Best Buy Co., Inc. et al v. AU Optronics Corp. et al

Filing 451

FINAL PRETRIAL SCHEDULING ORDER - PHASE I DAP TRIAL 8118 8119 8120 8121 8122 8123 8124 8125 8126 8127 8128 8129 8130 8131 8133 8134 8136 8137 8138 8139 8140 8214 (Illston, Susan) (Filed on 7/11/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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IN RE: TFT-LCD (FLAT PANEL) ANTITRUST

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LITIGATION

This Order Relates To:

No. C 10-4572 SI
No. C 12-4114 SI
No. C 10-5452 SI
No. C 10-4945 SI

Best Buy v. AU Optronics Corp., et al.,
Case No. 10-CV-4572;

FINAL PRETRIAL SCHEDULING
ORDER - PHASE 1 DAP TRIAL

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United States District Court
For the Northern District of California

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MDL No. 1827

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Best Buy v. Toshiba Corp., et al.,
Case No. 12-CV-4114;
Eastman Kodak Company v. Epson Imaging
Devices Corp., et al., Case No. 10-CV-5452;
Target Corp, et al., v. AU Optronics Corp., et al.,
Case No. 10-CV-4945.
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On July 9, 2013, the Court held a Pretrial Conference on this matter, which is scheduled for jury

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trial beginning July 22, 2013. All parties were represented by counsel. Based on that conference, the

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following matters have been resolved:

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1.

Parties: The three trial plaintiffs are the Best Buy plaintiffs; the Target plaintiffs

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(including Target; Sears, Roebuck; Kmart; RadioShack; OldComp/CompUSA; Newegg; and Good

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Guys); and Eastman Kodak Company. The four defendants are AU Optronics; HannStar Display; LG

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Display; and Toshiba. Unless otherwise specified, all plaintiffs constitute one side, and all defendants

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constitute another side.

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Number of jurors and challenges: There shall be a jury of 10 members. Each side

shall have up to five peremptory challenges.

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2.

Voir dire: The parties shall provide the Jury Administrator with 55 copies of the

approved jury questionnaire by 4 p.m. on Wednesday, July 17, 2013. The Jury Administrator will

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distribute the blank questionnaires to potential jurors on Thursday, July 18, 2013, and counsel will

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obtain and copy the completed questionnaires thereafter. The parties shall provide the Court with a set

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of the completed jury questionnaires by noon Friday, July 19, 2013. If the parties jointly agree to any

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dismissals/challenges for cause based on the questionnaire answers of any potential jurors, they should

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United States District Court
For the Northern District of California

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inform the Court and the Jury Administrator of the names of such jurors by 3 p.m. on Friday, July 19,

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2013. Voir dire will be conducted on Monday, July 22, 2013, beginning at 8:30 a.m. The Court

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anticipates that counsel will have reviewed and considered the completed questionnaires in advance of

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voir dire. Counsel for each party may have 5 minutes to provide a neutral, non-argumentative statement

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of the case, prior to commencement of oral voir dire by the Court. The Court will conduct general voir

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dire, and counsel for each side shall have up to 40 minutes total to question the panel.

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3.

Jury instructions: The parties shall submit jointly requested preliminary instructions,

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to be provided to the jury at the commencement of the case, no later than July 18, 2013. The parties’

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final submission of instructions to the Court shall be filed in hard copy and also submitted to the court

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in digital format suitable for reading by WordPerfect (*wpd file), on a date to be designated by the Court

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after trial commences. The Court will undertake to resolve the parties’ disputes concerning the pass-on

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instructions prior to July 22, 2013.

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4.

Trial exhibits: Counsel may set up the courtroom for trial during the week of July 15,

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Timing of trial: The trial has been scheduled for approximately 6 weeks, commencing

2013.

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July 22, 2013. Based on this schedule, each party shall have up to 25 minutes for opening statements;
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each side shall have 50 hours total for presentation of evidence, which includes direct and cross-

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examination and presentation of all exhibits; and each party shall have up to 45 minutes for closing

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argument. As noted at the pretrial conference, this time allocation is substantial and cannot practicably

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be expanded. If any party engages in dilatory or unreasonable conduct which unnecessarily delays the

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proceedings, then the Court may revise the time allocations accordingly.

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6.

Trial schedule: Jury trials are generally conducted Monday through Thursday; jury

trials are generally not conducted on Fridays, although deliberating juries are free to deliberate on

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Fridays. The trial day runs from 8:30 a.m. until 3:30 p.m., with a 15 minute break at 10:00 a.m., a 30-45

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United States District Court
For the Northern District of California

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minute break at 12:00 noon and a 15 minute break at 2:00 p.m., all times approximate. The Court will

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be unavailable on August 22, 2013, and August 26-27, 2013.

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Motions in limine: The parties filed approximately 42 motions in limine. All were

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discussed at the Pretrial Conference. Some have been mooted by stipulation; the balance are resolved

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as follows:

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Plaintiffs’ Motions:

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No. 1: To exclude evidence of unrelated litigation: GRANTED.

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Nos. 2: To exclude references to plaintiffs’ purported “market power”: DENIED as

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overbroad, without prejudice to specific objections to specific questions at time of trial.

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No. 3: To exclude evidence of IPP class settlement: The parties represented that they
will stipulate to resolution of this issue; DENIED as moot.

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No. 4: To exclude evidence that Toshiba’s products sold to plaintiffs did not contain
Toshiba panels: DENIED.

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No. 5: To exclude evidence that Best Buy engaged in communications with competitors:
DENIED.

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No. 6: To exclude references to Special Master Quinn’s order striking portions of Prof.

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SDL’s rebuttal opinions: GRANTED, as to any references to this (or any other) order of the Special

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Master. Plaintiffs represent that they do not intend to ask Prof. SDL any questions concerning the
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stricken rebuttal material. If defendants wish to cross-examine or otherwise inquire about the substance

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of the rebuttal report, they may seek leave to Court to do so.

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No. 7: To admit corporate disclosure statements filed in non-related cases pursuant to
Rule 807: DENIED.

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No. 8: To exclude evidence concerning Eric Koran and Dell’s alleged knowledge of

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defendants’ conspiracy: GRANTED, absent offer of proof demonstrating that Koran’s or Dell’s

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knowledge is relevant to plaintiffs’ state of mind.

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No. 9: To exclude evidence related to Best Buy’s alleged knowledge of the conspiracy

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from use against Kodak and Target plaintiffs: DENIED. The Court will give an appropriate limiting

United States District Court
For the Northern District of California

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instruction upon request.
No. 10. To exclude reference to and evidence of the ability of plaintiffs to seek treble
damages and attorneys’ fees and costs: GRANTED.

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No. 11. To exclude references or arguments regarding other actions and settlements in

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this MDL: The parties represented that they will stipulate to resolution of this issue; DENIED as moot.

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No. 12. To exclude references to the current financial condition of any of the named

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plaintiffs (brought by all plaintiffs except Kodak): GRANTED, absent offer of proof demonstrating

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relevance of evidence. Kodak agrees not to argue that its bankruptcy is related to defendants’ conduct

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in this action, but may seek leave to explain that various of its business units are not functioning and

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therefore could not provide witnesses at trial.

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No. 13. Motion to exclude references to statements made by DO officials regarding
multiple conspiracies: GRANTED, absent further Court order based on offer of proof.
No. 14. To exclude any reference to the DO’s Rule 12-4 disclosures in the related
criminal actions: GRANTED.

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No. 15. To preclude argument that plaintiffs’ claims are barred because they arise from

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foreign commerce: GRANTED as to argument. If and to the extent that factual predicates must be

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established at trial re FTAIA issues, those will be submitted to the jury for determination.

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No. 16. To preclude evidence regarding “pass on” in connection with Best Buy’s and

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Target plaintiffs’ claims: DENIED; pass on evidence is relevant to state law indirect purchaser claims.
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No. 17: To exclude evidence regarding plaintiffs’ alleged failure to mitigate damages:

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GRANTED, absent further order on offer of proof regarding relevance. The Court has already ruled that

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failure to mitigate is not a defense to damages claims.

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No. 18: To exclude live witnesses from testifying in defendants’ case in chief who were

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not made available for live testimony in plaintiffs’ case in chief: The parties represented that they will

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stipulate to resolution of this issue; DENIED as moot.

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No. 19: To exclude percipient witnesses, except for party representatives, from courtroom

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unless testifying: The parties represented that they will stipulate to resolution of this issue; DENIED

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as moot.

United States District Court
For the Northern District of California

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No. 20: To preclude expert witness testimony on incomplete pass-on of overcharges

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through affiliate entities: GRANTED as to damage claims under Sherman Act ; DENIED as to damage

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claims based on indirect purchases under state laws.

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No. 21: To admit evidence that certain witnesses may have invoked the Fifth Amendment

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privilege against self incrimination: The Court will not allow reference to the Fifth Amendment

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invocation of witnesses who thereafter withdrew the invocation and testified, or of Ms. Caperton.

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Reference to the invocation, and application of any adverse inferences therefrom, as to any other

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witnesses will be considered on a case by case basis. DENIED as framed, subject to offers of proof at

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trial. See also defendants’ motions in limine Nos. 2, 3 and 19.

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No. 22: Motion for pretrial ruling on the admissibility of documents: DENIED as
overbroad and premature.

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No. 23: Motion for pretrial ruling on summary witness testimony reflecting conspiracy

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meetings and communications: DENIED as premature. Summary witnesses may be allowed if

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documents summarized are in evidence and testimony relates only to compiling voluminous documents

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into a neutral chart.

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Defendants’ Motions:
No. 1: To exclude all evidence of or comment about guilty pleas: DENIED, without
prejudice to specific objections to specific questions at trial.
No.2: To adopt orders on motions in limine regarding Fifth Amendment invocations:
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See ruling on plaintiffs’ motion No. 21.

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No. 3: Motion for pre-instructions to jury: GRANTED, to this extent: If the parties

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present the Court with agreed-upon preliminary instructions on the substantive claims, the Court will

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preinstruct.

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No. 4: To redact all documents stamped as “grand jury material” or with other

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designations that refer to criminal proceedings: GRANTED as to “grand jury material”; DENIED as to

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balance, without prejudice to specific objections to specific documents

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No. 5: To exclude evidence or testimony pertaining to unrelated antitrust investigations:
DENIED as overbroad, without prejudice to specific objections to specific questions at trial.

United States District Court
For the Northern District of California

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No. 6: To exclude evidence pertaining to unrelated antitrust investigations: DENIED as
overbroad, without prejudice to specific objections to specific questions at trial.

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No. 7: To exclude evidence and arguments related to “gross gains” finding in AUO

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criminal trial: The parties represented that they will stipulate to resolution of this issue; DENIED as

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moot.

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No. 8: To exclude discovery responses by non-parties: DENIED as overbroad, without
prejudice to specific objections to specific questions at trial.
No. 9: To exclude evidence relating to stereotyping of foreign companies: DENIED, for
same reasons as and to same extent as in order on Daubert motions.
No. 10: To exclude evidence related to investigations and indictments: DENIED as
overbroad, without prejudice to specific objections to specific questions at trial.
No. 11: To exclude evidence pertaining to employment issues related to employees who
have pled guilty: DENIED.

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No. 12: To exclude presentations of “full consideration damages”: WITHDRAWN.

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No. 13: To preclude evidence of invocations of the Fifth Amendment: See ruling on

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plaintiffs’ motion No. 21.

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No. 14: See separate order concerning choice of law.

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No. 15: To exclude evidence of the vacated verdict from the DPP trial: The parties

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represented that they will stipulate to resolution of this issue; DENIED as moot.
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No. 16: To admit DisplaySearch reports: DENIED as overbroad; admissibility will be
considered on a case by case basis.

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No. 17: To allow full defense examination fo common witnesses during plaintiffs’ case-

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in-chief and limit use of deposition testimony: The parties represented that they will stipulate to

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resolution of this issue; DENIED as moot.

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No. 18: To request limiting instruction regarding jury verdicts in AUO criminal trials:

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DENIED as framed. Appropriate portions of indictment may be used to identify scope of guilty

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verdicts.

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No. 19: To exclude David Joe’s testimony: See ruling on plaintiffs’ motion No. 21.

United States District Court
For the Northern District of California

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Miscellaneous: The parties are encouraged to enter reasonable stipulations concerning

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authenticity, business record status and admissibility of documents, and concerning corporate

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relationships among subsidiaries and affiliates. The parties are ordered to provide each other 48 hours’

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advanced notice of the witnesses to be called. If parties intend to call adverse witnesses who live

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abroad,

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they should provide adequate notice to the other side to facilitate attendance.

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Dated: July 11, 2013

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_______________________________
SUSAN ILLSTON
United States District Judge

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United States District Court
For the Northern District of California

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