PhoneDog, LLC v. Kravitz

Filing 26

CASE MANAGEMENT SCHEDULING ORDER: Case referred to mediation. Discovery due by 7/24/2012. Jury Trial set for 1/28/2013. Motion Hearing set for 9/27/2012. Motions due by 8/23/2012. Pretrial Conference set for 12/27/2012. Signed by Judge Maria-Elena James on 10/21/2011. (cdnS, COURT STAFF) (Filed on 10/21/2011)

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UNITED STATES DISTRICT COURT

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Northern District of California

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PHONEDOG, LLC,

No. CV11-3474 MEJ
Plaintiff,

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v.

CASE MANAGEMENT ORDER

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NOAH KRAVITZ,
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Defendant.
_____________________________________/

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Pursuant to Federal Rule of Civil Procedure 16, the Court hereby VACATES the October 27,

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2011 Case Management Conference and ORDERS as follows:

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A.

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ADR Program:
The parties are referred to mediation.

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B.

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Trial:
The Court shall conduct a jury trial in this matter.

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C.

Pretrial Motions:

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All pretrial motions shall be filed in accordance with Civil Local Rule 7. A motion may be

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noticed pursuant to Civil Local Rule 7-2 without calling the Court. Civil law and motion is

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heard on Thursday mornings at 10:00 a.m.

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D.

Discovery:

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The parties shall abide by Magistrate Judge James’ Standing Order Regarding Discovery and

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Dispute Procedures.

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E.

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Deadline to Amend Pleadings
The deadline to file any amended pleadings is 4/30/2012.

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F.

Disclosure of Expert Witnesses:

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1.

Any party wishing to present expert witness testimony with respect to a claim or defense

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shall serve on all other parties the name, address, qualifications, resume, and a written report

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which complies with Federal Rule of Civil Procedure 26(a)(2)(B) by 6/29/2012.

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2.

This disclosure must be made with respect to a person who is either: (a) specifically retained
or specially employed to provide expert testimony pursuant to Federal Rule of Evidence 702;

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or (b) a regular employee or agent or treating physician who may be called to provide expert

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opinion testimony.

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For the Northern District of California

UNITED STATES DISTRICT COURT

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3.

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A party or counsel has a continuing duty to supplement the disclosure of expert
witnesses when required under Federal Rule of Civil Procedure 26(e)(1).

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G.

Rebuttal Expert Witnesses:

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If the testimony of an expert is intended solely to contradict or rebut opinion testimony on

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the same subject matter identified by another party, the party proffering a rebuttal expert

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shall disclosure the information required under Federal Rule of Civil Procedure 26(a)(2)(B)

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by 7/9/2012.

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H.

Limitation on Testimony by Expert Witnesses:

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1.

Unless the parties enter into a written stipulation otherwise, upon timely objection, an expert

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witness shall be precluded from testifying about any actions or opinions not disclosed prior

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to the expert’s deposition. This is to ensure that all factual material upon which expert

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opinion may be based is disclosed, and all tests and reports are completed, prior to the expert

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deposition.

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2.

Unless application is made prior to the close of expert discovery, each party is limited to

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calling only one expert witness in each discipline involved in the case.

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3.

Any party objecting to the admissibility of the testimony of a person disclosed as an expert

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witness must file a written motion in limine to exclude the testimony by the deadline set forth

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below.

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I.

Close of Discovery:

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1.

All discovery, including depositions of expert witnesses, must be completed by 7/24/2012.

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2.

Pursuant to Federal Rule of Civil Procedure 16(b) and Civil Local Rule 26-2, a discovery

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request or stipulation that calls for responses or depositions after the discovery cut-off date is
not enforceable except by order of the Court and upon a showing of good cause.

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3.

Pursuant to Civil Local Rule 26-2, no motions to compel discovery (including joint letters

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For the Northern District of California

UNITED STATES DISTRICT COURT

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and requests for telephonic conferences under Magistrate Judge James' discovery standing

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order) may be filed later than 10 days after the discovery cut-off date.

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J.

Dispositive Motions:

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1.

Pursuant to Civil Local Rule 7-2, all dispositive motions shall be filed, served, and noticed

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by 8/23/2012. The parties shall file a joint statement of undisputed facts pursuant to

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Civil Local Rule 56-2(b) when filing a motion for summary judgment.

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2.

The Court shall hear dispositive motions on 9/27/2012 at 10:00 a.m. in Courtroom B, 15th

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Floor of the Federal Building, located at 450 Golden Gate Avenue, San Francisco,

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California.

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K.

Exchange and filing of Trial Papers:

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1.

By 11/28/2012, lead counsel who will try the case shall meet and confer with respect to the

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preparation and content of the joint pretrial conference statement and shall exchange (but not

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file or lodge) the papers described in paragraph 2 below.

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2.

By 12/13/2012, counsel shall file the papers described in Federal Rule of Civil Procedure

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26(a)(3) and a joint pretrial conference statement including the following:

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(A)

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Substance of the Action: A brief description of the substance of claims and defenses
which remain to be decided.

(B)

Relief Prayed: A detailed statement of all the relief claimed, particularly itemizing all

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elements of damages claimed as well as witnesses, documents or other evidentiary

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material to be presented concerning the amount of damages.

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(C)

Undisputed Facts: A plain and concise statement of all relevant facts not reasonably

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disputable, as well as which facts parties will stipulate for incorporation into the trial

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record without the necessity of supporting testimony or exhibits.

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(D)

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For the Northern District of California

UNITED STATES DISTRICT COURT

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which remain to be decided.
(E)

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Agreed Statement: A statement assessing whether all or part of the action may be
presented upon an agreed statement of facts.

(F)

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Disputed Factual Issues: A plain and concise statement of all disputed factual issues

Stipulations: A statement of stipulations requested or proposed for pretrial or trial
purposes.

(G)

Witness list: A list of all witnesses to be called for trial. The parties shall submit a

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page-length detailed summary of the substance of the proposed testimony of each

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witness, which shall also specify to which disputed fact the testimony relates, and an

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estimate of the time required for direct and cross examination of each witness.

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(H)

Exhibit list: A list of all exhibits to be offered at trial. The list shall state each

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proposed exhibit by its number or alphabetical letter, description and sponsoring

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witness. All documents shall be authenticated prior to trial.

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(I)

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witness or exhibit list, except with leave of the Court for good cause shown.
(J)

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No party shall be permitted to offer any witness or exhibit that is not disclosed in its

Estimated Time of Trial: An estimate of the number of hours needed for the
presentation of each party’s case.

(K)

Settlement: A statement summarizing the status of the parties’ settlement

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negotiations.

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3.

Motions in limine: Counsel are directed to meet and confer to resolve any evidentiary

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disputes prior to filing motions in limine.

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(A)

Any motions in limine shall be filed by 12/13/2012.

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(B)

Any Opposition to motions in limine shall be filed by 12/20/2012.

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(C)

These matters will be deemed submitted on the papers without oral argument, unless

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the Court orders otherwise.
4.

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pursuant to Ninth Circuit authority, for all significant disputed issues of law, including

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foreseeable procedural and evidentiary issues, by 12/28/2012.
5.

Joint Proposed Voir Dire: Counsel shall file a joint set of requested voir dire to be posed by

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Trial Briefs: Counsel shall file trial briefs setting forth the applicable legal standard,

the Court by 12/28/2012. Any voir dire questions on which counsel cannot agree shall also

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be filed separately by 12/28/2012. Counsel will be allowed brief follow-up voir dire after the

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Court’s questioning.

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6.

Joint Proposed Jury Instructions:
(A)

Counsel shall file a joint set of additional proposed jury instructions by 12/28/2012.

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Jury instructions from the Manual of Model Civil Jury Instructions for the Ninth

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Circuit should be used whenever possible. The instructions shall be ordered in a

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logical sequence, together with a table of contents.

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(B)

Any instruction on which counsel cannot agree shall be marked as “disputed” and

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included within the jointly submitted instructions and accompanying table of

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contents, in the place where the party proposing the instruction believes it should be

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given. Argument and authority for and against each disputed instruction shall be

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included as part of the joint submission, on a separate page directly following the

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disputed instruction.

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(C)

The Court prefers that all jury instructions conform to the Manual of Model Civil
Jury Instructions for the Ninth Circuit.

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(D)

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Counsel shall deliver to the Courtroom Deputy a copy of their joint proposed jury

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instructions on a portable storage medium (such as a USB thumb drive) in

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WordPerfect format. The label shall include the name of the parties, the case number

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and be entitled “Proposed Jury Instructions.”

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(E)

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At the close of Defendant’s case in chief, the Court shall hear oral argument on the
disputed jury instructions and will then render its rulings.

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Proposed Verdict Forms, Joint or Separate: Counsel shall file any joint proposed verdict

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forms, as well as any separate verdict forms, by 12/28/2012. Counsel shall deliver to the

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Courtroom Deputy a copy of their joint proposed verdict forms on a portable storage medium
in WordPerfect. The label shall include the name of the parties, the case number, and be

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entitled “Proposed Verdict Forms.”

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For the Northern District of California

UNITED STATES DISTRICT COURT

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L.

Pretrial Conference:

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On 12/27/2012 at 10:00 a.m., the Court shall hold a pretrial conference in Courtroom B, 15th

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Floor, 450 Golden Gate Avenue, San Francisco, California. Lead counsel who will try the

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case must attend the pretrial conference. The purpose of the pretrial conference is for the

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Court to rule on any issues raised in the pretrial conference statement, motions in limine, and

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to discuss the trial of the case.

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M.

Final Pretrial Conference:

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On 1/24/2013 at 10:00 a.m. in Courtroom B, the Court shall hold a final pretrial conference

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to address any outstanding trial issues.

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N.

Trial Date:

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1.

The trial (including jury selection) shall commence on 1/28/2013 (Trial schedule: Monday
through Friday, 9:30 a.m. to 3:00 p.m.). The trial shall last 5 days.

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2.

For any documents, including the deposition of a witness testifying at trial, which will be

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shown to a witness but not admitted into evidence, counsel shall bring the original plus three

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copies of the documents. The original document will be handed to the Court during

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testimony and the copies will be given to the witness during the examination and to opposing

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counsel.

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3.

(A)

Counsel shall maintain their own exhibits during trial. Exhibits are to be premarked

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with exhibit tags attached to the upper lefthand corner. If a photo or chart is being

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used as an exhibit, the exhibit tag should be placed on the back side of the exhibit.

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The Court will only admit premarked exhibits which were listed on the earlier filed

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exhibit list.

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(B)

Plaintiff shall mark the exhibits numerically; Defendant shall mark the exhibits
alphabetically. The exhibit markers shall each contain the name and number of the

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For the Northern District of California

UNITED STATES DISTRICT COURT

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case, the number or alphabetical letter of the exhibit, and blank spaces to

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accommodate the date admitted and the Deputy Clerk’s initials.

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4.

On the day of trial, counsel shall bring the original premarked exhibits, a copy of the

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premarked exhibits for opposing counsel, and two binders which contain a copy of each

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side’s premarked exhibits for the Court. The premarked exhibit binders are to be designated

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with label dividers and given to the Courtroom Deputy on the morning of the trial.

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O.

Jury Selection:

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1.

The Jury Commissioner will summon 20 to 25 prospective jurors. The Courtroom Deputy

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will select their names at random and seat them in the courtroom in the order in which their

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names are called.

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2.

Voir dire will be asked of sufficient venire persons that eight (or more for a lengthy trial) will

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remain after all peremptory challenges and an anticipated number of hardship dismissals and

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cause challenges have been made.

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3.

The Court will then take cause challenges and discuss hardship claims from the individual
jurors at side bar. The Court will inform the attorneys which hardship claims and cause

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challenges will be granted, but will not announce those dismissals until the process is

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completed. Each attorney may then list in writing up to three peremptory challenges. The

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attorneys will review each other’s lists and then submit them to the clerk.

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4.

From the list of jurors in numerical order, the Court will strike the persons with meritorious

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hardships, those excused for cause, and those challenged peremptorily. The Court will then

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call the first eight people in numerical sequence remaining. These people will be the jury.

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All jurors remaining at the close of the case will deliberate. There are no alternates (unless

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there is a lengthy trial).

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P.

Sanctions:
Failure to comply with this Order is cause for sanctions under Federal Rule of Civil

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Procedure 16(f).

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Q.

Transcripts and Recording Devices:

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1.

Counsel requesting a daily transcript shall contact Debra Campbell, Supervisor Court

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Reporting Services, at [phone], at least ten days in advance of the trial date.
2.

If any video or tape recording equipment or demonstrative devices will be used, a signed

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order will need to be obtained at least ten days in advance of the trial date for the items to

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clear security.

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R.

Questions:

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All questions regarding these instructions should be directed to Brenda Tolbert, Courtroom

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Deputy Clerk to Judge James, at [phone].

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IT IS SO ORDERED.

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Dated: October 21, 2011
_______________________________
Maria-Elena James
Chief United States Magistrate Judge

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