U.S. Ethernet Innovations, LLC v. Netgear, Inc.

Filing 50

ORDER REFERRING DISCOVERY DISPUTES TO MAGISTRATE JUDGE BEELER AND PROVIDING NOTICE OF INTENT TO APPOINT TECHNICAL ADVISOR. Signed by Judge Claudia Wilken on 6/6/2013. (Attachments: # 1 resume)(ndr, COURT STAFF) (Filed on 6/6/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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U.S. ETHERNET INNOVATIONS, LLC,

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Plaintiff,

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ORDER REFERRING
DISCOVERY DISPUTES
TO MAGISTRATE
JUDGE BEELER AND
PROVIDING NOTICE
OF INTENT TO
APPOINT TECHNICAL
ADVISOR

v.

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No. C 13-2262 CW

NETGEAR, INC.

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Defendant.
________________________________/

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United States District Court
For the Northern District of California

All discovery disputes in the related cases have been
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referred to Magistrate Judge Beeler.

The Court hereby refers all

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future discovery disputes in this case to Judge Beeler as well.
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As in the related cases, the Court finds that, due to the
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complexity of these cases and the Patents-in-Suit, it would
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benefit from the services of a technical advisor.

In the related

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cases, the Court has previously given notice that it intends to
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re-appoint Mr. Kwan Chan, who previously served as the technical
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advisor on the related cases before they were re-assigned, in that
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capacity.

The Court now gives notice that it intends to appoint

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Mr. Chan as the technical advisor in this case as well.
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“When outside technical expertise can be helpful to a
district court, the court may appoint a technical advisor.”

FTC

v. Enforma Natural Prods., 362 F.3d 1204, 1213 (9th Cir. 2004)
(citing Ass’n of Mexican-American Educators v. California, 231
F.3d 572, 590 (9th Cir. 2000) (en banc)).

“A technical advisor is

a tutor who aids the court in understanding the ‘jargon and
theory’ relevant to the technical aspects of the evidence.”

Id.

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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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“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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making findings of fact or conclusions of law.”

“A technical

Id. (citing A&M

United States District Court
For the Northern District of California

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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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Because of this distinction,

Id.
INTENDED ORDER OF APPOINTMENT

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Accordingly, the Court gives notice to the parties that the

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Court intends to appoint Mr. Chan as a “Technical Advisor” under

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the following terms:

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1.

Any advice provided to the Court by Mr. Chan will not be

based on any extra-record information.
2.

To the extent that the Court may ask Mr. Chan to provide

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a formal written report on technical advice concerning the case, a

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copy of the formal written report prepared by Mr. Chan shall be

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provided to the parties.

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have informal written and verbal communications with Mr. Chan,

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including written summaries and explanations of his advice to the

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Court, which are not included in any formal reports.

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attend all case-related court proceedings.

However, the Court reserves the right to

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Mr. Chan may

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3.

Mr. Chan may review any pleadings, motions or documents

submitted to the Court.

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4.

As a Technical Advisor, Mr. Chan will make no written

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findings of fact and will not supply any evidence to the Court.

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Thus, Mr. Chan will be outside the purview of “expert witnesses”

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under Fed. R. Evid. 706.

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depositions and questioning of expert witnesses will be

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inapplicable to Mr. Chan.

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United States District Court
For the Northern District of California

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5.

As such, the provisions in Rule 706 for

See Reilly, 863 F.2d at 155-56.

Mr. Chan will have no contact with any of the parties or

their counsel except for billing purposes.

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6.

Each party shall bear the cost of the Technical Advisor

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on a per capita basis, payable in advance.

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appointment, a trust account was established to cover the

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anticipated fees and costs, which may still have funds.

During his initial

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Within fifteen days of his re-appointment, Mr. Chan shall

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report to the Court on the state of his fees and expenses and make

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a recommendation to the Court as to whether the trust account

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needs additional deposits from the parties, including any new

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parties who have not yet made an initial contribution to the

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account.

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Mr. Chan shall issue statements to the parties and draw from

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

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the appointment.

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trust account needs additional deposits from the parties as the

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case progresses.

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hour.

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7.

When needed, he shall advise the Court if the

Mr. Chan will bill at the rate of $450.00 per

Mr. Chan shall file a declaration that he will adhere to

the terms of his appointment.
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CONCLUSION
Within one week of the date of this Order, Defendant Netgear,

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Inc. may file an objection to the appointment of Mr. Chan as the

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Court’s technical advisor.

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Court specifically wishes to know of any objection based on the

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following grounds:

Among the grounds for objection, the

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(a) Bias on the part of Mr. Chan;

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(b) Lack of funds to share the fees of the advisor on the

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United States District Court
For the Northern District of California

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part of the objecting party.
Any objection shall be lodged directly with the Magistrate

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Judge and shall not be e-filed.

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grounds of objection and be accompanied by a supporting

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declaration and legal memorandum supporting the objection.

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Magistrate Judge shall not advise the Court of the identity of any

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party making an objection.

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the parties to determine if any modification of the terms of

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appointment would overcome the objection.

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Magistrate Judge shall submit a recommendation to the Court in

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accordance with paragraphs 1-7 or as modified, or of non-

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appointment due to objections.

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The objection shall state the

The

The Magistrate Judge may confer with

Thereafter, the

The Court will determine whether to make the appointment
under any modified terms of appointment.
IT IS SO ORDERED.

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Dated: 6/6/2013

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CLAUDIA WILKEN
United States District Judge

cc: MagRef; LB

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