motion.

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Prior to filing a motion in a case in which the parties are represented by counsel,

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counsel shall engage in a pre-filing meet and confer to discuss thoroughly the substance of the

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contemplated motion and any potential resolution. Plaintiff’s counsel should carefully evaluate

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the defendant’s contentions as to deficiencies in the complaint and in many instances the party

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considering a motion should agree to any amendment that would cure a curable defect. Counsel

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should discuss the issues sufficiently so that if a motion of any kind is filed, including for

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summary judgment, the briefing is directed only to those substantive issues requiring resolution

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by the court. Counsel should resolve minor procedural or other non-substantive matters during

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the meet and confer. A notice of motion shall contain a certification by counsel filing the

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motion that meet and confer efforts have been exhausted, with a brief summary of meet and

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confer efforts.

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The parties are cautioned that failure to raise a dispositive legal issue that could

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have been tendered to the court by proper pretrial motion prior to the dispositive motion cut-off

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date may constitute waiver of such issue.

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VII.

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SEALING
No document will be sealed, nor shall a redacted document be filed, without the

prior approval of the court. If a document for which sealing or redaction is sought relates to the
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record on a motion to be decided by Judge Mueller, the request to seal or redact should be

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directed to her and not the assigned Magistrate Judge. All requests to seal or redact shall be

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governed by Local Rules 141 (sealing) and 140 (redaction); protective orders covering the

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discovery phase of litigation shall not govern the filing of sealed or redacted documents on the

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public docket. The court will only consider requests to seal or redact filed by the proponent of

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sealing or redaction. If a party plans to make a filing that includes material an opposing party has

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identified as confidential and potentially subject to sealing, the filing party shall provide the

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opposing party with sufficient notice in advance of filing to allow for the seeking of an order of

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sealing or redaction from the court.

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VIII.

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MID LITIGTION STATUS CONFERENCE
A mid-litigation status conference is set for October 25, 2018 at 2:30 p.m. in

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Courtroom No. 3, 15th Floor.

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IX.

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FINAL PRETRIAL CONFERENCE
The Final Pretrial Conference is set for April 5, 2019, at 10:00 a.m. At least one

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of the attorneys who will conduct the trial for each of the parties shall attend the Final Pretrial

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Conference. If by reason of illness or other unavoidable circumstance a trial attorney is unable to

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attend, the attorney who attends in place of the trial attorney shall have equal familiarity with the

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case and equal authorization to make commitments on behalf of the client.

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Counsel for all parties are to be fully prepared for trial at the time of the Final

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Pretrial Conference, with no matters remaining to be accomplished except production of

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witnesses for oral testimony. The parties shall confer and file a joint pretrial conference

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statement by March 15, 2019. The provisions of Local Rule 281 shall apply with respect to the

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matters to be included in the joint pretrial statement. In addition to those subjects listed in Local

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Rule 281(b), the parties are to provide the court with the following:

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- A plain, concise statement that identifies every non-discovery motion previously
tendered to the court and its resolution.
- A concise, joint list of undisputed core facts that are relevant to each claim.
Disputed core facts should then be identified in the same manner. The parties are reminded not to
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identify every fact in dispute but only those disputed facts that are essential to the formulation of

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each claim. Each disputed fact and undisputed fact should be separately numbered or lettered.

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Where the parties are unable to agree on the core disputed facts, they should nevertheless list core

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disputed facts in the above manner.

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- Concise lists of disputed evidentiary issues that will be the subject of a party’s

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motion in limine, and whether the parties believe resolution of any of these motions will be

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necessary before the first day of trial.

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- Each party’s points of law, which concisely describe the legal basis or theory
underlying their claims and defenses. Points of law should reflect issues derived from the core

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undisputed and disputed facts. Parties shall not include argument with any point of law; the

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parties may include concise arguments in their trial briefs.

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Discovery documents to be listed in the pretrial statement shall not include
documents to be used only for impeachment and in rebuttal.
The parties are reminded that pursuant to Local Rule 281 they are required to

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attach to the Final Pretrial Conference Statement an exhibit listing witnesses and exhibits they

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propose to offer at trial. After the name of each witness, each party shall provide a brief

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statement of the nature of the testimony to be proffered. The parties may file a joint list or each

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party may file separate lists. These list(s) shall not be contained in the body of the Final Pretrial

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Conference Statement itself, but shall be attached as separate documents to be used as addenda to

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the Final Pretrial Order.

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Plaintiff’s exhibits shall be listed numerically. Defendant’s exhibits shall be listed

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alphabetically. The parties shall use the standard exhibit stickers provided by the court: pink for

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plaintiff and blue for defendant. In the event that the alphabet is exhausted, the exhibits shall be

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marked “AA-ZZ”. However, if the amount of defendant exhibits exceeds “ZZ” exhibits shall be

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then listed as AAA, BBB, CCC etc. All multi-page exhibits shall be stapled or otherwise fastened

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together and each page within the exhibit shall be numbered. The list of exhibits shall not include

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excerpts of depositions to be used only for impeachment. In the event that plaintiff(s) and

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defendant(s) offer the same exhibit during trial, that exhibit shall be referred to by the designation
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the exhibit is first identified. The court cautions the parties to pay attention to this detail so that

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all concerned will not be confused by one exhibit being identified with both a number and a letter.

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The parties are encouraged to consult concerning exhibits and, to the extent possible, provide

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joint exhibits, which shall be designated as JX and listed numerically, e.g., JX-1, JX-2.

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The Final Pretrial Order will contain a stringent standard for the offering at trial of

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witnesses and exhibits not listed in the Final Pretrial Order, and the parties are cautioned that the

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standard will be strictly applied. On the other hand, the listing of exhibits or witnesses that a

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party does not intend to offer will be viewed as an abuse of the court’s processes.

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Counsel shall produce all trial exhibits to Casey Schultz, the Courtroom Deputy,
no later than 3:00 p.m. on the Friday before trial.

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Failure to comply with Local Rule 281, as modified by this order, may be grounds
for sanctions.

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The parties also are reminded that pursuant to Rule 16 of the Federal Rules of

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Civil Procedure it will be their duty at the Final Pretrial Conference to aid the court in: (a) the

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formulation and simplification of issues and the elimination of frivolous claims or defenses; (b)

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the settling of facts that should properly be admitted; and (c) the avoidance of unnecessary proof

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and cumulative evidence. Counsel must cooperatively prepare the joint Final Pretrial Conference

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Statement and participate in good faith at the Final Pretrial Conference with these aims in mind.2

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A failure to do so may result in the imposition of sanctions which may include monetary

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sanctions, orders precluding proof, elimination of claims or defenses, or such other sanctions as

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the court deems appropriate.

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Concurrently with the filing of the Joint Final Pretrial Conference Statement,

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counsel shall submit to chambers the word processable version of the Statement, in its entirety

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(including the witness and exhibit lists) to: [e-mail].

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“If the pretrial conference discloses that no material facts are in dispute and that the undisputed
facts entitle one of the parties to judgment as a matter of law,” the court may summarily dispose
of the case or claims. Portsmouth Square v. Shareholders Protective Comm., 770 F.2d 866, 86869 (9th Cir. 1985).
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X.

MOTIONS IN LIMINE

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All motions in limine must be filed in conjunction with the joint pretrial statement.

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In most cases, motions in limine are addressed and resolved on the morning of the first day of

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trial. As noted above, the parties may alert the court at the final pretrial conference and in their

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final pretrial statement that a particular motion or motions should be resolved earlier. At the final

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pretrial conference, the court will then set a briefing and hearing schedule on these motions in

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limine as necessary.

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The parties are reminded that a motion in limine is a pretrial procedural device
designed to address the admissibility of evidence. The court looks with disfavor upon

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dispositional motions presented at the Final Pretrial Conference or at trial in the guise of motions

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in limine.

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XI.

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TRIAL SETTING
The bench trial is set for May 20, 2019 at 9:00 a.m. The parties estimate a trial

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length of approximately eight (8) to ten (10) days. Trial briefs are due by May 6, 2019.

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XII.

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SETTLEMENT CONFERENCE
The parties have expressed interest in appearing for settlement conference and

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waive a conflict to the assigned magistrate judge acting as settlement judge. A settlement

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conference is confirmed before Judge Newman for the date closest to the parties’ requested date,

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October 17, 2017 at 9:00 a.m. in Courtroom No. 25, 8th Floor.

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The parties are directed to exchange non-confidential settlement conference statements

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seven (7) days prior to this settlement conference. These statements shall simultaneously be

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delivered to the Court using the following email address: [e-mail]. If a party

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desires to share additional confidential information with the court, they may do so as provided by

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the provisions of Local Rule 270(d) and (e). Waivers will be required if not previously filed.

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XIII.

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MODIFICATION OF STATUS (PRETRIAL SCHEDULING) ORDER
The parties are reminded that pursuant to Rule 16(b) of the Federal Rules of Civil

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Procedure, the Status (Pretrial Scheduling) Order shall not be modified except by leave of court

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upon a showing of good cause. Agreement by the parties pursuant to stipulation alone does not
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constitute good cause. Except in extraordinary circumstances, unavailability of witnesses or

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counsel does not constitute good cause.

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The assigned magistrate judge is authorized to modify only the discovery dates

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shown above to the extent any such modification does not impact the balance of the schedule of

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the case.

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XIV. OBJECTIONS TO STATUS (PRETRIAL SCHEDULING) ORDER

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This Status Order will become final without further order of the court unless
objections are filed within fourteen (14) calendar days of service of this Order.
IT IS SO ORDERED.
DATED: June 29, 2017.

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UNITED STATES DISTRICT JUDGE

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