EIT Holdings LLC v. Yelp!, Inc. et al

Filing 68

SUPPLEMENTAL ORDER TO ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE re 67 Clerks Notice. Signed by Judge William Alsup on 11/20/08. (dt, COURT STAFF) (Filed on 4/19/2011)

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Last revised November 20, 2008.

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California

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SUPPLEMENTAL ORDER TO
ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE
IN CIVIL CASES BEFORE JUDGE WILLIAM ALSUP

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INTRODUCTION

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The purpose of this supplemental order is to guide the parties on recurring practical

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questions that arise prior to trial and to impose certain requirements for the conduct of the

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case. Counsel must please read this order and follow it.
SERVICE OF THIS ORDER

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1.

For cases originating in this Court, plaintiff(s) must serve this order and the order

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setting the initial case management conference (along with any other required pleadings) on each

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defendant. For cases removed from state court, the removing defendant(s) must serve this order

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and the order setting the initial case management conference (along with any other required

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pleadings) immediately on each and every party that has previously appeared or that appears

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within thirty days after removal. Thereafter, any existing party to the action that brings a new

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party into the action must immediately serve a copy of this order and the order setting the initial

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case management conference (along with any other required pleadings) on the new party.

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CASE MANAGEMENT CONFERENCE
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The parties will please address the standardized items in the court-wide format

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for the joint case management statement. This is available at the Standing Order For all Judges

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of the Northern District of California — Contents of Joint Case Management Statements.

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Please file (electronically or manually depending on your case) at least SEVEN CALENDAR DAYS

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prior to the case management conference.

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3.

Each party shall be represented at the case management conference by counsel

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prepared to address all such matters and with authority to enter stipulations and to make

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admissions.

United States District Court
For the Northern District of California

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4.

Pursuant to FRCP 26(d), no formal discovery shall be initiated by any party until

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after the meet-and-confer session required by FRCP 26(f), except by stipulation or prior court

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order. As soon as a party has notice of this order, however, the party shall take such affirmative

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steps as are necessary to preserve evidence related to the issues presented by the action,

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including, without limitation, interdiction of any document-destruction programs and any

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ongoing erasures of e-mails, voice mails, and other electronically-recorded material.

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ELECTRONIC CASE FILING — LODGING HARD COPIES WITH CHAMBERS
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In all “E-Filing” cases, in addition to filing papers electronically, the parties are

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required to lodge for chambers one paper copy of each document that is filed electronically.

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These printed copies shall be marked “Chambers Copy — Do Not File” and shall be in an

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envelop clearly marked with the judge’s name and case number. It shall be delivered to the

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Clerk’s office no later than noon on the day following the day that the papers were filed

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electronically. Parties shall not file a paper copy of any document with the Clerk’s Office that

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has already been filed electronically. For the final pretrial conference, please follow

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Guidelines for Trial and Final Pretrial Conference In Civil Jury Cases Before the Honorable

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William Alsup.
SETTING MOTIONS FOR HEARING

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6.

Counsel need not request a motion hearing date and may notice non-discovery

motions for any Thursday (excepting holidays) at 8:00 a.m. The Court sometimes rules on the
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papers, issuing a written order and vacating the hearing. If a written request for oral argument is

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filed before a ruling, stating that a lawyer of four or fewer years out of law school will conduct

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the oral argument or at least the lion’s share, then the Court will hear oral argument, believing

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that young lawyers need more opportunities for appearances than they usually receive.

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FORM OF SUBMISSIONS
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On summary judgment motions, joint statements of undisputed facts are not

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required but are helpful if completely agreed upon. Please do not file separate statements of

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“undisputed facts.”

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8.

Reply declarations are disfavored. Opening declarations should set forth all facts

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For the Northern District of California

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on points foreseeably relevant to the relief sought. Reply papers should not raise new points that

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could have been addressed in the opening.

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9.

The title of the submission must be sufficient to alert the Court to the relief

sought; for example, please do not bury a request for continuance in the body of a memorandum.
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All submissions filed with the Court shall include on the cover sheet the date and

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time of the hearing or conference. Counsel should include their facsimile transmission numbers

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along with their telephone numbers on their papers.

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DISCOVERY
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The following paragraphs on discovery provide counsel and the parties with

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views and guidelines of Judge Alsup so that they can plan accordingly. For good cause, the

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parties are invited to propose any modifications in their joint case management conference

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statement. Unless and until modified, however, the following provisions shall supplement the

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requirements of the Federal Rules of Civil Procedure and the local rules.

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12.

In responding to requests for documents and materials under FRCP 34, all parties

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shall affirmatively state in a written response the full extent to which they will produce materials

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and shall, promptly after the production, confirm in writing that they have produced all such

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materials so described that are locatable after a diligent search of all locations at which such

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materials might plausibly exist. It is not sufficient to state that “responsive” materials will be or

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have been produced. Such a response leaves open the distinct possibility that other responsive

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materials have not been produced.

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13.

In searching for responsive materials in connection with FRCP 34 requests or for

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materials required to be disclosed under FRCP 26(a)(1), parties must search computerized files,

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e-mails, voice mails, work files, desk files, calendars and diaries, and any other locations and

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sources if materials of the type to be produced might plausibly be expected to be found there.

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The Court has found that certain basic information normally learned by counsel anyway should

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be made available to the other side at the time of production, as if it were a response to a

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standing interrogatory, as follows. At the time of the production, the responding party should

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For the Northern District of California

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provide a written list to the requesting party setting forth in detail each specific source and

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location searched. The list must also identify, by name and position, all persons conducting the

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search and their areas of search responsibility. The producing party shall also provide a list

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describing the specific source for each produced item as well as for each item withheld on a

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ground of privilege, using the unique identifying numbers to specify documents or ranges.

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Materials produced in discovery should bear unique identifying control numbers on each page.

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14.

To the maximum extent feasible, all party files and records should be retained

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and produced in their original form and sequence including file folders, and the originals should

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remain available for inspection by any counsel on reasonable notice.

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15.

Except for good cause, no item shall be received as case-in-chief evidence if the

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proponent has failed to produce it in response to a reasonable and proper discovery request

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covering the item, regardless of whether any discovery motion was made. A burden or

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overbreadth or similar objection shall not be a valid reason for withholding requested materials

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actually known to counsel or a party representative responsible for the conduct of the litigation.

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16.

Privilege logs shall be promptly provided and must be sufficiently detailed and

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informative to justify the privilege. See FRCP 26(b)(5). No generalized claims of privilege or

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work-product protection shall be permitted. With respect to each communication for which a

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claim of privilege or work product is made, the asserting party must at the time of assertion

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identify:

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(a)

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communication;

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(b)

all persons making or receiving the privileged or protected

the steps taken to ensure the confidentiality of the communication,

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including affirmation that no unauthorized persons have received the

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communication;

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(c)

the date of the communication; and

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(d)

the subject matter of the communication.

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For the Northern District of California

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Failure to furnish this information at the time of the assertion will be deemed a waiver of the

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privilege or protection. The log should also indicate, as stated above, the location where the

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document was found.

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17.

Absent extraordinary circumstances, counsel shall consult in advance with

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opposing counsel and unrepresented proposed deponents to schedule depositions at

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mutually-convenient times and places. That some counsel may be unavailable shall not,

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however, be grounds for deferring or postponing a deposition if another attorney from the

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same firm or who represents a party with similar interests to that witness is able to attend.

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Ordinarily, if one side desires a prompt deposition, the other side is expected to agree to dates

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falling within thirty days of the request. On the other hand, rarely should one side expect the

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other side to agree to a deposition sooner than seven days of the request.

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18.

If any objection to a request for materials is overruled, and if the disputed request

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was due and pending at the time of a deposition, the withholding party or counsel must, at the

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request of any other party, re-produce all deponents under its control or represented by them for

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further deposition examination as to any new materials produced in response that are germane

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to that deponent and must bear the expense of doing so. A party objecting to producing

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requested materials may not use the existence of its own objections as a basis for postponing

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any deposition unless such party promptly meets and confers and then, if failing to reach an

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agreement, seeks to bring a prompt motion for a protective order.
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19.

Counsel and parties shall comply with FRCP 30(d)(1). Deposition objections

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must be as to privilege or form only. Speaking objections are prohibited. Under no

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circumstances should any counsel interject, “if you know,” or otherwise coach a deponent.

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When a privilege is claimed, the witness should nevertheless answer questions relevant to the

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existence, extent or waiver of the privilege, such as the date of a communication, who made the

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statement, to whom and in whose presence the statement was made, other persons to whom the

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contents of the statement have been disclosed, and the general subject matter of the statement.

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Private conferences between deponents and attorneys in the course of examination, including a

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line of related questions, are improper and prohibited except for the sole purpose of determining

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For the Northern District of California

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whether a privilege should be asserted.
20.

Deponents and their counsel must make a good-faith effort to prepare for

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depositions and to refresh witness memories on important matters in the suit about which the

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witness reasonably should be expected to have knowledge. Deponents who claim to lack

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recollection during their deposition but who later claim at trial to have had their memories

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refreshed in the interim, may be, among other things, impeached with their previous failures of

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recollection during their depositions or be subject to preclusion. In preparing deponents,

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defending counsel shall segregate and retain all materials used to refresh their memories and

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shall provide them to examining counsel at the outset of the deposition.

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21.

To the maximum extent feasible, deposition exhibits shall be numbered in a

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simple manner that will allow the same numbering at trial. In discovery, counsel shall agree on

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blocks of exhibit numbers to be used by the respective parties. Identical exhibits should not be

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re-marked, but various versions of the same document, such as copies with hand notes added,

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should be separately marked if used. See Local Rule 30-2(b)(3).

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22.

FRCP 26(a)(2)(B) requires disclosure of all opinions, bases, reasons and “other

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information considered” by an expert. Counsel shall preserve all drafts of expert reports

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(partial or complete) and notes and other evidence of communications with experts (or with

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any intermediaries between counsel and the experts) on the subject of this actual or potential

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testimony, and shall instruct their experts and any intermediaries to do likewise. All such
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materials shall be produced upon expert designation (unless all parties otherwise stipulate in

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writing). This requirement does not apply to intermediate drafts prepared solely by the

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testifying expert not provided to or discussed with anyone else. Counsel’s private notes of

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conversations will be treated as work product and need not be produced absent the showing

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required by FRCP 26(b)(3).

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23.

With respect to depositions under FRCP 30(b)(6), the fundamental purpose is to

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allow a party to notice a deposition by subject matter, thereby requiring the respondent to

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designate and to produce one or more organization witnesses knowledgeable on the designated

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topic, a useful procedure when the roles of percipient witnesses controlled by an adverse party

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For the Northern District of California

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are unknown. In some cases, however, counsel routinely appear to notice

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Rule 30(b)(6) depositions on numerous and wide-ranging topics, including even the basis for

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“contentions” made by adverse parties. To obviate disputes and to give guidance, these

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guidelines will be observed:

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(a)

Without a prior order increasing the limit, a party may seek

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Rule 30(b)(6) depositions from another party on up to a total of ten subject

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matters (for the entire case) described with “reasonable particularity.” In framing

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the subjects, it is normally improper to ask for Rule 30(b)(6) deponents to testify

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concerning the entire basis of a claim or defense. On the other hand, examples of

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proper subjects, which would require the respondent to find and to produce

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knowledgeable deponents, include “the time line of research and development

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leading to the invention in question” or “the efforts undertaken by defendant to

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locate documents responsive to plaintiff’s document request.” The notice should

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be directed at discovering percipient facts in the possession of the adverse party,

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not at forcing a supposed “fact witness” to appear and defend the entire thesis of a

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claim or defense. If a notice includes an overbroad topic, the overbroad topic

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shall be unenforceable and may not be later replaced with a proper topic.

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(b)

Each witness-designee deposed for one half-day or more in a

Rule 30(b)(6) deposition shall count as a single deposition for purposes of the
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deposition limit under FRCP 26 or under any case management order setting a

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limit on the number of depositions. A corporate designee may, immediately after

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being deposed on the stated subject, be deposed in his or her individual capacity.

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Both such sessions shall count together as a single deposition (although they

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should be separately transcribed). If two designees, to take another example, are

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interrogated, each for one half-day or more, then they count as two depositions.

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(c)

If an organization cannot reasonably locate a witness to testify

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based on personal knowledge, there is no requirement under Rule 30(b)(6) for the

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organization to “woodshed” or to “educate” an individual to testify on the subject.

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For the Northern District of California

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If the organization does not produce any such deponent, however, the

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organization may not present case-in-chief evidence at trial or on summary

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judgment on that topic from any witness it could have so designated.

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(d)

Rule 30(b)(6) testimony never constitutes an irrebuttable judicial

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admission. It will normally, however, be evidence admissible against the

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organization producing the witness. The jury may, upon request, be instructed on

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the significance of the testimony under Rule 30(b)(6).

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24.

If a dispute arises during a deposition and involves either a persistent obstruction

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of the deposition or a refusal to answer a material question on a ground other than privilege,

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counsel may attempt to arrange a telephone conference with the Court through the courtroom

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deputy, Dawn Toland, at 415-522-2020. Any such conference should be attended by the same

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court reporter recording the deposition.

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25.

All other requests for discovery relief must first be summarized in a letter no

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longer than three pages from the party seeking relief after having met and conferred. Up to

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twelve pages of attachments may be added. In the letter, counsel should identify themselves in

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the signature block as “counsel for ___________.” The letter should be electronically-filed in

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the official file along with the discovery-dispute requests and responses, as well as any timely

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letter cancelling the hearing if settlement is reached. (Please note that with all communications

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with the Court by e-filing, a hard copy must be lodged in the Court’s mail box in the Clerk’s
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Office on the sixteenth floor no later than noon of the following day.) The Court will then

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advise the parties whether a response, written motion or a telephone conference or court hearing

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will be required. After the telephone conference or hearing, counsel should submit their

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proposed order (agreed as to form) by e-filing it. This paragraph applies only to cases wherein

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discovery is being supervised by the district judge rather than by a magistrate judge or special

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master.

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DISCLOSURES
26.

Apart from discovery, Rule 26 requires certain automatic disclosures and requires

them to be made in a timely manner. Under Rule 37(c), untimely-disclosed materials may not be

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For the Northern District of California

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used at trial or on summary judgment unless the delay in disclosure is “harmless” or unless

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“substantial justification” for the delay is shown.

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COMMUNICATIONS WITH CHAMBERS
27.

Please do not send any letters to the Court (except for requests for discovery

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conferences, short cover letters for dismissals, orders agreed-upon as to form, or chambers

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copies of electronically-filed documents). When corresponding with the Court by letter, always

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identify whom you represent. Please do not fax or messenger anything to chambers without

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advance permission specific to the item. Please e-file all submissions to the Court and make sure

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a hard copy is lodged in the Court’s mail box in the Clerk’s Office on the sixteenth floor no later

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than noon of the following day.

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You may contact the courtroom deputy, Dawn Toland (on the sixteenth floor in

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the Clerk’s Office), at 415-522-2020 with appropriate inquiries. Except for the letters described

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above, please do not attempt to make contact by telephone or any other ex parte means with

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chambers staff.
CROSS REFERENCE TO OTHER STANDING ORDERS AND GUIDELINES

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29.

The Court has separate standing guidelines for preparation for the final pretrial

conference and trial. In securities cases, the Court has a standing order concerning early notice

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to class members. They are always available for review at the website for the United States

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District Court for the Northern District of California at www.cand.uscourts.gov.

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Dated: November 20, 2008.

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

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United States District Court
For the Northern District of California

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