Phoenix Technologies Ltd. v. VMware, Inc.

Filing 209

ORDER by Judge Haywood S. Gilliam, Jr. Granting 208 Stipulation RE: PRETRIAL DEADLINES. (terminating 203 Stipulation RE: PRETRIAL DEADLINES).(ndrS, COURT STAFF) (Filed on 11/17/2016)

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MICHAEL A. JACOBS (CA SBN 111664)
[e-mail]
ARTURO J. GONZÁLEZ (CA SBN 121490)
[e-mail]
ALEXANDRIA A. AMEZCUA (CA SBN 247507)
[e-mail]
DIANA B. KRUZE (CA SBN 247605)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, CA 94105-2482
Telephone: [phone]
Facsimile: 415.268.7522
Attorneys for Defendant
VMWARE, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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PHOENIX TECHNOLOGIES LTD, a
Delaware corporation,
Plaintiff,

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VMWARE, INC., a Delaware corporation,
Defendant.
VMWARE, INC., a Delaware corporation,

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JOINT STIPULATION AND ORDER
RE: PRETRIAL DEADLINES

v.

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Case No. 15-cv-01414-HSG

Counterclaimant,
v.
PHOENIX TECHNOLOGIES LTD, a
Delaware corporation,
Counterdefendant.

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STIPULATION AND [PROPOSED] ORDER RE: PRETRIAL DEADLINES
Case No. 15-cv-01414-HSG

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STIPULATION AND [PROPOSED] ORDER

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Pursuant to Civil Local Rules 6-2 and 7-11, and the October 25, 2016 scheduling

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conference with the Court, Phoenix Technologies Ltd. (“Phoenix”) and VMware, Inc.

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(“VMware”) file this joint stipulation regarding revised pretrial deadlines and stipulate as follows:
WHEREAS, the Court proposed that the trial in this matter be reset to February 20, 2017

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(Dkt. 200);
WHEREAS, on November 1, 2016, the Parties filed a status report notifying the Court

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that Phoenix had a conflict with the Court’s proposed date (Dkt. 201);

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WHEREAS, the Parties propose that the trial in this matter be reset to February 13, 2017;

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WHEREAS, the Parties propose that the final pretrial conference in this matter be reset to

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January 31, 2017;

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WHEREAS, the Court’s Standing Order for Civil Pre-Trial and Trial matters is silent as to

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certain deadlines, such as the deadline for exchange of exhibit objections, counter-designations

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and objections to deposition designations;
WHEREAS, the Parties believe it would be helpful to have a detailed exchange protocol

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for demonstratives;

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WHEREAS, the Parties believe it would be helpful to exchange proposed jury

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instructions, voir dire questions, and proposed verdict forms in advance of filing them with the

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Court to minimize disputes; 1
NOW, THEREFORE, the Parties hereby stipulate and agree to the following:

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 The parties shall file oppositions to the already-filed in limine motions on

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January 17, 2017.

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 The Parties will exchange drafts of proposed jury instructions, voir dire questions,

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and proposed verdict forms on January 10, 2017. Thereafter, the Parties shall meet

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and confer in an effort to minimize disputes. The Plaintiff shall file a final set of

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The proposals regarding demonstratives and other pretrial exchanges are similar to those found
in the parties’ previously-filed stipulation. (ECF No. 176.) Docket No. 176 is mooted by the
instant stipulation.
STIPULATION AND [PROPOSED] ORDER RE: PRETRIAL DEADLINES
CASE NO. 3:15-cv-01414-HSG
sf-3712993

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joint jury instructions, voir dire questions, and proposed verdict form on

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January 17, 2017. All other provisions regarding the jury instructions, voir dire

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questions, and verdict forms in the Court’s Standing Order for Civil Pre-Trial and

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Trial matters shall remain in effect.

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 The following table summarizes all remaining deadlines:

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Event
Parties shall exchange exhibit objections,
counter-designations and objections to
deposition designations.
Parties shall exchange drafts of proposed jury
instructions, voir dire questions and proposed
verdict form.
Parties shall exchange objections to deposition
counter-designations.
Plaintiff to file joint pretrial statement, statement
of the case, proposed jury instructions, voir dire
questions, and proposed verdict form.
Last day to file trial briefs (optional).
Last day to file oppositions to motions in limine.
Last day to submit binders to Court pursuant to
¶ 5 of the Court’s standing order.
Final Pretrial Conference
Last day to submit binders to Court pursuant to
¶ 20 of the Court’s standing order.
First Day of Trial

New Date

January 6, 2017

January 10, 2017
January 17, 2017
January 17, 2017
January 17, 2017
January 17, 2017
January 18, 2017
January 31, 2017
February 6, 2017
February 13, 2017

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 Demonstratives (e.g., graphics, charts, diagrams, illustrative animations, models,

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etc.) need not be disclosed with evidentiary exhibits pursuant to paragraph 2 of the

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Court’s Civil Pre-trial and Trial Standing Order. Instead, the parties agree that

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expert and fact witnesses may use demonstrative presentations that illustrate their

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testimony. The parties reserve their right to object to demonstratives on any

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appropriate grounds for objection. Each party shall disclose to the other party all

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demonstratives that such party will use during the direct examination of a witness

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or expert witness via email no later than 5:00 p.m. the night before such witness is
STIPULATION AND [PROPOSED] ORDER RE: PRETRIAL DEADLINES
CASE NO. 3:15-cv-01414-HSG
sf-3712993

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scheduled to testify. Each party shall disclose to the other party all demonstratives

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that such party will use during the cross examination of a witness or expert witness

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just prior to the beginning of that witness’s or expert’s cross examination so that

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the other party may have sufficient time to review them and raise objections before

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the examination begins. Excerpts, call-outs, blow-ups, or highlighting of admitted

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exhibits, without more, are exempt from exchange. After demonstratives have

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been used during trial, the parties may “lodge” them in the case docket in order for

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them to become part of the official record of the case. They will not be admitted

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as exhibits. The disclosure of demonstratives that the parties plan to use in the

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opening statement shall be governed by a separate procedure outlined in the Joint

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Pretrial Statement.

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IT IS SO STIPULATED.

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Dated: November 16, 2016

Dated: November 16, 2016

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COOLEY LLP

MORRISON & FOERSTER LLP

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/s/ Whitty Somvichian
Whitty Somvichian

/s/ Diana Kruze
Diana Kruze 2

Attorneys for Plaintiff and Counterdefendant
PHOENIX TECHNOLOGIES LTD.

Attorneys for Defendant and Counterclaimant
VMWARE, INC.

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I, Diana Kruze, am the ECF User whose ID and password are being used to file this Declaration.
In compliance with Civil L.R. 5-1(i)(3). I hereby attest that Whitty Somvichian has concurred in
this filing.
STIPULATION AND [PROPOSED] ORDER RE: PRETRIAL DEADLINES
CASE NO. 3:15-cv-01414-HSG
sf-3712993

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ORDER

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PURSUANT TO THE PARTIES’ STIPULATION,

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IT IS SO ORDERED.

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Date: November 17, 2016

__________________________________
Honorable Haywood S. Gilliam, Jr.
United States District Judge

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STIPULATION AND [PROPOSED] ORDER RE: PRETRIAL DEADLINES
CASE NO. 3:15-cv-01414-HSG
sf-3712993

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