Ai-Daiwa, Ltd. v. Apparent, Inc. et al

Filing 93

Order by Hon. Vince Chhabria granting 92 Stipulation to Continue Settlement Conference.(knm, COURT STAFF) (Filed on 10/8/2014)

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[Counsel listed on page 2]

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AI-DAIWA, LTD.,

Case No.: CV13-4156 EDL

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Plaintiff,
JOINT REPORT OF COUNSEL RE
STATUS OF COURT EXPERT’S
TESTING AND POTENTIAL IMPACT
ON SCHEDULING; JOINT
STIPULATION AND REQUEST TO
CONTINUE SETTLEMENT
CONFERENCE; AND (PROPOSED)
ORDER

v.
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A Professional Corporation

PARTON | SELL | RHOADES

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APPARENT, INC., a Delaware Corporation;
APPARENT ENERGY, INC., a Delaware
Corporation; APPARENT SOLAR, INC., a
Delaware Corporation; APPARENT SOLAR
INVESTMENTS, LLC, a Hawaii limited
liability company; XSLENT, LLC, a Delaware
limited liability company; XSLENT ENERGY
TECHNOLOGIES, LLC, a Delaware limited
liability company; and DOES 1-10 inclusive,

Case Filed:
Trial Date:

9/9/13
7/6/15

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Defendants
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AND RELATED CROSS-ACTION

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CV13-4156 EDL

JOINT REPORT OF COUNSEL RE STATUS OF COURT EXPERT’S TESTING AND POTENTIAL IMPACT ON
SCHEDULING; JOINT STIPULATION AND REQUEST TO CONTINUE SETTLEMENT CONFERENCE; AND
(PROPOSED) ORDER

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A Professional Corporation

PARTON | SELL | RHOADES

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JAMES PARTON, ESQ. (SBN 77698)
FRANCIS CONWAY, ESQ. (SBN 186207)
PARTON | SELL | RHOADES
A Professional Corporation
900 Larkspur Landing Circle, Suite 150
Larkspur, CA 94939
Telephone:
[phone]
Facsimile:
[phone]
Email: [e-mail]
JACQUELINE DESOUZA, ESQ. (SBN 133686)
DESOUZA LAW OFFICES, PC
1615 Hopkins Street
Berkeley, CA 94707
T:
[phone]
F:
[phone]
Email: [e-mail]
Attorneys for Defendants, APPARENT, INC.;
APPARENT ENERGY, INC.; APPARENT
SOLAR, INC., XSLENT ENERGY
TECHNOLOGIES, LLC; and APPARENT SOLAR
INVESTMENTS (II), LLC (erroneously sued
herein as Apparent Solar Investments, LLC) and
Counter Claimants, APPARENT, INC. and
APPARENT ENERGY, INC

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CHI-HUNG A. CHAN (SBN 104289)
LAEL D. ANDARA (SBN 215416)
MARIE E SOBIESKI (SBN 278008)
ROPERS, MAJESKI, KOHN & BENTLEY
1001 Marshall Street, Suite 500
Redwood City, CA 94063-2052
T:
[phone]
F:
[phone]
Email: [e-mail]
[e-mail]
[e-mail]

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Attorneys for Plaintiff
AI-DAIWA, LTD.

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CV13-4156 EDL

JOINT REPORT OF COUNSEL RE STATUS OF COURT EXPERT’S TESTING AND POTENTIAL IMPACT ON
SCHEDULING; JOINT STIPULATION AND REQUEST TO CONTINUE SETTLEMENT CONFERENCE; AND
(PROPOSED) ORDER

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TO THE COURT:

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On October 1, 2014, counsel for all parties, Lael Andara and Marie E Sobieski for Plaintiff

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and Jacqueline deSouza and James Parton III for Defendants, met in person with the Court Expert,

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John C. McNulty, Ph.D., and Ray K. Huang, Ph.D. and Meredith C. K. Sellers, Ph.D., at Exponent

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in Menlo Park to discuss the draft test protocol and Dr. McNulty’s projected time line for

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completing the testing and preparing his report.
Dr. McNulty’s draft test protocol provides for two possible phases of testing. Phase I is

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nondestructive testing of incident (i.e. failed) and exemplar units. Phase 2, if necessary, involves

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destructive testing.
The Phase 1 testing involves: external/internal inspection and a variety of electrical testing

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A Professional Corporation

PARTON | SELL | RHOADES

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of all units; electrical testing over the rated temperature range for select incident and exemplar units;

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and thermal imaging of select incident and exemplar units.
The draft test protocol further provides that Dr. McNulty will advise the parties regarding

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the need for destructive testing by November 1. The need for destructive testing, and the number of

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units that may need destructive testing, will be determined based on the results of the nondestructive

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testing.

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Dr. McNulty anticipates being able to provide a preliminary expert report for review by

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November 20, pending verification that the settlement conference scheduled for November 7 can be

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moved to the first week of December. He anticipates that he will need an additional 1 – 4 weeks to

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supplement the expert report with destructive evaluation results (depending on the number of units

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he needs for destructive testing. Thus, Dr. McNulty advises that he may not have his complete

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expert report available for review until December 20.

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The parties agree that they need a minimum of 7 days, and preferably 10 days, to evaluate

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Dr. McNulty’s preliminary and final expert reports before they can have a productive settlement

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conference.

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Pursuant to the Minute Order [Docket 81] and the Notice Of Settlement Conference And
Settlement Conference Order [Docket 82], the following are the scheduled dates in this case:
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CV13-4156 EDL

JOINT REPORT OF COUNSEL RE STATUS OF COURT EXPERT’S TESTING AND POTENTIAL IMPACT ON
SCHEDULING; JOINT STIPULATION AND REQUEST TO CONTINUE SETTLEMENT CONFERENCE; AND
(PROPOSED) ORDER

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November 7, 2014

Settlement Conference before Magistrate Judge
Kandis A. Westmore; Discovery stay until this date.

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December 16, 2014

Case Management Conference

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January 21, 2015

Discovery cut off; Expert disclosure

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February 4, 2015

Expert rebuttal

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February 28, 2015

Expert discovery cut off

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May 28, 2015

Motion cut off

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June 23, 2015

Pre-Trial Conference

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July 6, 2015

Trial

The parties wish to maintain the current trial (and related) dates, if possible.

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A Professional Corporation

PARTON | SELL | RHOADES

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However, based on Dr. McNulty’s time estimates, the parties request the Court’s

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permission to reschedule the Settlement Conference to December 3, 2014, on which date the

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availability of all parties, their counsel, and Magistrate Judge Westmore has been confirmed.

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Further, the parties wish to apprise the Court of the possibility that the Court Expert’s report

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will not be completed until December 20. In that case, the Settlement Conference, in order to have a

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substantial chance of success, would need to be moved to early January, 2015.

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Given the scheduling order, defendants request that the discovery stay not be extended
beyond November 7.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: ______10/3/2014_________

__/Lael D. Andara/_______________________
Attorneys for AI-Daiwa

DATED: ______10/3/2014_________

__/Jacqueline deSouza/____________________

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Attorneys for Defendants and Counterclaimants

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DATED: ______10/3/2014_________

__/James Parton III/____________________
Attorneys for Defendants and Counterclaimants

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CV13-4156 EDL

JOINT REPORT OF COUNSEL RE STATUS OF COURT EXPERT’S TESTING AND POTENTIAL IMPACT ON
SCHEDULING; JOINT STIPULATION AND REQUEST TO CONTINUE SETTLEMENT CONFERENCE; AND
(PROPOSED) ORDER

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PURSUANT TO THE ABOVE STIPULATION, IT IS SO ORDERED.

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The SETTLEMENT CONFERENCE before Magistrate Judge Kandis A. Westmore,

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currently scheduled on November 7, 2014 may be rescheduled to December 3, 2014. The discovery

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stay is lifted effective November 7, 2014.

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A Professional Corporation

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JOINT REPORT RE STATUS OF COURT EXPERT'S WORK

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Hon. Vince ChhabriaRED
ORDE
United States District Judge
T IS SO
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R NIA

Dated: October 8, 2014
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UNIT
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CV13-4156 EDL

JOINT REPORT OF COUNSEL RE STATUS OF COURT EXPERT’S TESTING AND POTENTIAL IMPACT ON
SCHEDULING; JOINT STIPULATION AND REQUEST TO CONTINUE SETTLEMENT CONFERENCE; AND
(PROPOSED) ORDER