Corcoran et al v. CVS Health Corporation

Filing 535

PRETRIAL ORDER NO. 5 RE: TRIAL LOGISTICS. Signed by Judge Yvonne Gonzalez Rogers on 5/27/2021. (fs, COURT STAFF) (Filed on 5/27/2021)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER CORCORAN, ET AL.,
Plaintiffs,

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v.

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CVS PHARMACY, INC.,

PRETRIAL ORDER NO. 5 RE: TRIAL
LOGISTICS

Defendant.

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United States District Court
Northern District of California

Case No. 4:15-CV-3504-YGR

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TO ALL PARTIES AND COUNSEL OF RECORD:

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On May 26, 2021, the Court conducted a pre-trial conference focused primarily on

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logistics. The Court confirms herein, and where necessary, modifies prior orders given the current

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state of COVID-19 protocols at the courthouse where the jury trial is scheduled to begin on June

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7, 2021.

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1. Trial Schedule

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Trial days shall include Monday through Friday with the anticipation that the evidentiary

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proceedings should conclude on June 22 or 23, 2021. Court breaks are extended from 15 minutes

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to 20 minutes given the limits on access to bathroom facilities.

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The Court confirms that parties may have ten persons in the courtroom during trial.

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(Pretrial Order No. 3.) During jury selection, the Court can accommodate five (5) persons, rather

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than the three (3) previously ordered. (Pretrial Order No. 4.)

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2. Jury Selection

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The Court anticipates providing completed questionnaires from the prospective jurors to

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the parties on May 27, 2021. The parties shall meet and confer in an attempt to stipulate to those

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that may be excused and shall provide the Court with their perspectives via e-mail by 9:00 a.m. on

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Tuesday, June 1, 2021. The parties are reminded that ultimately, it is the Court’s decision to

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excuse with respect to hardship.
In accordance with Model Rule of Professional Conduct 3.5(b) and Formal Opinion for

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466, the parties “may review a juror’s or potential juror’s Internet presence, which may include

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postings by the juror or potential juror in advance of and during the trial, but . . . may not

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communicate directly or through another with a juror or potential juror.” A party “may not, either

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personally or through another, send an access request to a juror’s electronic social media. An

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access request is a communication to a juror asking the juror for information that the juror has not

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made public and that would not be the type of ex parte communication prohibited by Model Rule

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3.5(b).” Further, to the extent that a party asks any follow-up questions to a prospective juror

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during voir dire regarding information obtained from the review, the party shall disclose the

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United States District Court
Northern District of California

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review to the juror.

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The Court will do a physical walk-through with the parties on Friday, June 4, 2021, at

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9:00 a.m. The parties shall meet at the jury orientation room on the fourth floor of the Oakland

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courthouse.

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3. Trial Exhibits

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The parties are excused from delivering hard copies of the Court’s exhibit set on Friday,

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May 28, 2021. They shall coordinate with chambers to deliver the same during the week of June

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1, 2021. Courtesy copies of the exhibits on flash drives shall also be provided. Official admitted

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exhibits shall be delivered on a rolling basis to the Courtroom Deputy as the exhibits are admitted.

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The parties shall send to the Court color copies of the expert disclosures previously

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referenced with the bubbles/annotations showing and in color.

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4.

Witnesses

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The parties shall meet and confer with respect to any witnesses who may be requesting to

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appear remotely via Zoom platform given the COVID-19 pandemic. If a witness will be

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appearing remotely, the following shall apply:

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i. Each party shall ensure that all trial participants have requisite hardware,

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software, and Internet resources, and sufficient training to participate

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seamlessly at trial, including ensuring that all participants are online and know
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how to connect so that the trial may commence at 8:30 a.m. each trial day.

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Each party shall also make available and display for use when needed all

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documents to be used as exhibits at trial. Hard copies of exhibits shall be sent

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in advance to the witness with the instruction that the package shall not be

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opened prior to the witness’s testimony.

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ii. Hardware Requirements and Recommendations. In order to conduct the trial

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on the Zoom platform, each participant must have, at a minimum, the following

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resources:

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1. An internet connection – broadband wired or wireless (3G or 4G/LTE)

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2. Speakers or headphones and a microphone – built-in or USB plug-in or

United States District Court
Northern District of California

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wireless Bluetooth
3. A webcam or HD webcam – built-in or USB plug-in or a HD cam or
HD camcorder with video capture card

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4. See https://support.zoom.us/hc/en-us/articles/201362023-System-

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requirements-for-Windows-macOS-and-Linux for a discussion of

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system requirements for various computer systems. Each party shall be

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responsible for ensuring that each witness that party intends to call shall

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meet such specifications, at that party’s expense.

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iii. Security. The Court will use its standard security protocols during the trial.
The parties shall meet and confer with respect to the ordering of witnesses, especially for

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those who are traveling, and on the topic of whether “unavailability” (for purposes of analyzing

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whether deposition testimony will be allowed) is, at this point, stipulated.

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With respect to the parties’ continuing inability to resolve objections to deposition

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designations beyond those previously submitted to the Court, they will each be required to present

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the testimony in a question/answer mode during their trial presentation and the Court will rule on

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objections in the same manner as it would have had the testimony been presented live. Video

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presentation will not be allowed if the Court is making evidentiary rulings. Alternatively, the

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parties may stipulate to hire a retired judge to resolve the designation disputes as long as such
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stipulation is without any right to appeal to the district court.

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5. Trial Conference

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The next pretrial conference shall occur at 9:00 a.m. on Wednesday, June 2, 2021, via the

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Zoom platform. The parties shall meet and confer with respect to an agenda and submit it to the

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Court no later than 2:00 p.m. the prior day.

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United States District Court
Northern District of California

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The parties are reminded to review this Court’s prior orders which addressed some of the
topics discussed during this conference, such as the punitive damages phase, if any.
IT IS SO ORDERED.
Dated: May 27, 2021
______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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