B & R Supermarket, Inc., et al v. Visa, Inc. et al
Filing
41
SUPPLEMENTAL ORDER TO ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE re 17 Clerk's Notice. Signed by Judge William Alsup on 3/17/16. (dl, COURT STAFF) (Filed on 3/18/2016)
1
LAST REVISED MARCH 17, 2016.
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9
United States District Court
For the Northern District of California
10
11
12
SUPPLEMENTAL ORDER TO
ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE
IN CIVIL CASES BEFORE JUDGE WILLIAM ALSUP
13
14
INTRODUCTION
15
16
17
18
The purpose of this supplemental order is to guide the parties on recurring practical
questions that arise prior to trial and to impose certain requirements for the conduct of the
case. Counsel must please read this order and follow it.
SERVICE OF THIS ORDER
19
20
21
22
23
24
25
26
27
28
1.
For cases originating in this Court, plaintiff(s) must serve this order and the order
setting the initial case management conference (along with any other required pleadings) on each
defendant. For cases removed from state court, the removing defendant(s) must serve this order
and the order setting the initial case management conference (along with any other required
pleadings) immediately on each and every party that has previously appeared or that appears
within thirty days after removal. Thereafter, any existing party to the action that brings a new
party into the action must immediately serve a copy of this order and the order setting the initial
case management conference (along with any other required pleadings) on the new party.
1
2
CASE MANAGEMENT CONFERENCE
2.
The parties will please address the standardized items in the court-wide format
3
for the joint case management statement. This is available at the Standing Order For all Judges
4
of the Northern District of California — Contents of Joint Case Management Statements.
5
Please file (electronically or manually depending on your case) at least SEVEN CALENDAR DAYS
6
prior to the case management conference. Each party shall be represented at the case
7
management conference by counsel prepared to address all such matters and with authority to
8
enter stipulations and to make admissions.
9
3.
In the joint statement for the initial case management conference, any law firm
United States District Court
For the Northern District of California
10
with more than fifty lawyers nationwide must submit a specific plan for how it intends, in this
11
case, to provide opportunities to junior lawyers (six years or fewer years out of law school) to
12
argue motions in court, to take depositions, and to examine witnesses at trial. Specific motions,
13
depositions, and junior lawyers must be identified. Please state whether it would be useful to
14
require client representatives to attend the upcoming case management conference where this
15
subject will be discussed.
16
4.
Pursuant to FRCP 26(d), Rule 34 requests may be served more than TWENTY-
17
ONE DAYS
18
served at the Rule 26(f) conference. As soon as a party has notice of this order, however, the
19
party shall take such affirmative steps as are necessary to preserve evidence related to the issues
20
presented by the action, including, without limitation, interdiction of any document-destruction
21
programs and any ongoing erasures of e-mails, voice mails, and other electronically-recorded
22
material.
ELECTRONIC CASE FILING — LODGING HARD COPIES WITH CHAMBERS
23
24
after service of the complaint on a party. The request is considered to have been
5.
In all “E-Filing” cases, in addition to filing papers electronically, the parties are
25
required to lodge for chambers one paper copy of each document that is filed electronically.
26
These printed copies shall be marked “Chambers Copy — Do Not File” and shall be in an
27
envelop clearly marked with the judge’s name and case number. It shall be delivered in
28
accordance with Civil Local Rule 5-1(e)(7). For the final pretrial conference, please follow
2
1
Guidelines for Trial and Final Pretrial Conference In Civil Jury Cases Before the Honorable
2
William Alsup.
SETTING MOTIONS FOR HEARING
3
4
6.
Counsel need not request a motion hearing date and may notice non-discovery
5
motions for any Thursday (excepting holidays) at 8:00 a.m. The Court sometimes rules on the
6
papers, issuing a written order and vacating the hearing. If a written request for oral argument is
7
filed before a ruling, stating that a lawyer of four or fewer years out of law school will conduct
8
the oral argument or at least the lion’s share, then the Court will hear oral argument, believing
9
that young lawyers need more opportunities for appearances than they usually receive.
United States District Court
For the Northern District of California
10
11
FORM OF SUBMISSIONS
7.
On summary judgment motions, joint statements of undisputed facts are not
12
required but are helpful if completely agreed upon. Please do not file separate statements of
13
“undisputed facts.”
14
8.
Reply declarations are disfavored. Opening declarations should set forth all facts
15
on points foreseeably relevant to the relief sought. Reply papers should not raise new points that
16
could have been addressed in the opening.
17
18
19
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.
10.
All submissions filed with the Court shall include on the cover sheet the date and
20
time of the hearing or conference. Counsel should include their facsimile transmission numbers
21
along with their telephone numbers on their papers.
DISCOVERY
22
23
11.
The following paragraphs on discovery provide counsel and the parties with
24
views and guidelines of Judge Alsup so that they can plan accordingly. For good cause, the
25
parties are invited to propose any modifications in their joint case management conference
26
statement. Unless and until modified, however, the following provisions shall supplement the
27
requirements of the Federal Rules of Civil Procedure and the local rules.
28
3
1
12.
In responding to requests for documents and materials under FRCP 34, all parties
2
shall affirmatively state in a written response the full extent to which they will produce materials
3
and shall, promptly after the production, confirm in writing that they have produced all such
4
materials so described that are locatable after a diligent search of all locations at which such
5
materials might plausibly exist. It is not sufficient to state that “responsive” materials will be or
6
have been produced. Such a response leaves open the distinct possibility that other responsive
7
materials have not been produced.
8
9
13.
In searching for responsive materials in connection with FRCP 34 requests or for
materials required to be disclosed under FRCP 26(a)(1), parties must search computerized files,
United States District Court
For the Northern District of California
10
e-mails, voice mails, work files, desk files, calendars and diaries, and any other locations and
11
sources if materials of the type to be produced might plausibly be expected to be found there.
12
The Court has found that certain basic information normally learned by counsel anyway should
13
be made available to the other side at the time of production, as if it were a response to a
14
standing interrogatory, as follows. At the time of the production, the responding party should
15
provide a written list to the requesting party setting forth in detail each specific source and
16
location searched. The list must also identify, by name and position, all persons conducting the
17
search and their areas of search responsibility. The producing party shall also provide a list
18
describing the specific source for each produced item as well as for each item withheld on a
19
ground of privilege, using the unique identifying numbers to specify documents or ranges.
20
Materials produced in discovery should bear unique identifying control numbers on each page.
21
14.
To the maximum extent feasible, all party files and records should be retained
22
and produced in their original form and sequence including file folders, and the originals should
23
remain available for inspection by any counsel on reasonable notice.
24
15.
Except for good cause, no item shall be received as case-in-chief evidence if the
25
proponent has failed to produce it in response to a reasonable and proper discovery request
26
covering the item, regardless of whether any discovery motion was made. A burden or
27
overbreadth or similar objection shall not be a valid reason for withholding requested materials
28
actually known to counsel or a party representative responsible for the conduct of the litigation.
4
1
16.
Privilege logs shall be promptly provided and must be sufficiently detailed and
2
informative to justify the privilege. See FRCP 26(b)(5). No generalized claims of privilege or
3
work-product protection shall be permitted. With respect to each communication for which a
4
claim of privilege or work product is made, the asserting party must at the time of assertion
5
identify:
6
7
(a)
communication;
8
9
United States District Court
For the Northern District of California
10
all persons making or receiving the privileged or protected
(b)
the steps taken to ensure the confidentiality of the communication,
including affirmation that no unauthorized persons have received the
communication;
11
(c)
the date of the communication; and
12
(d)
the subject matter of the communication.
13
Failure to furnish this information at the time of the assertion will be deemed a waiver of the
14
privilege or protection. The log should also indicate, as stated above, the location where the
15
document was found.
16
17.
Absent extraordinary circumstances, counsel shall consult in advance with
17
opposing counsel and unrepresented proposed deponents to schedule depositions at
18
mutually-convenient times and places. That some counsel may be unavailable shall not,
19
however, be grounds for deferring or postponing a deposition if another attorney from the
20
same firm or who represents a party with similar interests to that witness is able to attend.
21
Ordinarily, if one side desires a prompt deposition, the other side is expected to agree to dates
22
falling within thirty days of the request. On the other hand, rarely should one side expect the
23
other side to agree to a deposition sooner than seven days of the request.
24
18.
If any objection to a request for materials is overruled, and if the disputed request
25
was due and pending at the time of a deposition, the withholding party or counsel must, at the
26
request of any other party, re-produce all deponents under its control or represented by them for
27
further deposition examination as to any new materials produced in response that are germane
28
to that deponent and must bear the expense of doing so. A party objecting to producing
5
1
requested materials may not use the existence of its own objections as a basis for postponing
2
any deposition unless such party promptly meets and confers and then, if failing to reach an
3
agreement, seeks to bring a prompt motion for a protective order.
4
19.
Counsel and parties shall comply with FRCP 30(d)(1). Deposition objections
must be as to privilege or form only. Speaking objections are prohibited. Under no
6
circumstances should any counsel interject, “if you know,” or otherwise coach a deponent.
7
When a privilege is claimed, the witness should nevertheless answer questions relevant to the
8
existence, extent or waiver of the privilege, such as the date of a communication, who made the
9
statement, to whom and in whose presence the statement was made, other persons to whom the
10
United States District Court
For the Northern District of California
5
contents of the statement have been disclosed, and the general subject matter of the statement.
11
Private conferences between deponents and attorneys in the course of examination, including a
12
line of related questions, are improper and prohibited except for the sole purpose of determining
13
whether a privilege should be asserted.
14
20.
Deponents and their counsel must make a good-faith effort to prepare for
15
depositions and to refresh witness memories on important matters in the suit about which the
16
witness reasonably should be expected to have knowledge. Deponents who claim to lack
17
recollection during their deposition but who later claim at trial to have had their memories
18
refreshed in the interim, may be, among other things, impeached with their previous failures of
19
recollection during their depositions or be subject to preclusion. In preparing deponents,
20
defending counsel shall segregate and retain all materials used to refresh their memories and
21
shall provide them to examining counsel at the outset of the deposition.
22
21.
To the maximum extent feasible, deposition exhibits shall be numbered in a
23
simple manner that will allow the same numbering at trial. In discovery, counsel shall agree on
24
blocks of exhibit numbers to be used by the respective parties. Identical exhibits should not be
25
re-marked, but various versions of the same document, such as copies with hand notes added,
26
should be separately marked if used. See Local Rule 30-2(b)(3).
27
28
22.
FRCP 26(a)(2)(B) requires disclosure of all opinions, bases, reasons and other
information considered by an expert. Counsel shall preserve all drafts of expert reports
6
1
(partial or complete) and notes and other evidence of communications with experts (or with
2
any intermediaries between counsel and the experts) on the subject of this actual or potential
3
testimony, and shall instruct their experts and any intermediaries to do likewise. These
4
materials, however, need not be produced absent the showing required by FRCP 26(b)(3)
5
and (4).
6
23.
With respect to depositions under FRCP 30(b)(6), the fundamental purpose is to
7
allow a party to notice a deposition by subject matter, thereby requiring the respondent to
8
designate and to produce one or more organization witnesses knowledgeable on the designated
9
topic, a useful procedure when the roles of percipient witnesses controlled by an adverse party
United States District Court
For the Northern District of California
10
are unknown. In some cases, however, counsel routinely appear to notice
11
Rule 30(b)(6) depositions on numerous and wide-ranging topics, including even the basis for
12
“contentions” made by adverse parties. To obviate disputes and to give guidance, these
13
guidelines will be observed:
14
(a)
Without a prior order increasing the limit, a party may seek
15
Rule 30(b)(6) depositions from another party on up to a total of ten subject
16
matters (for the entire case) described with “reasonable particularity.” In framing
17
the subjects, it is normally improper to ask for Rule 30(b)(6) deponents to testify
18
concerning the entire basis of a claim or defense. On the other hand, examples of
19
proper subjects, which would require the respondent to find and to produce
20
knowledgeable deponents, include “the time line of research and development
21
leading to the invention in question” or “the efforts undertaken by defendant to
22
locate documents responsive to plaintiff’s document request.” The notice should
23
be directed at discovering percipient facts in the possession of the adverse party,
24
not at forcing a supposed “fact witness” to appear and defend the entire thesis of a
25
claim or defense. If a notice includes an overbroad topic, the overbroad topic
26
shall be unenforceable and may not be later replaced with a proper topic.
27
28
(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
7
1
deposition limit under FRCP 26 or under any case management order setting a
2
limit on the number of depositions. A corporate designee may, immediately after
3
being deposed on the stated subject, be deposed in his or her individual capacity.
4
Both such sessions shall count together as a single deposition (although they
5
should be separately transcribed). If two designees, to take another example, are
6
interrogated, each for one half-day or more, then they count as two depositions.
7
(c)
If an organization cannot reasonably locate a witness to testify
8
based on personal knowledge, there is no requirement under Rule 30(b)(6) for the
9
organization to “woodshed” or to “educate” an individual to testify on the subject.
United States District Court
For the Northern District of California
10
If the organization does not produce any such deponent, however, the
11
organization may not present case-in-chief evidence at trial or on summary
12
judgment on that topic from any witness it could have so designated.
13
(d)
Rule 30(b)(6) testimony never constitutes an irrebuttable judicial
14
admission. It will normally, however, be evidence admissible against the
15
organization producing the witness. The jury may, upon request, be instructed on
16
the significance of the testimony under Rule 30(b)(6).
17
24.
If a dispute arises during a deposition and involves either a persistent obstruction
18
of the deposition or a refusal to answer a material question on a ground other than privilege,
19
counsel may attempt to arrange a telephone conference with the Court through the courtroom
20
deputy, Dawn Logan, at 415-522-2020. Any such conference should be attended by the same
21
court reporter recording the deposition.
22
25.
All other requests for discovery relief must first be summarized in a letter no
23
longer than three pages from the party seeking relief after having met and conferred. Up to
24
twelve pages of attachments may be added. In the letter, counsel should identify themselves in
25
the signature block as “counsel for ___________.” The letter should be electronically-filed in
26
the official file along with the discovery-dispute requests and responses, as well as any timely
27
letter cancelling the hearing if settlement is reached. (Please note that with all communications
28
with the Court by e-filing, a hard copy must be lodged in the Court’s mail box in the Clerk’s
8
1
Office on the sixteenth floor in the time frame requested by local rule.) The Court will then
2
advise the parties whether a response, written motion or a telephone conference or court hearing
3
will be required. After the telephone conference or hearing, counsel should submit their
4
proposed order (agreed as to form) by e-filing it. This paragraph applies only to cases wherein
5
discovery is being supervised by the district judge rather than by a magistrate judge or special
6
master.
7
8
9
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
United States District Court
For the Northern District of California
10
used at trial or on summary judgment unless the delay in disclosure is “harmless” or unless
11
“substantial justification” for the delay is shown.
12
13
COMMUNICATIONS WITH CHAMBERS
27.
Please do not send any letters to the Court (except for requests for discovery
14
conferences, short cover letters for dismissals, orders agreed-upon as to form, or chambers
15
copies of electronically-filed documents). When corresponding with the Court by letter, always
16
identify whom you represent. Please do not fax or messenger anything to chambers without
17
advance permission specific to the item. Please e-file all submissions to the Court and make sure
18
a hard copy is lodged in the Court’s mail box in the Clerk’s Office on the sixteenth floor within
19
the time frame requested by local rule.
20
28.
You may contact the courtroom deputy, Dawn Logan (on the sixteenth floor in
21
the Clerk’s Office), at 415-522-2020 with appropriate inquiries. Except for the letters described
22
above, please do not attempt to make contact by telephone or any other ex parte means with
23
chambers staff.
CROSS REFERENCE TO OTHER STANDING ORDERS AND GUIDELINES
24
25
26
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
27
28
9
1
to class members. They are always available for review at the website for the United States
2
District Court for the Northern District of California at www.cand.uscourts.gov.
3
4
5
Dated: March 17, 2016.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
6
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?