Tessera, Inc. v. Advanced Micro Devices, Inc. et al

Filing 1301

ORDER APPOINTING THE HON. WAYNE D. BRAZIL (RET.) AS SPECIAL MASTER AND PROVIDING STANDARDS OF REVIEW. Signed by Judge Claudia Wilken on 12/18/2013. (ndr, COURT STAFF) (Filed on 12/18/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TESSERA, INC.,

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United States District Court
For the Northern District of California

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Plaintiff,
v.
ADVANCED MICRO DEVICES, INC., et
al.,
Defendant.
________________________________/
POWERTECH TECHNOLOGY INC.,

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No. C 05-4063 CW

No. C 10-945 CW

Plaintiff,
v.

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TESSERA, INC.,

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Defendant.
________________________________/

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POWERTECH TECHNOLOGY INC.,
Plaintiff,

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v.
TESSERA, INC.,
Defendant.

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________________________________/
TESSERA, INC.,

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No. C 12-692 CW

Plaintiff,

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No. C 11-6121 CW

v.
MOTOROLA, INC., et al.,

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Defendant.
________________________________/

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AND ALL RELATED COUNTERCLAIMS

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/

ORDER APPOINTING
THE HON. WAYNE D.
BRAZIL (RET.) AS
SPECIAL MASTER AND
PROVIDING
STANDARDS OF
REVIEW

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Under Federal Rule of Civil Procedure 53 (a) and (b), the
parties have had an opportunity to be heard on the issue of the

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appointment of a Special Master.

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consideration of fairness, the prevention of undue delay and the

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amount of judicial resources expended adjudicating discovery

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disputes in these cases constitute "exceptional circumstances"

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which require the appointment of a special master to oversee

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discovery and other pretrial matters.

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County of San Francisco, 2007 WL 3306526, *9 (N.D. Cal); National

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United States District Court
For the Northern District of California

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Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 560 (N.D.

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Cal. 1987).

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(b)(3), the Hon. Wayne D. Brazil (Ret.) has filed an affidavit

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disclosing whether there is any ground for disqualification under

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28 U.S.C. § 455 and either no ground for disqualification was

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disclosed or the parties, with the Court's approval, have waived

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the disqualification.

The Court has found that the

See Harmston v. City and

Pursuant to Federal Rule of Civil Procedure 53

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THEREFORE, IT IS ORDERED THAT, pursuant to Federal Rule of

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Civil Procedure 53, the Court appoints the Hon. Wayne D. Brazil

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(Ret.) as the Special Master for discovery and other pretrial

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matters in these cases.

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1. Scope of Duties.

The Special Master shall adjudicate all

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pretrial discovery disputes in these cases, including disputes

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arising during the course of depositions, and other non-

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dispositive pretrial disputes as requested.

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2. Scope of Authority.

The Special Master shall have all the

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authority provided in Federal Rule of Civil Procedure 53(c),

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including, but not limited to, the authority to set the date,

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time, and place for all hearings determined by the Special Master
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to be necessary; to direct the issuance of subpoenas; to make

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rulings on objections or otherwise resolve disputes arising during

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the course of depositions; to preside over hearings (whether

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telephonic or in-person); to take evidence in connection with

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discovery disputes and other referred disputes; to award fee

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allocations and non-contempt sanctions provided by Federal Rules

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of Civil Procedure 37 and 45; and to recommend contempt sanctions.

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Any motion pursuant to Federal Rule of Civil Procedure 37 or Civil

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Local Rule 37-1 for sanctions for violations of the Special

United States District Court
For the Northern District of California

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Master's orders shall be decided by the Special Master.

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3. Procedures for Briefing Submitted to Special Master.

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Special Master may resolve disputes presented orally, in person or

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by telephone, in a letter brief, or in formal motions.

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case of discovery disputes that are to be resolved by letter brief

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or written motions, all papers will be submitted directly to the

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Special Master by email with a courtesy copy by United States Mail

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or overnight courier, as directed by the Special Master.

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schedules will be determined by the Special Master.

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4. Discovery Disputes - Meet and Confer Required.

The

In the

Briefing

In the

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event of a discovery dispute, the parties shall first meet and

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confer in good faith to attempt to resolve the dispute.

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event the parties are not able to reach an agreement, the dispute

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will be resolved by the Special Master.

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shall, with notice to the other parties, contact the Special

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Master to determine the Special Master's availability for a

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telephone conference at a time when all parties are available.

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the event that the party seeking the relief wishes to submit a

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letter brief, then not less than forty-eight hours prior to the
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In the

The party seeking relief

In

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conference, the party seeking relief shall send a letter by email,

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not to exceed five pages, outlining the issues in the dispute and

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its position.

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conference, the party opposing may submit a letter by email, not

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to exceed five pages, outlining the party's reasons for its

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opposition.

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necessary upon conclusion of the telephone conference, the Special

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Master will order it.

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procedures for resolution of discovery disputes.

Not less than twenty-four hours prior to the

Should the Special Master find further briefing

This paragraph sets forth the default
However, the

United States District Court
For the Northern District of California

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Special Master may alter these procedures with respect to a

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particular dispute as deemed appropriate and necessary.

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5. Preservation of Record.

Pursuant to Federal Rule of Civil

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Procedure 53(b)(2)(C), the Special Master shall maintain files

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consisting of all documents submitted by the parties and any

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written orders, findings, and/or recommendations.

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issued by the Special Master shall be emailed to the parties.

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Such emailing shall fulfill the Special Master's duty to serve the

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order on the parties.

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Special Master shall be filed with the Court by the moving party

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via Electronic Case Filing (ECF) in a notice of ruling.

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records of the Special Master's activities other than written

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orders, findings, and/or recommendations shall be filed in

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accordance with paragraph 6.(a) herein.

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Any order

In addition, any order issued by the

Any

6. Action on Special Master's Orders, Reports, or
Recommendations.
(a) Pursuant to Federal Rule of Civil Procedure
53(b)(2)(D), the procedure described in paragraphs 6(b) and 6(c)

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herein shall govern any action on the Special Master's orders,

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reports and/or recommendations.

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(b) Time Limits for Review.

Any party wishing to file

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objections to the Special Master's orders, reports and/or

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recommendations must file such objection with the Court within

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fourteen days from the day the Special Master's order, report

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and/or recommendation is filed.

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orders will be subject to the same procedures as review of orders

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of a Magistrate Judge, except as otherwise provided herein.

United States District Court
For the Northern District of California

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Review of the Special Master's

See

Civil Local Rule 72-2.

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(c) Filing the Record for Review.

The party filing the

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objection shall submit with such objection any record necessary

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for the Court to review the Special Master's order, report, and/or

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recommendation, including any transcripts of proceedings before

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the Special Master and any documents submitted by the parties in

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connection with the Special Master's order, report, and/or

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recommendation.

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grounds for the Court to overrule the objection or deny the

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motion.

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Failure to provide the record shall constitute

(d) Standard of Review.

In Case Nos. 10-945 and 11-

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61212, the parties have stipulated that the standard of review

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applicable to pretrial matters decided by magistrate judges set

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out in 28 U.S.C. § 636(b)(1)(A) shall apply to the Special

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Master’s orders.

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have not filed any such stipulation, and so the standard set forth

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in Federal Rule of Civil Procedure 53(f) shall apply.

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In Case Nos. 05-4063 and 12-692, the parties

7. Ex Parte Communications.

To facilitate the fulfillment of

the duties hereunder, the Special Master may communicate ex parte
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to the Court to the extent that the Special Master deems necessary

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and appropriate.

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parte communications with a party but such communications shall be

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limited to administrative matters such as scheduling hearings,

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telephone calls or briefing, if such arrangements cannot be made

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in a timely manner by contacting the Special Master's

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administrative assistant.

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In addition, the Special Master may have ex

8. Compensation.

The Special Master shall be compensated at

the normal hourly rate for his services.

The cost of the Special

United States District Court
For the Northern District of California

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Master's compensation shall be allocated at the Special Master's

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discretion, including allocation of the cost of the Special

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Master's compensation to the non-prevailing party upon the

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resolution of a dispute.

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requested by the Special Master in its counsel’s trust account,

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which shall be billed against at the Special Master’s usual hourly

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rate, and replenished as requested.

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9. Diligence.

Each side will deposit a retainer if

Pursuant to Federal Rule of Civil Procedure

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53(b)(2), the Court hereby directs the Special Master to proceed

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with all reasonable diligence in performing these duties.

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10. Resources.

If requested, the parties shall provide any

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resources previously authorized to the Special Master, including

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law clerks made available by the parties and retained through

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JAMS.

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IT IS SO ORDERED.

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Dated:

12/18/2013

CLAUDIA WILKEN
United States District Judge
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