Ehrhardt v. EPublishing, Inc. et al

Filing 24

PRETRIAL ORDER. Signed by Magistrate Judge Jacqueline Scott Corley on 1/8/2021. Pretrial Conference set for 4/21/2022 at 2:00 p.m., in San Francisco, Courtroom E, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Jury Select ion set for 5/2/2022 at 8:30 a.m., in San Francisco, Courtroom E, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Jury Trial set for 5/2/2022 to 5/6/2022 at 8:30 a.m., in San Francisco, Courtroom E, 15th Floor before Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 1/8/2021)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
PATRICIA EHRHARDT,

7

Case No. 20-cv-06939-JSC

Plaintiff,
8
v.

PRETRIAL ORDER

9
EPUBLISHING, INC., et al.,

10

Defendants.

United States District Court
Northern District of California

11
Following the Initial Case Management Conference held on January 7, 2021, IT IS

12
13

ORDERED THAT:

14

I.

CASE MANAGEMENT SCHEDULE

15

Deadline to Move to Amend Pleadings:

May 7, 2021

16

Fact Discovery Cut-Off:

December 7, 2021

17

Expert Witness Disclosures:

December 21, 2021

18

Rebuttal Expert Witness Disclosures:

January 4, 2022

19

Expert Discovery Cutoff:

January 18, 2022

20

Deadline for Filing Dispositive Motions:

January 25, 2022

21

Deadline for Hearing Dispositive Motions:

March 1, 2022

22

The deadline for discovery-related motions is set forth in Northern District of California

23

Civil Local Rule 37.

24

A further Case Management Conference is scheduled for March 11, 2021 at 1:30 p.m. to

25

occur by Zoom videoconference. An updated Joint Case Management Conference Statement is

26

due March 4, 2021. The parties are referred to private mediation with a deadline to be determined

27

at the March 11 conference.

28

1

II.

A.

2
3

6
7
8
9
10

Jury trial will begin on May 2, 2022, at 8:30 a.m., in Courtroom E, 15th Floor, U.S.

District Court, 450 Golden Gate, San Francisco, California.
B.

4
5

TRIAL DATE

III.

The Court is expecting the length of the trial to not exceed 5-7 court days.

PRETRIAL CONFERENCE
A Final Pretrial Conference shall be held on April 21, 2022, at 2:00 p.m., in Courtroom E,

15th Floor. Lead trial counsel for each party shall attend.
A.

At least seven days prior to date of the Final Pretrial Conference the parties shall do

the following:
1.

In lieu of preparing a Joint Pretrial Conference Statement, the parties shall

United States District Court
Northern District of California

11

meet and confer in person, and then prepare and file a jointly signed Proposed Final Pretrial Order

12

that contains: (a) a brief description of the substance of claims and defenses which remain to be

13

decided; (b) a statement of all relief sought; (c) all stipulated facts; (d) a joint exhibit list in

14

numerical order, including a brief description of the exhibit and Bates numbers, a blank column

15

for when it will be offered into evidence, a blank column for when it may be received into

16

evidence, and a blank column for any limitations on its use; and (e) each party’s separate witness

17

list for its case-in-chief witnesses (including those appearing by deposition), including, for all such

18

witnesses (other than party plaintiffs or defendants), a short statement of the substance of his/her

19

testimony and, separately, what, if any, non-cumulative testimony the witness will offer. For each

20

witness, state an hour/minute time estimate for the direct examination (only). Items (d) and (e)

21

should be submitted as appendices to the proposed order. The proposed order should also state

22

which issues, if any, are for the Court to decide, rather than the jury.

23

2.

File a joint set of proposed instructions on substantive issues of law

24

arranged in a logical sequence. If undisputed, an instruction shall be identified as “Stipulated

25

Instruction No. ____ Re ___________,” with the blanks filled in as appropriate. If disputed, each

26

version of the instruction shall be inserted together, back to back, in their logical place in the

27

overall sequence. Each such disputed instruction shall be identified as, for example, “Disputed

28

Instruction No. ____ Re ____________ Offered by _________________,” with the blanks filled
2

1

in as appropriate. All disputed versions of the same basic instruction shall bear the same number.

2

Any modifications to a form instruction must be plainly identified. If a party does not have a

3

counter version and simply contends that no such instruction in any version should be given, then

4

that party should so state (and explain why) on a separate page inserted in lieu of an alternate

5

version. With respect to form preliminary instructions, general instructions, or concluding

6

instructions, please simply cite to the numbers of the requested instructions in the current edition

7

of the Ninth Circuit Model Jury Instructions. Other than citing the numbers, the parties shall not

8

include preliminary, general, or concluding instructions in the packet.
3.

9
10

instructions, if any, organized by instruction number.
4.

United States District Court
Northern District of California

11
12

File a separate memorandum of law in support of each party’s disputed

File a joint set of proposed voir dire questions supplemented as necessary

by separate requests.

13

5.

File trial briefs on any controlling issues of law.

14

6.

File proposed verdict forms, joint or separate.

15

7.

File and serve any objections to exhibits.

16

8.

File a joint simplified Statement of the Case to be read to the jury during

17

voir dire as part of the proposed jury instructions. Unless the case is extremely complex, this

18

statement should not exceed one page.

19

B.

Any motions in limine shall be submitted as follows: at least twenty (20) calendar

20

days before the conference, the moving party shall serve, but not file, the opening brief. At least

21

ten (10) calendar days before the conference, the responding party shall serve the opposition.

22

There will be no reply. When the oppositions are received, the moving party should collate the

23

motion and the opposition together, back-to-back, and then file the paired sets at least seven (7)

24

calendar days before the conference. Each motion should be presented in a separate memorandum

25

and properly identified, for example, “Plaintiff’s Motion in Limine No. 1 to Exclude . . . .” Each

26

party is limited to bringing five motions in limine. The parties are encouraged to stipulate where

27

possible, for example, as to the exclusion of witnesses from the courtroom. Each motion should

28

address a single, separate topic, and contain no more than seven pages of briefing per side.
3

C.

1

Hard-copy courtesy copies of the above documents shall be delivered by NOON

2

the day after filing. The Joint Proposed Final Pretrial Order, jury instructions, and verdict form

3

shall be submitted via e-mail as attachments to [e-mail]. The Court requests that

4

all hard-copy submissions be three-hole-punched.

5

IV.

6

PRETRIAL ARRANGEMENTS
A.

Should a daily transcript and/or real-time reporting be desired, the parties shall

7

make arrangements with Rick Duvall, Supervisor of the Court Reporting Services, at

8

[phone], at least ten (10) calendar days prior to the trial date.

9

B.

During trial, counsel may wish to use overhead projectors, laser-disk/computer

graphics, poster blow-ups, models, or specimens of devices. Equipment should be shared by all

11

United States District Court
Northern District of California

10

counsel to the maximum extent possible. The Court provides no equipment other than an easel.

12

The United States Marshal requires a court order to allow equipment into the courthouse. For

13

electronic equipment, parties should be prepared to maintain the equipment or have a technician

14

handy at all times. The parties shall tape extension cords to the carpet for safety. The parties may

15

work with the deputy clerk, Ada Means (415-522-2015), on all courtroom-layout issues.

16

SCHEDULING

17

Trial will be conducted from 8:30 a.m. to 2:30 or 3:00 p.m., depending on the availability

18

of witnesses, Monday through Friday. Counsel must arrive by 8:15 a.m., or earlier as needed, for

19

any matters to be heard out of the presence of the jury. The jury will be called at 8:30 a.m.

20
21

THE JURY
In civil cases, there are no alternate jurors and the jury is selected as follows:

22

Eighteen to twenty jurors are called to fill the jury box and the row in front of the bar, and are

23

given numbers (1 through 20). The remaining potential jurors will be seated in the public benches.

24

Hardship excuses will usually be considered at this point. The Court will then have each juror

25

orally answer a set of written questions (attached to this Order as Exhibit A) and will itself ask

26

questions of those in the box and in the front of the bar. Counsel may then conduct a limited voir

27

dire. Challenges for cause will then be addressed out of the presence of the potential jurors. The

28

Court will consider whether to fill in the seats of the stricken jurors. If so, questions will be asked
4

1

of the additional jurors and cause motions as to them will be considered. After a short recess, each

2

side may exercise its allotment of peremptory challenges out of the presence of the potential

3

jurors. The eight (or such other size as will constitute the jury) surviving the challenge process

4

with the lowest numbers become the final jury. For example, if the plaintiff strikes 1, 5, and 7 and

5

the defendant strikes 2, 4, and 9, then 3, 6, 8, 10, 11, 12, 13, and 14 become the final jury. If more

6

(or fewer) than eight jurors are to be seated, then the starting number will be adjusted. So too if

7

more than a total of six peremptories are allowed. Once the jury selection is completed, the jurors’

8

names will be read again and they will be seated in the jury box and sworn. The Court may alter

9

this procedure in its discretion and after consultation with the parties.
WITNESSES

10

United States District Court
Northern District of California

11

At the close of each trial day, all counsel shall exchange a list of witnesses for the

12

next two full court days and the exhibits that will be used during direct examination (other than

13

for impeachment of an adverse witness). Within 24 hours of such notice, all other counsel shall

14

provide any objections to such exhibits and shall provide a list of all exhibits to be used with the

15

same witness on cross-examination (other than for impeachment). The first notice shall be

16

exchanged prior to the first day of trial. All such notices shall be provided in writing.
EXHIBITS

17
18

A.

Prior to the Final Pretrial Conference, counsel must meet and confer in person to

19

consider all exhibit numbers and objections and to eliminate duplicate exhibits and confusion over

20

the precise exhibit.

21

B.

Use numbers only, not letters, for exhibits, preferably the same numbers as were

22

used in depositions. Blocks of numbers should be assigned to fit the need of the case (e.g.,

23

Plaintiff has 1 to 100, Defendant A has 101 to 200, Defendant B has 201 to 300, etc.). A single

24

exhibit should be marked only once. If the plaintiff has marked an exhibit, then the defendant

25

should not re-mark the exact document with another number. Different versions of the same

26

document, e.g., a copy with additional handwriting, must be treated as different exhibits with

27

different numbers. To avoid any party claiming “ownership” of an exhibit, all exhibits shall be

28

marked and referred to as “Trial Exhibit No. _____,” not as “Plaintiff’s Exhibit” or “Defendant’s
5

1

Exhibit.”

2

C.

The exhibit tag shall be in the following form:

3
4
5
6
7
8
9
10
Counsel preferably will make the tag up in a color that will stand out (yet still allow for
11

United States District Court
Northern District of California

photocopying), but that is not essential. Place the tag on or near the lower right-hand corner or, if a
12
photograph, on the back. Counsel should fill in the tag but leave the last two spaces blank. The
13
parties must jointly prepare a single set of all trial exhibits that will be the official record set to be
14
used with the witnesses and on appeal. Each exhibit must be tagged, three-hole-punched, separated
15
with a label divider identifying the exhibit number, and placed in 3-ring binders. Spine labels
16
should indicate the numbers of the exhibits that are in the binders. Each set of exhibit binders
17

should be marked as “Original.” Deposit the exhibits with the deputy clerk seven (7) days before

18
the Pretrial Conference.
19
D.

Counsel must consult with each other and with the deputy clerk at the end of each

20
trial day and compare notes as to which exhibits are in evidence and any limitations thereon. If
21

there are any differences, counsel should bring them promptly to the Court’s attention.

22
E.

In addition to the official record exhibits, three sets of bench binders containing

23
copies of the exhibits must be provided to the Court seven (7) days before the Pretrial Conference,
24

one should be marked as “Chambers Copies”, and the other two as “Clerk’s Copies.” Each exhibit

25
must be separated with a label divider identifying the exhibit number. (An exhibit tag is
26
unnecessary for the bench set.) Spine labels should indicate the numbers of the exhibits that are in
27
the binders.
28
6

1
2
3

F.

Before the closing arguments, counsel must confer with the deputy clerk to make

sure the exhibits in evidence are in good order.
G.

Exhibit notebooks for the jury will not be permitted without prior permission from

4

the Court. Publication must be by poster blow-up, overhead projection, or such other method as is

5

allowed in the circumstances. It is permissible to highlight, circle or underscore in the

6

enlargements as long as it is clear that it was not on the original.
CHARGING CONFERENCE

7
8

As the trial progresses and the evidence is heard, the Court will fashion a comprehensive

9

set of jury instructions to cover all issues actually being tried. Prior to the close of the evidence,
the Court will provide a draft final charge to the parties. After a reasonable period for review, one

11

United States District Court
Northern District of California

10

or more charging conferences will be held at which each party may object to any passage, ask for

12

modifications, or ask for additions. Any instruction request must be renewed specifically at the

13

conference or it will be deemed waived, whether or not it was requested prior to trial. If, however,

14

a party still wishes to request an omitted instruction after reviewing the Court’s draft, then it must

15

affirmatively re-request it at the charging conference in order to give the Court a fair opportunity

16

to correct any error. Otherwise, as stated, the request will be deemed abandoned or waived.

17
18
19
20

IT IS SO ORDERED.
Dated: January 8, 2021
______________________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

21
22
23
24
25
26
27
28
7

EXHIBIT A

1

BACKGROUND

2
3
4
5
6

HAVE EACH OF THE 20 PROSPECTIVE JURORS ANSWER ALOUD THE
GENERAL BACKGROUND QUESTIONS ON THE SHEET THAT HAS BEEN HANDED
OUT.
1. Please state your name:
2. Please state the city in which you live:

7
8
9
10

a. How long have you lived there?
b. Where else have you lived in the past 5 years?
3. What is your current occupation?

United States District Court
Northern District of California

11

a. How long have you been so employed?

12

b. What are your previous occupations, if any?

13

c. Have you or any member of your family been employed by a law firm?

14
4. Please give us the following information about your family:
15
16
17

a. Are you married?
1. If so, what is your spouse’s current occupation and by whom is your
spouse employed?

18
b. Do you have any children?
19
20
21

If so:
1. How many?
2. What ages?
3. What are their occupations, if any?

22
5. Are there any other adults living in your household?
23
24

a. If so, how are they related to you, and what is their age and occupation?

25
26
27
28
8