Pecover et al v. Electronic Arts Inc.

Filing 359

AMENDED 357 ORDER CONCERNING DUTIES AND INSTRUCTIONS FOR COURT-APPOINTED TECHNICAL ADVISOR AND MODIFYING THE CASE SCHEDULE. Motions due by 5/31/2012. Cross Motions due by 6/14/2012. Responses due by 6/14/2012. Replies due by 6/21/2012. Replies du e by 6/28/2012. Case Management Statement due by 7/19/2012. Further Case Management Conference set for 7/26/2012 02:00 PM. Motion Hearing set for 7/26/2012 02:00 PM before Hon. Claudia Wilken.. Signed by Judge Claudia Wilken on 3/26/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 3/26/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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GEOFFREY PECOVER; and ANDREW
OWENS, on behalf of themselves
and all others similarly
situated,
Plaintiffs,

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United States District Court
For the Northern District of California

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v.
ELECTRONIC ARTS, INC., a Delaware
Corporation,

No. C 08-2820 CW
AMENDED ORDER
CONCERNING DUTIES
AND INSTRUCTIONS
FOR COURTAPPOINTED
TECHNICAL ADVISOR
AND MODIFYING THE
CASE SCHEDULE

Defendant.
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The Court hereby notifies the parties of its intent to

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appoint Dr. Tim Bresnahan as the Court’s Technical Advisor

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regarding economic issues in this antitrust case, if Dr. Bresnahan

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accepts the appointment.

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Bresnahan regarding his duties and role as Technical Advisor.

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The Court further instructs Dr.

BACKGROUND
At the hearing on January 19, 2012, this Court directed the

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parties to meet and confer regarding the advisability of having a

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Court-appointed expert who would advise the Court on the economic

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issues in this case but would not testify to the jury.

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instructed the parties to consider candidates for such an

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appointment, the subject matter on which the expert would assist

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and what role the expert might perform.

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might require expert advice to assist it in resolving the parties’

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competing expert testimony to rule on Defendant Electronic Arts,

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Inc.’s anticipated motion to de-certify the class prior to its

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summary judgment motion.

The Court

The Court noted that it

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On March 12, 2012, the parties filed a joint letter with the

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Court.

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three of whom were selected by Defendant and two of whom were

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selected by Plaintiffs.

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one of Defendant’s selections, Dr. Steven Salop.

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turn recognized that any of the five candidates, including the two

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proposed by Plaintiffs, were “highly qualified” and “would be a

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valuable resource for the Court.”

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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

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“appropriate and reasonable,” id. at 3, Plaintiffs argue that the

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Court will be able to address adequately the issues presented in

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this case without expert assistance.

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LEGAL STANDARD
“When outside technical expertise can be helpful to a

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district court, the court may appoint a technical advisor.”

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v. Enforma Natural Prods., 362 F.3d 1204, 1213 (9th Cir. 2004)

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(citing Ass’n of Mexican-American Educators v. California, 231

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F.3d 572, 590 (9th Cir. 2000) (en banc)).

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a tutor who aids the court in understanding the ‘jargon and

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theory’ relevant to the technical aspects of the evidence.”

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(quoting Reilly v. United States, 863 F.2d 149, 158 (1st Cir.

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1988)).

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on, and help the court understand relevant scientific evidence.”

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Id. (citing Ass’n of Mexican-American Educators, 231 F.3d at 590).

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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

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advisor is distinct from that of an expert witness.

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advisor may not assume the role of an expert witness by supplying

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new evidence; nor may an advisor usurp the role of the judge by
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“A technical

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making findings of fact or conclusions of law.”

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Records, Inc. v. Napster, Inc., 284 F.3d 1091, 1097 (9th Cir.

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2002); Reilly, 863 F.2d at 155).

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“[t]echnical advisors, acting as such, are not subject to the

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provisions of Rule 706, which govern court-appointed expert

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witnesses.”

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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

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endorsed certain “procedural steps . . . to assure the parties

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United States District Court
For the Northern District of California

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that the court is proceeding openly and fairly appointing such

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individuals.”

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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.
Id. (citing Ass’n of Mexican-American Educators, 231 F.3d at
611-14 (Tashima, J., dissenting)).

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FTC, 362 F.3d at 1214-1215.

DISCUSSION
Based on the complexity of the economic issues and theories
presented, especially related to injury and damages, the Court
finds that outside technical advice would be helpful in proceeding
in this case.

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I.

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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.

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Plaintiffs proposed Dr. Bresnahan, and Defendant indicated

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that Dr. Bresnahan was highly qualified to serve in this capacity.

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The parties have already had the opportunity to consider and raise

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disputes regarding potential biases or conflicts and have not

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identified any such disputes.

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In order to accept this appointment, Dr. Bresnahan must give

United States District Court
For the Northern District of California

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his consent to serve as the Court-appointed expert in this case,

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and must acknowledge his responsibility to discharge his duties in

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accordance with the instructions set forth in this order, by

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signing in the designated space below and returning the signed

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original to the Court in the enclosed envelope.

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II.

Payment of the Technical Advisor

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Plaintiffs state that it would be “almost cost-prohibitive”

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if they were required to split the costs of paying for a neutral

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expert with Defendant.

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to the Court’s discretion whether the neutral’s fees . . . should

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be paid equally by the parties or entirely by EA.”

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While the parties do not provide the Court with an estimate of Dr.

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Bresnahan’s rates, Plaintiffs state that the hourly rates charged

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by the various economists proposed by the parties range from $650

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to $1,250 per hour.

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rates charged by their proposed economists, including Dr.

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Bresnahan, “fall at the lower end of this spectrum.”

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n.20.

Joint Letter at 9.

Id. at 9.

Defendant “leaves it

Id. at 5 n.9.

Plaintiffs also state that the

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Id. at 9

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The Court orders that Defendant shall pay for ninety percent

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of Dr. Bresnahan’s fees and expenses, and Plaintiffs will share

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equally the other ten percent.

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retainer totaling $30,000 in one of its counsel’s trust account;

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the retainer shall be apportioned in the same manner as the fees

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and expenses.

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III. Duties of the Technical Advisor

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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

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issue in this litigation.

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on, and help the Court understand relevant economic evidence and

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theories presented by the parties and their experts at various

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stages of this litigation, including class certification, summary

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judgment and trial.

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IV.

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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

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the Technical Advisor, the parties shall provide Dr. Bresnahan

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with copies of the following materials, both in electronic format

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and in organized binders that are labeled and tabbed:

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The operative complaint;

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2.

The operative answer;

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3.

The Court’s Order of December 21, 2010 granting in part

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and denying in part Plaintiffs’ motion for class certification;
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The expert reports and declarations of the parties’

economists; and

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5.

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economists.

Complete transcripts for the depositions of the parties’
If the transcripts are not yet available, the parties

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shall provide them to Dr. Bresnahan within five days of the date

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on which the parties receive them.

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The parties will provide additional materials to Dr.

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Bresnahan during the course of the litigation.

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will include the following:

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1.

Those materials

The parties’ briefs and supporting materials filed in

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relation to Defendant’s motion to de-certify the class,

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Defendant’s motion for summary judgment and the parties’ Daubert

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motions, on the date they are filed with the Court; and

United States District Court
For the Northern District of California

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2.

The parties’ pretrial documents, on the date they are

filed with the Court.

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The parties shall not send Dr. Bresnahan any additional

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material that is not already in the record, unless by stipulation

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or Court order.

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V.

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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

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prepare formal written reports providing technical advice

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concerning the case, copies of the formal written reports prepared

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by Dr. Bresnahan shall be provided to the parties and filed in the

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docket of this case.

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have informal verbal communications with Dr. Bresnahan which are

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not included in any formal written report.

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3.

However, the Court reserves the right to

Dr. Bresnahan shall provide formal written reports on

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any challenges under Daubert v. Merrell Dow Pharmaceuticals, 509

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U.S. 579 (1993), filed by either party, any motion to de-certify

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the class, motions for summary judgment, and any other matters on
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which the Court may request a written report.

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materials provided to him, Dr. Bresnahan will prepare an expert

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report, containing a statement of his evaluations and the reasons

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for his evaluations.

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of Dr. Bresnahan’s evaluations of the expert reports and

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supporting evidence submitted by the parties.

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look to other such reports for guidance as to formatting and

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standard content, no specific format is required.

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After reviewing the

The Court is looking for a basic statement

Although he may

Dr. Bresnahan shall attend the motion hearings in the

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United States District Court
For the Northern District of California

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case.

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is scheduled to commence on October 29, 2012, if the Court

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requests that he do so.

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He shall attend relevant portions of the ten-day trial that

Dr. Bresnahan may review any pleadings, motions or

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documents submitted to the Court.
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As a technical advisor, Dr. Bresnahan will make no

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written findings of fact and will not supply any evidence to the

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Court.

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witnesses” under Federal Rule of Evidence 706.

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provisions in Rule 706 for depositions and questioning of expert

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witnesses will be inapplicable to Dr. Bresnahan.

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Mexican-American Educators, 231 F.3d at 591 (“Rule 706 applies to

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court-appointed expert witnesses, but not to technical advisors

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. . . ”).

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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.
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Dr. Bresnahan shall bill at his usual hourly rate.

shall issue statements to the parties and draw from the trust

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He

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account every fifteen (15) days for his performance of the

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appointment.

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Dr. Bresnahan shall report to the Court on a periodic

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basis, every sixty (60) days, regarding the state of his fees and

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expenses and make a recommendation to the Court as to whether the

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trust account needs additional deposits from the parties as the

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case progresses.

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Bresnahan are referred to Magistrate Judge Cousins.

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VI.

United States District Court
For the Northern District of California

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All matters pertaining to the fees of Mr.

Case Schedule
If Defendant files a motion to de-certify the class, it shall

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do so at the same time that it files its motion for summary

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judgment; both motions shall be contained in a single brief.

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Daubert motions shall also be contained within the parties’ briefs

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on their dispositive motions.

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Any

To allow the Technical Advisor to review the documents filed

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by the parties and file a written report advising the Court on

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both motions and to maintain adequate time between the dispositive

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motion hearing and the trial date, the Court finds good cause to

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modify the case schedule as follows:

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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

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contained in a single brief of twenty-five
pages or less.

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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.
10/17/2012 at
2:00 p.m.

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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.

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Ten-day Jury Trial

10/29/2012 at
8:30 a.m.

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United States District Court
For the Northern District of California

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IT IS SO ORDERED.

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Dated: March 26, 2012

CLAUDIA WILKEN
United States District Judge

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CONSENT

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I consent to serve as the Court’s Technical Advisor in

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Pecover v. Electronic Arts, Case No. 08-2820, and will discharge

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my duties in accordance with the instructions provided to me by

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the Court.

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Dated:

___________
DR. TIM BRESNAHAN

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