Brewer v. General Nutrition Corporation

Filing 327

PRETRIAL ORDER NO. 2 RE: TRIAL DATE AND PRETRIAL CONFERENCE. Signed by Judge Yvonne Gonzalez Rogers on 12/16/15. (fs, COURT STAFF) (Filed on 12/16/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHARLES BREWER, individually and on
behalf of all other similarly situated current
and former employees of Defendant,
Plaintiffs,

Case No. 11-cv-3587 YGR
PRETRIAL ORDER NO. 2 RE:
TRIAL DATE AND PRETRIAL CONFERENCE

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v.
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GENERAL NUTRITION CORPORATION,
Defendant.

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On December 15, 2015, after hearing argument on defendant’s pending decertification and
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United States District Court
Northern District of California

Daubert motions, the Court held a further pretrial conference. Based upon the discussion with the
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parties, and for good cause shown, the Court ORDERS as follows:
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1. Trial Date and Schedule:
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a. The trial is CONTINUED one week to February 8, 2016. Jury selection
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shall occur the preceding Friday, February 5, 2016. Counsel are to report
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at 8:30 a.m. The parties are advised that this case trails United States v.
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Benson, 12-cr-480-YGR.
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b. The next pretrial conference shall occur on Friday, January 15, 2016, at
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9:30 a.m. The parties are directed to file a joint statement no later than
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January 8, 2016, including: (i) their plan(s) for proceeding as to issues that
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will be tried to the Court only, versus those to be tried to the jury, and any
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questions to be decided by the Court on this issue, and (ii) any other agenda
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items for the conference.
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2. Equipment: Projectors, screens and similar equipment must be tested in the
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courtroom prior to the day when it will be used. Arrangements may be made with
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the Courtroom Deputy, Frances Stone, at [phone], as to appropriate time for
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doing so.
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3. Jurors and Peremptory Challenges: The Court will seat a total of eight (8) jurors

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and no alternates. The Court sets the number of peremptory challenges at four (4).

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Batson motions must be made in a timely fashion. Argument on the same shall be

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made outside the presence of the jury panel.

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4. Jury Instructions: Per the Court’s Standing Order, the Court will give Model

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Instructions 1.1B, 1.2, 1.3 and/or 1.4, 1.6–1.15, 1.19, and 3.1–3.3 from the Manual

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of Model Civil Jury Instructions for the Ninth Circuit (2007 Edition). Parties shall

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be prepared to discuss other proposed jury instructions at the January 15, 2016

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continued pretrial conference.

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5. Opening Statements: Parties must meet and confer to exchange any visuals,

United States District Court
Northern District of California

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graphics or exhibits to be used in opening statements. Unless otherwise agreed, the

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exchange must occur no later than the close of business on the Wednesday before

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trial. Any objections not resolved must be filed in writing by the Thursday before

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trial. The parties shall be available by telephone on the Friday before trial to

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discuss the issues raised with the Court. The parties are reminded that the purpose

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of an Opening Statement is not to argue the facts but to provide the jurors with an

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outline of what each side expects the evidence will show.

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6. Depositions to be Used at Trial: Any party intending to use a deposition

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transcript at trial for any purpose shall lodge the signed original (or a

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certified/stipulated copy if, for any reason, the original is not available) for use by

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the Court and shall have extra copies available for use by him/herself and the

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witness. All other parties are expected to have their own copies available. The

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parties shall each prepare and provide an index of the lodged transcripts and shall

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review the same with the courtroom deputy upon lodging the transcripts. Before

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each trial day, counsel shall confer with the courtroom deputy and identify which

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of the transcripts may be used that day.

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To the extent that the deposition transcripts are not certified, the parties shall

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submit a stipulation concerning their authenticity no later than January 8, 2016.
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7. Video Depositions at Trial: A video deposition may only be shown after the

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designations, counter-designation and objections are resolved. A transcript shall be

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provided of the portions played to the jury. The court reporter shall be relieved of

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her duties to transcribe that portion of the trial. In lieu of the court reporter’s

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transcription, the parties shall file in the docket a copy of that portion of the

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transcript used during the trial. The filing shall be designated:

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“Plaintiff’s/Defendant’s Trial Related Transcript(s) for Video Deposition(s).” The

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filing shall include an index listing the name of the deponent-witness and the date

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used during trial.

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8. Witnesses at Trial: The party presenting evidence shall give the other party 24

United States District Court
Northern District of California

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hours written notice of the witnesses to be called unless otherwise agreed upon by

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the parties themselves. For witnesses to be called on a Monday, notice is to be

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given no later than 12:00 noon on Saturday.

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The parties shall file an updated witness list no later than January 8, 2016.

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The parties are admonished that use of trial time is critical given the limited

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resources of the Court. All parties must have witnesses ready and available to

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testify. If the party presenting evidence does not have a witness ready to be called

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once a prior witness steps down, that party may be deemed to have rested its case.

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Witnesses may be taken out of order upon stipulation or with leave of Court

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provided that the circumstances giving rise to such an accommodation are promptly

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called to the attention of opposing counsel and the Court.

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9. Objections: There shall be no “speaking objections,” and no rebuttal unless

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requested by the Court, in which case it shall be brief – e.g., “hearsay,” and if a

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rebuttal requested, “not offered for the truth.” If either counsel needs to make a

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better record, he/she may do so when the jury is out at the next break.

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10. Jury Questions: The Court allows written jury questions which it will share with
counsel at the break(s) and then place in the record.

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11. Requests for Transcripts: If transcripts will be requested during or immediately

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after the trial, arrangements must be made with the Court Reporter Coordinator

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(Telephone No. 510-637-3534) at least two weeks prior to the commencement of

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the trial.

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12. Settlement: Counsel shall promptly notify the Court by phone and email (after

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hours, use: [e-mail]) of any settlement. The notification

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shall indicate what further steps need to be taken to finalize the settlement. Unless

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the Court receives notice of settlement by 4:00 p.m. on the Wednesday prior to jury

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selection on Friday, jury costs will be assessed where the parties do not proceed to
trial as scheduled. Civ. L.R. 40-1. Parties are advised that the trial and all trial-

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United States District Court
Northern District of California

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related dates will not be vacated until a formal Notice of Settlement is filed.

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13. Trial Decorum and Procedure: Counsel, parties, and witnesses are expected to

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conduct themselves at all times – on or off the record and whether or not in the

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presence of a jury – in a professional and courteous manner during trial. Do NOT

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approach other parties’ witnesses without permission. You may approach your

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own non-hostile witnesses without permission.

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During voir dire you will be allowed to use the bathrooms in the jury room so that

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you do not share the facilities with the jurors. You may not linger in the jury room

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or use any exit door other than the one leading to the courtroom.

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14. Failure to Comply: Failure to comply with the obligations set forth in this order

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will result in sanctions appropriate to the gravity of the failure, including, but not

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limited to monetary fines and/or terminating sanctions.

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IT IS SO ORDERED.

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Dated: December 16, 2015

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______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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