Microsystems Development Technologies, Inc. v. Panasonic Corporation et al

Filing 215

STIPULATION AND ORDER. Signed by Judge James Donato on 9/19/2016. (jdlc3S, COURT STAFF) (Filed on 9/19/2016)

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[Counsel for Stipulating Parties Listed on Signature Pages]

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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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In re Resistors Antitrust Litigation

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______________________________________

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This Document Relates To:
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Case No. 3:15-cv-03820-JD

STIPULATION AND [PROPOSED]
ORDER CONCERNING EXPERT
DISCOVERY

ALL ACTIONS
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STIPULATION AND [PROPOSED] ORDER CONCERNING EXPERT DISCOVERY
CASE NO. 3:15-CV-03820

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The parties through their respective counsel of record stipulate to the following regarding the

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scope of expert discovery in the above-captioned matters and all other matters subsequently

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consolidated with them (collectively, the “Actions”), subject to approval by the Court as required by

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the Standing Order for Discovery in Civil Cases before Judge Donato.

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1.

This Stipulation and Order Concerning Expert Discovery (“Stipulation”) does not set

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or alter the time for any disclosure required by Federal Rule of Civil Procedure 26(a)(2)(B) or the

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timing of any deposition of any testifying expert. The parties contemplate that they will later submit

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a stipulation addressing these matters for approval by the Court or the Court will establish a

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timetable for disclosures and depositions.

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2.

To the extent that this Stipulation imposes limitations on discovery that would

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otherwise be available under the Federal Rules of Civil Procedure or this Court’s standing orders, the

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parties have agreed to those limitations to increase the efficiency of their dealings with testifying

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experts and to minimize discovery disputes regarding testifying experts. Neither the terms of this

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Stipulation nor the parties’ agreement to them shall be considered an admission by any person that

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any of the information restricted from discovery by this Stipulation would otherwise be discoverable

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or admissible.

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3.

For purposes of the Actions, Rule 26(a)(2)(B)(ii) is modified to read: “the facts, data

and other information relied on by the witness in forming them.”
4.

Except as provided in paragraphs 6 and 7 below, the following types of information

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shall not be the subject of any form of discovery and the parties shall not be obligated to preserve

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such information in any form or include such information on any privilege log:

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a.

The content of communications among and between:
i.

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firms;
ii.

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counsel and any non-testifying expert consultant and/or the
consultant’s staff;

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counsel and the expert and/or the expert’s staff and/or supporting

iii.

the expert and other experts and/or other non-testifying expert
consultants;
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STIPULATION AND [PROPOSED] ORDER CONCERNING EXPERT DISCOVERY
CASE NO. 3:15-CV-03820

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iv.

experts and their staff and/or supporting firms;

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v.

non-testifying expert consultants and their staffs;

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vi.

the respective staffs and/or supporting firms of experts or non-

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testifying expert consultants and the staffs and/or supporting firms of

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other experts or non-testifying expert consultants.

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b.

Notes,

drafts,

written

communications,

preliminary

or

intermediate

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calculations, computations or other data runs, or other types of preliminary work created by, for, or

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at the direction of a testifying expert.

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5.

No party or their experts are obligated to preserve or produce budgets, invoices, bills,

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receipts or time records concerning testifying or non-testifying expert witnesses or consultants, their

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staff, assistants, colleagues, or associates, or their companies or organizations.

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6.

The limitations contained in paragraphs 4 and 5 above shall not apply to any

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communications, documents, data sets, data runs, calculations, computations or other forms of

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information or work upon which a testifying expert relies as a basis for any of his or her opinions or

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reports.

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7.

Notwithstanding the limitations contained in paragraphs 4 and 5 above, an expert may

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be asked: (a) to identify and generally describe investigations or modeling (including any regression

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analyses) that the expert attempted but rejected, (b) to describe the reasons for rejecting any such

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investigations or modeling, (c) to respond to reasonable questions regarding the hourly rates of the

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expert and his or her staff, the amount of time an expert or that expert’s staff has spent on the

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expert’s report and associated work, and the amount of money billed for the report and associated

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work.

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8.

Within three business days of any party serving any expert report and/or expert

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declaration pursuant to Fed. R. Civ. P. 26(a)(2)(B) or otherwise, the party or parties proffering the

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expert witness shall produce: the data or other information relied upon by the expert witness in

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forming the expert witness’s opinions; any exhibits that will be used to summarize or support the

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expert witness’s opinions; any work product (including but not limited to, analyses, spreadsheets,

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graphs, and charts) relied upon by the expert witness that is based on the output from any computer
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STIPULATION AND [PROPOSED] ORDER CONCERNING EXPERT DISCOVERY
CASE NO. 3:15-CV-03820

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programs that are produced; the expert witness’s qualifications, including a list of all publications

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authored in the previous 10 years; a list of all other cases in which, during the previous four years,

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the expert witness has testified as an expert at trial or by deposition; and a statement of the hourly

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rate to be paid for the expert witness’s time in the case. “Data or other information relied upon”

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shall be deemed to include, but will not be limited to, underlying data, spreadsheets, computerized

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regression analysis and/or other underlying reports and schedules sufficient to reconstruct the work,

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calculations, and/or analyses upon which the expert witness is relying for his or her opinions.

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9.

The information required by paragraph 8 above to be produced shall be produced

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electronically (via email, disc or FTP site) where feasible. Data, statistical analyses, or other

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information (including any calculation or exhibit) upon which an expert relies for any of his or her

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opinion(s) in this matter shall be provided in machine readable format, including any data that has

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been cleaned, reformatted, or modified in any way from the form in which it may have been

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provided to the expert. All other documents, data, and other information relied upon shall be

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provided in a format as agreed to by the parties, along with any software and instructions required to

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read them, but no party need produce computer software that is reasonably and commercially

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available (e.g., Microsoft Word, Excel). Documents that are publicly available need not be produced

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absent specific request if they are identified with sufficient specificity to allow the opposing side to

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locate and obtain the document. Documents that have previously been produced during discovery

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need not be produced if they are identified by Bates number.

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10.

Paragraph 8 above is not intended to limit the ability of any party to prepare and use

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demonstrative exhibits, including demonstrative exhibits that may relate to an expert’s testimony,

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during the course of any hearing or trial. The admissibility of any such demonstrative exhibits shall

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be subject to the Federal Rules of Evidence, the Rules of Civil Procedure, and this Court’s Local

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Rules, unless otherwise provided by order of the Court.

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11.

No subpoenas (for depositions or documents) need be served on any testifying expert

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from whom a report or declaration is provided. Instead, the party proffering such expert will (a) be

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responsible for producing all materials and information relied on by the expert, and (b) make the

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expert available for deposition at a time mutually agreed to by the parties and consistent with the
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STIPULATION AND [PROPOSED] ORDER CONCERNING EXPERT DISCOVERY
CASE NO. 3:15-CV-03820

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Court’s scheduling orders. Nothing in this Stipulation shall permit a party or a testifying expert to

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withhold any proposition, fact, belief or other data, information or material on which the expert

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relies in support of her or his opinion(s) in this matter.

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12.

The parties agree to comply with this Stipulation pending the Court’s approval.

DATED: September 19, 2016

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HAGENS BERMAN SOBOL SHAPIRO LLP

COHEN MILSTEIN SELLERS & TOLL
PLLC

By

By

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/s/ Jeff D. Friedman
JEFF D. FRIEDMAN

Shana E. Scarlett (217895)
Benjamin Siegel (256260)
715 Hearst Avenue, Suite 202
Berkeley, CA 94710
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Steve W. Berman (pro hac vice)
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Avenue, Suite 3300
Seattle, WA 98101
Telephone: [phone]
Facsimile: [phone]
[e-mail]

/s/ Kit A. Pierson
KIT A. PIERSON

Daniel A. Small (pro hac vice)
Emmy L. Levens (pro hac vice)
Robert H. Braun (pro hac vice)
Laura Alexander (255485)
1100 New York Ave. NW, Suite 500, West
Tower
Washington, DC 20005
Telephone: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Co-Lead Counsel for Direct Purchaser
Plaintiffs

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Co-Lead Counsel for Direct Purchaser
Plaintiffs

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CROWELL & MORING LLP

WINSTON & STRAWN LLP

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By

By

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/s/ Jason C. Murray
JASON C. MURRAY

Emily Tomoko Kuwahara
Robert B. McNary
Jordan Lee Ludwig
515 South Flower Street , 40th Floor
Los Angeles, CA 90071
Telephone: [phone]

/s/ Jeffrey L. Kessler
JEFFREY L. KESSLER

Jeffrey L. Kessler
Eva W. Cole
Erica C. Smilevski
WINSTON & STRAWN LLP
200 Park Avenue
New York, NY 10166
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STIPULATION AND [PROPOSED] ORDER CONCERNING EXPERT DISCOVERY
CASE NO. 3:15-CV-03820

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Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

Katie Michelle Yablonka
CROWELL & MORING LLP
275 Battery St., 23rd Floor
San Francisco, CA 94111
Telephone: [phone]
[e-mail]

Ian L. Papendick
WINSTON & STRAWN LLP
101 California Street
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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Counsel for KOA Corp. and KOA Speer
Electronics, Inc.

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Counsel for Panasonic Corp. and
Panasonic Corp. of North America

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Brandon W Duke
WINSTON & STRAWN LLP
1111 Louisiana Street
25th Floor
Houston, TX 77002
Telephone: [phone]
[e-mail]

O’MELVENY & MYERS LLP

COTCHETT, PITRE & MCCARTHY LLP

By

By

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/s/ Michael F. Tubach
MICHAEL F.TUBACH

Two Embarcadero Center , 28th Floor
San Francisco, CA 94111-3305
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Kenneth Ryan O’Rourke
O’MELVENY & MYERS LLP
400 South Hope Street
Los Angeles, CA 90071-2899
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Counsel for Rohm Co. Ltd. and Rohm
Semiconductor U.S.A., LLC

/s/ Steven N. Williams
STEVEN N. WILLIAMS

Joseph W. Cotchett
Adam John Zapala
Demetrius Xavier Lambrinos
Joyce Chang
Elizabeth Tran
840 Malcolm Road, Suite 200
Burlingame, CA 94010
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Counsel for Indirect Purchaser Plaintiffs

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STIPULATION AND [PROPOSED] ORDER CONCERNING EXPERT DISCOVERY
CASE NO. 3:15-CV-03820

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BARNES & THORNBURG LLP

LATHAM & WATKINS LLP

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By

By

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/s/ Kendall Millard
KENDALL MILLARD

Todd A. Dixon
Bradley R. Love
11 South Meridian Street
Indianapolis, IN 46204-3535
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

/s/ Ashley M. Bauer
ASHLEY M. BAUER

Belinda S Lee
505 Montgomery Street, Suite 2000
San Francisco, CA 94111-6538
Telephone: [phone]
[e-mail]
[e-mail]
Counsel for Kamaya, Inc. and Kamaya
Electric Co., Ltd.

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Roya Rahmanpour
BARNES & THORNBURG LLP
2029 Century Park East, Suite 300
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Counsel for Hokuriku Electric Industry Co.
and HDK America, Inc.
E-FILING ATTESTATION

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JEFF D. FRIEDMAN

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***

PURSUANT TO STIPULATION, IT IS SO ORDERED.

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a to
es Don
d ge J a m
Ju
HONORABLE JAMES DONATO
ER
United States District Court Judge C

NO

September 19, 2016
DATED: ________________________

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VED
APPRO

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UNIT
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RT
U
O

S DISTRICT
TE
C
/s/ Jeff D. Friedman
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identified above has concurred in this filing.

S

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document. In compliance with Civil Local Rule 5-1(i)(3), I hereby attest that each of the signatories

R NIA

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I, Jeff D. Friedman, am the ECF User whose ID and password are being used to file this

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FO

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F
D IS T IC T O
R

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STIPULATION AND [PROPOSED] ORDER CONCERNING EXPERT DISCOVERY
CASE NO. 3:15-CV-03820