Pecover et al v. Electronic Arts Inc.

Filing 357


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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 GEOFFREY PECOVER; and ANDREW OWENS, on behalf of themselves and all others similarly situated, Plaintiffs, 7 8 9 United States District Court For the Northern District of California 10 11 12 v. ELECTRONIC ARTS, INC., a Delaware Corporation, No. C 08-2820 CW ORDER CONCERNING DUTIES AND INSTRUCTIONS FOR COURT-APPOINTED TECHNICAL ADVISOR AND MODIFYING THE CASE SCHEDULE Defendant. ________________________________/ The Court hereby notifies the parties of its intent to 13 appoint Dr. Tim Bresnahan as the Court’s Technical Advisor 14 regarding economic issues in this antitrust case, if Dr. Bresnahan 15 accepts the appointment. 16 Bresnahan regarding his duties and role as Technical Advisor. 17 18 The Court further instructs Dr. BACKGROUND At the hearing on January 19, 2012, this Court directed the 19 parties to meet and confer regarding the advisability of having a 20 Court-appointed expert who would advise the Court on the economic 21 issues in this case but would not testify to the jury. 22 instructed the parties to consider candidates for such an 23 appointment, the subject matter on which the expert would assist 24 and what role the expert might perform. 25 might require expert advice to assist it in resolving the parties’ 26 competing expert testimony to rule on Defendant Electronic Arts, 27 Inc.’s anticipated motion to de-certify the class prior to its 28 summary judgment motion. The Court The Court noted that it 1 On March 12, 2012, the parties filed a joint letter with the 2 Court. 3 three of whom were selected by Defendant and two of whom were 4 selected by Plaintiffs. 5 one of Defendant’s selections, Dr. Steven Salop. 6 turn recognized that any of the five candidates, including the two 7 proposed by Plaintiffs, were “highly qualified” and “would be a 8 valuable resource for the Court.” 9 Defendant believes that appointment of a neutral economist is In the letter, the parties identified five candidates, Plaintiffs stated that they would accept Defendant in Joint Letter at 5. While United States District Court For the Northern District of California 10 “appropriate and reasonable,” id. at 3, Plaintiffs argue that the 11 Court will be able to address adequately the issues presented in 12 this case without expert assistance. 13 14 LEGAL STANDARD “When outside technical expertise can be helpful to a 15 district court, the court may appoint a technical advisor.” 16 v. Enforma Natural Prods., 362 F.3d 1204, 1213 (9th Cir. 2004) 17 (citing Ass’n of Mexican-American Educators v. California, 231 18 F.3d 572, 590 (9th Cir. 2000) (en banc)). 19 a tutor who aids the court in understanding the ‘jargon and 20 theory’ relevant to the technical aspects of the evidence.” 21 (quoting Reilly v. United States, 863 F.2d 149, 158 (1st Cir. 22 1988)). 23 on, and help the court understand relevant scientific evidence.” 24 Id. (citing Ass’n of Mexican-American Educators, 231 F.3d at 590). 25 FTC “A technical advisor is Id. “The role of a technical advisor is to organize, advise As an advisor to the Court, the role played by a technical 26 advisor is distinct from that of an expert witness. 27 advisor may not assume the role of an expert witness by supplying 28 new evidence; nor may an advisor usurp the role of the judge by 2 “A technical 1 making findings of fact or conclusions of law.” 2 Records, Inc. v. Napster, Inc., 284 F.3d 1091, 1097 (9th Cir. 3 2002); Reilly, 863 F.2d at 155). 4 “[t]echnical advisors, acting as such, are not subject to the 5 provisions of Rule 706, which govern court-appointed expert 6 witnesses.” 7 Id. (citing A&M Because of this distinction, Id. While the Ninth Circuit does “not require strict adherence to any specific procedures regarding technical advisors,” it has 9 endorsed certain “procedural steps . . . to assure the parties 10 United States District Court For the Northern District of California 8 that the court is proceeding openly and fairly appointing such 11 individuals.” 12 13 14 15 16 17 18 FTC, 362 F.3d at 1214-1215. These steps are to (1) utilize a fair and open procedure for appointing a neutral technical advisor; (2) address any allegations of bias, partiality, or lack of qualification; (3) clearly define and limit the technical advisor’s duties; (4) make clear to the technical advisor that any advice he or she gives to the court cannot be based on any extra-record information; and (5) make explicit, either through an expert’s report or a record of ex parte communications, the nature and content of the technical advisor’s advice. 19 Id. (citing Ass’n of Mexican-American Educators, 231 F.3d at 20 611-14 (Tashima, J., dissenting)). 21 22 DISCUSSION Based on the complexity of the economic issues and theories 23 presented, especially related to injury and damages, the Court 24 finds that outside technical advice would be helpful in proceeding 25 in this case. 26 27 28 3 1 I. 2 3 Identity of the Technical Advisor If he chooses to accept the position, the Court selects Dr. Tim Bresnahan of Stanford University as its Technical Advisor. 4 Plaintiffs proposed Dr. Bresnahan, and Defendant indicated 5 that Dr. Bresnahan was highly qualified to serve in this capacity. 6 The parties have already had the opportunity to consider and raise 7 disputes regarding potential biases or conflicts and have not 8 identified any such disputes. 9 In order to accept this appointment, Dr. Bresnahan must give United States District Court For the Northern District of California 10 his consent to serve as the Court-appointed expert in this case, 11 and must acknowledge his responsibility to discharge his duties in 12 accordance with the instructions set forth in this order, by 13 signing in the designated space below and returning the signed 14 original to the Court in the enclosed envelope. 15 II. Payment of the Technical Advisor 16 Plaintiffs state that it would be “almost cost-prohibitive” 17 if they were required to split the costs of paying for a neutral 18 expert with Defendant. 19 to the Court’s discretion whether the neutral’s fees . . . should 20 be paid equally by the parties or entirely by EA.” 21 While the parties do not provide the Court with an estimate of Dr. 22 Bresnahan’s rates, Plaintiffs state that the hourly rates charged 23 by the various economists proposed by the parties range from $650 24 to $1,250 per hour. 25 rates charged by their proposed economists, including Dr. 26 Bresnahan, “fall at the lower end of this spectrum.” 27 n.20. Joint Letter at 9. Id. at 9. Defendant “leaves it Id. at 5 n.9. Plaintiffs also state that the 28 4 Id. at 9 1 The Court orders that Defendant shall pay for ninety percent 2 of Dr. Bresnahan’s fees and expenses, and Plaintiffs will share 3 equally the other ten percent. 4 retainer totaling $30,000 in one of its counsel’s trust account; 5 the retainer shall be apportioned in the same manner as the fees 6 and expenses. 7 III. Duties of the Technical Advisor 8 9 The parties will deposit a As the Court’s Technical Advisor, Dr. Bresnahan shall serve as a neutral, independent advisor to the Court on the economics at United States District Court For the Northern District of California 10 issue in this litigation. 11 on, and help the Court understand relevant economic evidence and 12 theories presented by the parties and their experts at various 13 stages of this litigation, including class certification, summary 14 judgment and trial. 15 IV. 16 His duties shall be to organize, advise Materials to be Provided to the Technical Advisor Within five days of the date of the order appointing him as 17 the Technical Advisor, the parties shall provide Dr. Bresnahan 18 with copies of the following materials, both in electronic format 19 and in organized binders that are labeled and tabbed: 20 1. The operative complaint; 21 2. The operative answer; 22 3. The Court’s Order of December 21, 2010 granting in part 23 24 25 and denying in part Plaintiffs’ motion for class certification; 4. The expert reports and declarations of the parties’ economists; and 26 5. 27 economists. Complete transcripts for the depositions of the parties’ If the transcripts are not yet available, the parties 28 5 1 shall provide them to Dr. Bresnahan within five days of the date 2 on which the parties receive them. 3 The parties will provide additional materials to Dr. 4 Bresnahan during the course of the litigation. 5 will include the following: 6 1. Those materials The parties’ briefs and supporting materials filed in 7 relation to Defendant’s motion to de-certify the class, 8 Defendant’s motion for summary judgment and the parties’ Daubert 9 motions, on the date they are filed with the Court; and United States District Court For the Northern District of California 10 11 2. The parties’ pretrial documents, on the date they are filed with the Court. 12 The parties shall not send Dr. Bresnahan any additional 13 material that is not already in the record, unless by stipulation 14 or Court order. 15 V. 16 17 18 Instructions to the Technical Advisor 1. Any advice provided to the Court by Dr. Bresnahan will not be based on any extra-record information. 2. To the extent that the Court may ask Dr. Bresnahan to 19 prepare formal written reports providing technical advice 20 concerning the case, copies of the formal written reports prepared 21 by Dr. Bresnahan shall be provided to the parties and filed in the 22 docket of this case. 23 have informal verbal communications with Dr. Bresnahan which are 24 not included in any formal written report. 25 3. However, the Court reserves the right to Dr. Bresnahan shall provide formal written reports on 26 any challenges under Daubert v. Merrell Dow Pharmaceuticals, 509 27 U.S. 579 (1993), filed by either party, any motion to de-certify 28 the class, motions for summary judgment, and any other matters on 6 1 which the Court may request a written report. 2 materials provided to him, Dr. Bresnahan will prepare an expert 3 report, containing a statement of his evaluations and the reasons 4 for his evaluations. 5 of Dr. Bresnahan’s evaluations of the expert reports and 6 supporting evidence submitted by the parties. 7 look to other such reports for guidance as to formatting and 8 standard content, no specific format is required. 9 After reviewing the The Court is looking for a basic statement Although he may Dr. Bresnahan shall attend the motion hearings in the 4. United States District Court For the Northern District of California 10 case. 11 is scheduled to commence on October 29, 2012, if the Court 12 requests that he do so. 13 14 15 He shall attend relevant portions of the ten-day trial that Dr. Bresnahan may review any pleadings, motions or 5. documents submitted to the Court. 6. As a technical advisor, Dr. Bresnahan will make no 16 written findings of fact and will not supply any evidence to the 17 Court. 18 witnesses” under Federal Rule of Evidence 706. 19 provisions in Rule 706 for depositions and questioning of expert 20 witnesses will be inapplicable to Dr. Bresnahan. 21 Mexican-American Educators, 231 F.3d at 591 (“Rule 706 applies to 22 court-appointed expert witnesses, but not to technical advisors 23 . . . ”). 24 25 26 27 7. Thus, Dr. Bresnahan will be outside the purview of “expert As such, the See Ass’n of Dr. Bresnahan will have no contact with any of the parties or their counsel except for billing purposes. 8. Dr. Bresnahan shall bill at his usual hourly rate. shall issue statements to the parties and draw from the trust 28 7 He 1 account every fifteen (15) days for his performance of the 2 appointment. 3 9. Dr. Bresnahan shall report to the Court on a periodic 4 basis, every sixty (60) days, regarding the state of his fees and 5 expenses and make a recommendation to the Court as to whether the 6 trust account needs additional deposits from the parties as the 7 case progresses. 8 Bresnahan are referred to Magistrate Judge Cousins. 9 VI. United States District Court For the Northern District of California 10 All matters pertaining to the fees of Mr. Case Schedule If Defendant files a motion to de-certify the class, it shall 11 do so at the same time that it files its motion for summary 12 judgment; both motions shall be contained in a single brief. 13 Daubert motions shall also be contained within the parties’ briefs 14 on their dispositive motions. 15 Any To allow the Technical Advisor to review the documents filed 16 by the parties and file a written report advising the Court on 17 both motions and to maintain adequate time between the dispositive 18 motion hearing and the trial date, the Court finds good cause to 19 modify the case schedule as follows: 20 Deadline for Plaintiffs to file their motion for summary judgment, if any, and their Daubert motion, to be contained in a single brief of twenty-five pages or less. 05/31/2012 Deadline for Defendant to file its cross-motion for summary judgment, its motion to decertify the class, its Daubert motion, and its opposition to Plaintiffs’ motion for summary judgment, to be contained in a single brief of thirty-five pages or less. 06/14/2012 Deadline for Plaintiffs to file their reply in support of their motion for summary judgment, if any, and Daubert motion, and their opposition to Defendant’s motions for summary judgment and to decertify the class, to be 06/21/2012 21 22 23 24 25 26 27 28 8 1 2 Deadline for Defendant to file its reply in support of its motion for summary judgment, its motion to de-certify the class and its Daubert motion, to be contained in a single brief of fifteen pages or less. 06/28/2012 Due date for formal written report of Technical Advisor addressing the parties’ Daubert challenges, the parties’ cross-motions for summary judgment, and Defendant’s motion to de-certify the class 7/12/2012 Hearing on all motions and further case management conference 7/26/2012 at 2:00 p.m. 10/16/2012 at 2:00 p.m. 14 Final Pretrial Conference All pretrial deadlines are advanced one week before the deadlines contained in the Court’s Order for Pretrial Preparation. All pretrial documents, including motions in limine, shall be filed one week earlier than the dates provided in the Court’s Order for Pretrial Preparation, to allow the Technical Advisor to review them and advise the Court thereon. 15 Ten-day Jury Trial 10/29/2012 at 8:30 a.m. 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California contained in a single brief of twenty-five pages or less. 11 12 13 16 17 IT IS SO ORDERED. 18 19 Dated: March 23, 2012 CLAUDIA WILKEN United States District Judge 20 21 CONSENT 22 I consent to serve as the Court’s Technical Advisor in 23 Pecover v. Electronic Arts, Case No. 08-2820, and will discharge 24 my duties in accordance with the instructions provided to me by 25 the Court. 26 27 Dated: ___________ DR. TIM BRESNAHAN 28 9

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