Waymo LLC v. Uber Technologies, Inc. et al

Filing 563

CASE MANAGEMENT SCHEDULING ORDER: Final Pretrial Conference set for 9/27/2017 02:00 PM in Courtroom 8, 19th Floor, San Francisco. Jury Trial set for 10/10/2017 07:30 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Amended Pleadings due by 6/22/2017. Discovery due by 8/24/2017. This matter has been referred to Magistrate Judge Elizabeth Laporte for mediation/settlement and Magistrate Judge Jacqueline Scott Corley for discovery. Signed by Judge William Alsup on 6/7/2017. (whalc2, COURT STAFF) (Filed on 6/7/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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WAYMO LLC,
Plaintiff,

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CASE MANAGEMENT ORDER,
REFERENCE TO MAGISTRATE
JUDGE FOR MEDIATION/
SETTLEMENT, AND FURTHER
REFERENCE TO MAGISTRATE
JUDGE FOR DISCOVERY
SUPERVISION

v.

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No. C 17-00939 WHA

UBER TECHNOLOGIES, INC.,
OTTOMOTTO LLC, and OTTO
TRUCKING LLC,
Defendants.

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After a case management conference, the Court enters the following order pursuant to

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Rule 16 of the Federal Rules of Civil Procedure (“FRCP”) and Civil Local Rule 16-10:

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1.

All initial disclosures under FRCP 26 must be completed by JUNE 21, 2017, on pain
of preclusion, including full and faithful compliance with FRCP 26(a)(1)(A)(iii).

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2.

Leave to add any new parties or amend pleadings must be sought by JUNE 22, 2017.

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3.

The non-expert discovery cut-off date shall be AUGUST 24, 2017.

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4.

The deadline for waiving privilege has already passed.

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5.

Subject to the exception in the next paragraph, the last date for designation of expert

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testimony and disclosure of full expert reports under FRCP 26(a)(2) as to any issue on

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which a party has the burden of proof (“opening reports”) shall be AUGUST 24, 2017.

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Within FOURTEEN CALENDAR DAYS of said deadline, all other parties must disclose any

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expert reports on the same issue (“opposition reports”). Within SEVEN CALENDAR

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DAYS

thereafter, the party with the burden of proof must disclose any reply reports

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rebutting specific material in opposition reports. Reply reports must be limited to true

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rebuttal and should be very brief. They should not add new material that should have

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been placed in the opening report and the reply material will ordinarily be reserved for

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the rebuttal or sur-rebuttal phase of the trial. If the party with the burden of proof

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neglects to make a timely disclosure, the other side, if it wishes to put in expert

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evidence on the same issue anyway, must disclose its expert report within the fourteen-

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day period. In that event, the party with the burden of proof on the issue may then file

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a reply expert report within the seven-day period, subject to possible exclusion for

United States District Court
For the Northern District of California

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“sandbagging” and, at all events, any such reply material may be presented at trial only

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after, if at all, the other side actually presents expert testimony to which the reply is

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responsive. The cutoff for all expert discovery shall be FOURTEEN CALENDAR DAYS

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after the deadline for reply reports. In aid of preparing an opposition or reply report, a

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responding party may depose the adverse expert sufficiently before the deadline for

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the opposition or reply report so as to use the testimony in preparing the response.

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Experts must make themselves readily available for such depositions. Alternatively,

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the responding party can elect to depose the expert later in the expert-discovery period.

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An expert, however, may be deposed only once unless the expert is used for different

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opening and/or opposition reports, in which case the expert may be deposed

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independently on the subject matter of each report. At least 21 CALENDAR DAYS before

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the due date for opening reports, each party shall serve a list of issues on which it will

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offer any expert testimony in its case-in-chief (including from non-retained experts).

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This is so that all parties will be timely able to obtain counter-experts on the listed

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issues and to facilitate the timely completeness of all expert reports. Failure to so

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disclose may result in preclusion.

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6.

As to damages studies, the cut-off date for past damages will be as of the expert report

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(or such earlier date as the expert may select). In addition, the experts may try to

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project future damages (i.e., after the cut-off date) if the substantive standards for
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future damages can be met. With timely leave of Court or by written stipulation, the

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experts may update their reports (with supplemental reports) to a date closer to the time

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of trial.

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7.

At trial, the direct testimony of experts will be limited to the matters disclosed in their
reports. Omitted material may not ordinarily be added on direct examination.

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This means the reports must be complete and sufficiently detailed. Illustrative

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animations, diagrams, charts and models may be used on direct examination only if

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they were part of the expert’s report, with the exception of simple drawings and

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tabulations that plainly illustrate what is already in the report, which can be drawn by

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United States District Court
For the Northern District of California

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the witness at trial or otherwise shown to the jury. If cross-examination fairly opens

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the door, however, an expert may go beyond the written report on cross-examination

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and/or redirect examination. By written stipulation, of course, all sides may relax these

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requirements. For trial, an expert must learn and testify to the full amount of billing

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and unbilled time by him or his firm on the engagement.

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8.

To head off a recurring problem, experts lacking percipient knowledge should avoid

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vouching for the credibility of witnesses, i.e., whose version of the facts in dispute is

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correct. This means that they may not, for example, testify that based upon a review of

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fact depositions and other material supplied by counsel, a police officer did (or did not)

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violate standards. Rather, the expert should be asked for his or her opinion based —

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explicitly — upon an assumed fact scenario. This will make clear that the witness is

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not attempting to make credibility and fact findings and thereby to invade the province

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of the jury. Of course, a qualified expert can testify to relevant customs, usages,

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practices, recognized standards of conduct, and other specialized matters beyond the

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ken of a lay jury. This subject is addressed further in the trial guidelines referenced in

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paragraph 19 below.

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9.

No summary judgment or further Rule 12 motion may be filed without advance Court

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approval. Such approval may be sought by a three-page précis letter explaining the

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basis and need for the motion.
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10.

The parties shall please meet and confer and agree on a deadline by which plaintiff

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must make a final determination regarding the exact number and lineup of trade secrets

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to be tried. The final lineup should consist of less than ten trade secrets, and the

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deadline should fall on a date in August 2017 that will permit sufficient preparation

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time for opening expert reports. The parties shall please file a statement with a jointly

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proposed date for this deadline by JUNE 16, 2017.

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11.

The FINAL PRETRIAL CONFERENCE shall be on SEPTEMBER 27, 2017, at 2:00 P.M.

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Although the Court encourages argument and participation by younger attorneys, lead

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trial counsel must attend the final pretrial conference. For the form of submissions for

United States District Court
For the Northern District of California

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the final pretrial conference and trial, please see paragraph 19 below.
12.

A JURY TRIAL shall begin on OCTOBER 10, 2017, at 7:30 A.M., in Courtroom 8,

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19th Floor, 450 Golden Gate Avenue, San Francisco, California, 94102. Although the

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Court and the parties had previously discussed an October 2 trial date, this order

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continues that date to October 10 to accommodate Attorney Arturo González’s two to

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three-week trial scheduled to start on September 12 in state court. The Court thanks

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Attorneys Sylvia Rivera and Esther Chang for the reminder about this scheduling

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conflict and believes this accommodation fully follows through on the Court’s previous

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promise (see Dkt. No. 63 at 17:6–17:17). Beyond this, there are no more promises that

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any other dates will be moved. The trial schedule and time limits shall be set at the

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final pretrial conference. Although almost all trials proceed on the date scheduled, it

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may be necessary on occasion for a case to trail, meaning the trial may commence a

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few days or even a few weeks after the date stated above, due to calendar congestion

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and the need to give priority to criminal trials. Counsel and the parties should plan

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accordingly, including advising witnesses.

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13.

Counsel may not stipulate around the foregoing dates without Court approval.

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14.

The Court no longer conducts a claim construction hearing about mid-way through the

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fact-discovery period. This timing has the distinct disadvantage of requiring abstract

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rulings without the benefit of a more complete record, thus increasing the risk of a
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claim construction error and a re-trial (and, for that matter, subsequent second appeal).

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Instead of a stand-alone claim construction hearing, claim construction will now be

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done on summary judgment (if allowed) or at trial in settling the jury instructions.

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In this way, the Court will better understand the as-applied meaning of terms advanced

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by counsel as claim constructions.

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15.

The Court realizes that counsel would prefer to go into a trial knowing how the jury

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will be instructed as to all claims terms, but even under other case management

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approaches, that preference is rarely attainable. Postponing claim construction until

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after the judge has the benefit of the trial evidence or at least the benefit of the

United States District Court
For the Northern District of California

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summary judgment record is more likely to avoid a mistake in claim construction.

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Moreover, it is customary in trials of all types for counsel and experts to learn only at

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the instructions-settling conference near the end of the evidence what instructions will

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or will not be given. As is routinely done in non-patent trials, patent trial counsel

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should adjust their trial plan and their expert presentations to account for the risk that

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their favored claim constructions will be rejected or modified in the final instructions.

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16.

The infringement and invalidity procedures of our Patent Local Rules must still be

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followed, including Rules 3-1 to 3-6, and 4-1 to 4-4 (except that the Court prefers six

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terms rather than ten). Claim construction briefs must still be filed under the schedule

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provided by Rule 4-5 but on summary judgment (if allowed), the pertinent parts of the

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claim construction briefs shall be extracted out and/or cited as relevant. As stated

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above, the claim construction hearing under Rule 4-6 shall occur along with summary

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judgment (if allowed) or at trial.

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17.

While the Court encourages the parties to engage in settlement discussions, please do

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not ask for any extensions on the ground of settlement discussions or on the ground that

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the parties experienced delays in scheduling settlement conferences, mediation or ene.

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The parties should proceed to prepare their cases for trial. No continuance (even if

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stipulated) shall be granted on the ground of incomplete preparation without competent

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and detailed declarations setting forth good cause.
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18.

To avoid any misunderstanding with respect to the final pretrial conference and trial,

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the Court wishes to emphasize that all filings and appearances must be made — on pain

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of dismissal, default or other sanction — unless and until a dismissal fully resolving the

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case is received. It will not be enough to inform the clerk that a settlement in principle

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has been reached or to lodge a partially executed settlement agreement or to lodge

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a fully executed agreement (or dismissal) that resolves less than the entire case.

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Where, however, a fully-executed settlement agreement clearly and fully disposing of

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the entire case is lodged reasonably in advance of the pretrial conference or trial and

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only a ministerial act remains, the Court will arrange a telephone conference to work

United States District Court
For the Northern District of California

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out an alternate procedure pending a formal dismissal.
19.

If you have not already done so, please read and follow the “Supplemental Order to

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Order Setting Initial Case Management Conference in Civil Cases Before Judge

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William Alsup” and other orders issued by the Clerk’s office when this action was

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commenced. Among other things, the supplemental order explains when submissions

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are to go to the Clerk’s Office (the general rule) versus when submissions may go

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directly to chambers (rarely). With respect to the final pretrial conference and trial,

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please read and follow the “Guidelines For Trial and Final Pretrial Conference in Civil

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Jury Cases Before The Honorable William Alsup.” All orders and guidelines

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referenced in the paragraph are available on the district court’s website at

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http://www.cand.uscourts.gov. The website also includes other guidelines for

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attorney’s fees motions and the necessary form of attorney time records for cases

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before Judge Alsup. If you do not have access to the Internet, you may contact Deputy

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Clerk Dawn Logan at [phone] to learn how to pick up a hard copy.

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20.

This matter has already been REFERRED to MAGISTRATE JUDGE ELIZABETH

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LAPORTE for MEDIATION/SETTLEMENT, the Court believing that such a conference

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would be more effective in settling the present case than any other avenue.

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21.

This case has already been REFERRED to MAGISTRATE JUDGE JACQUELINE SCOTT
CORLEY for resolution of all discovery motions. It is the responsibility of counsel
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to present discovery issues to Judge Corley in time to be ready for trial on

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OCTOBER 10, 2017.

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22.

All pretrial disclosures under FRCP 26(a)(3) and objections required by FRCP 26(a)(3)
must be made on the schedule established by said rule.

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IT IS SO ORDERED.

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Dated: June 7, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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United States District Court
For the Northern District of California

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