The Facebook, Inc. v. Connectu, Inc et al
ORDER of USCA as to 611 Notice of Appeal, filed by Tyler Winklevoss, Cameron Winklevoss, Divya Narendra, 582 Notice of Appeal, filed by ConnectU LLC, 615 Notice of Cross Appeal, filed by Mark Zuckerberg, The Facebook, Inc. (cv, COURT STAFF) (Filed on 8/29/2008)
The Facebook, Inc. v. Connectu, LLC et al
F IL E D
U N IT E D STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
AUG 29 2008
MOLLY C. DWYER, CLERK
U . S . C O U R T OF APPE A L S
T H E FACEBOOK, INC.; et al., Plaintiffs - Appellees, v. C O N N E C T U , INC., FKA ConnectU, LLC,
N o . 08-16745 D .C . No. 5:07-cv-01389-JW N o rth ern District of California, S an Jose
ORDER Defendant - Appellant, and P A C IF IC NORTHWEST SOFTWARE, IN C .; et al., Defendants.
T H E FACEBOOK, INC.; et al., Plaintiffs - Appellants, v. C O N N E C T U , INC., FKA ConnectU, L L C ; et al., Defendants - Appellees.
N o . 08-16849 D .C . No. 5:07-cv-01389-JW N o rth ern District of California, S an Jose
T H E FACEBOOK, INC.; et al., Plaintiffs - Appellees, v. C O N N E C T U , INC., FKA ConnectU, L L C ; et al., Defendants, and C A M E R O N WINKLEVOSS; et al., Defendants - Appellants.
N o . 08-16873 D .C . No. 5:07-cv-01389-JW N o rth ern District of California, S an Jose
T h ese cases are under consideration for inclusion in the Mediation Program. W ith in 14 days of the date of this order, counsel for all parties intending to file b r ie fs in this matter are requested to inform Stephen Liacouras, Circuit Mediator, in writing, by fax at (415) 355-8566, of their clients' views on whether: the case is ap p ro p riate for settlement discussions or mediation; the court can accommodate o n g o in g settlement discussions or otherwise facilitate settlement of the dispute; an d /o r the court should schedule a telephonic conference to discuss settlement. T h is communication will be kept confidential, if requested, from the other parties in the case. This communication shall not be served on the opposing party and sh all not be filed with the court.
C o n ta ct information and the procedures governing the Mediation Program are set out in the attached memorandum. Counsel should read the memorandum an d provide a copy to their clients. T h e existing briefing schedules remain in effect pending the determination w h eth er the case will be selected for inclusion in the Mediation Program. F O R THE COURT
B y : Virna L. Sanchez D e p u ty Clerk
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT C IR C U IT MEDIATION OFFICE Jam es R. Browning United States Courthouse P .O . BOX 193939 9 5 Seventh Street S an Francisco, California 94119-3939 (4 1 5 ) 355-7900 (4 1 5 ) 355-8566 (Fax)
P R O C E D U R E S GOVERNING THE CIRCUIT MEDIATION PROGRAM A. P u r p o s e of the Program T o facilitate settlement of the appeal.
T h e Circuit Court Mediators T h e nine Circuit Mediators are full-time employees of the Ninth Circuit. T h ey are experienced litigation attorneys who also have extensive training and ex p erien ce in negotiation, mediation and settlement. C. S c o p e of the Program A ll counseled civil cases filed in this Court, with the exception of certain categ o ries of cases set forth in Ninth Circuit Rules 3-4 and 15-2, are eligible to be in clu d ed in the Program. D. S e le ctio n of Cases for Inclusion in the Program T h e Civil Appeal Docketing Statement. In almost all civil cases, co u n sel must complete and submit to the district court upon the filing of the N o tice of Appeal, or to the Ninth Circuit upon the filing of a Petition for R ev iew , a Civil Appeal Docketing Statement ("CADS"). Specific req u irem en ts for the CADS are set forth in Ninth Circuit Rules 3-4 and 15-2 a n d Federal Rules of Appellate Procedure, Appendix Form 6. The Court lo o k s to the CADS to help determine if a case is an appropriate candidate for in clu sio n in the Mediation Program and to facilitate case management. A s se ss m e n t Conference. Following review of the CADS, the Court w ill usually conduct a telephonic assessment conference before deciding w h e th e r the case should be included in the Program. Counsel are to discuss settlem en t with their principals before the assessment conference. The in itial assessment conference typically lasts between 30 minutes and one h o u r and includes a discussion of the case's litigation history and possible settlem en t processes and structures.
S electio n of cases is based upon a number of factors, including the p arties' interest in participating and the likelihood of settlement. A p p ro x im ately fifty percent of eligible cases are selected. W h ile participation in the Program typically occurs in the pre-briefing stage, co u n sel may ask to be included in the Program at any time. Requests should b e in writing and addressed to the Chief Circuit Mediator. These co m m u n icatio n s will be kept confidential at counsel's request. E. S c h e d u lin g Conferences P rio r to each conference, counsel will receive an order setting the date, time a n d place of the conference, identifying the participants and, if appropriate, in stru ctin g them how to prepare. The Court looks with disfavor on requests to resch ed u le the conference date, except where a date directly conflicts with a p rev io u sly scheduled court appearance or vacation. T h e court will initiate the telephone call and contact each participant at the telep h o n e number listed on the "List of Conference Participants" attached to the o r d e r . Counsel should check the information for completeness and accuracy. P lease advise the Mediation Office of questions about dates, of any changes or co rrectio n s in participants or telephone numbers or if the appeal settles before the co n feren ce date by fa x (415) 355-8566. U n less counsel receive an order scheduling an assessment conference or a n order selecting the appeal for the Program, counsel should assume the a p p ea l has not been selected for inclusion in the Program. In the absence of a n order-resetting or vacating the briefing schedule, counsel must comply w ith the original briefing schedule set by the clerk. S e ttle m e n t Procedures E ach case presents unique circumstances and personalities that must be c o n s id e r ed in determining the settlement procedure that provides the optimal ch an ce for resolution. Thus, settlement procedures are determined on a case-tocase basis. The individualized procedure may include an initial conference by telep h o n e or in-person, with attorneys and with or without parties themselves. C u sto m arily, the initial conference provides counsel and the Mediator the o p p o rtu n ity to exchange information and determine a process that might provide th e greatest opportunity for resolution. Thereafter, the Mediator may conduct fo llo w -u p conferences with parties or attorneys, either in separate or joint sessions, in - p e r so n or on the telephone. In appropriate circumstances, the Mediator may F.
issu e procedural orders to accommodate private mediators or to coordinate the s ettle m e n t process with related proceedings, or may refer a case to a judge, m a g is tr ate , arbitrator or other mediator. P r ep a r in g for a Settlement Conference P rio r to the conference, counsel should discuss with their clients what the clien ts believe must be present to achieve a fair settlement, encouraging them to ex p lo re not only their legal positions but also the interests that underlie their p o sitio n s. Counsel should also discuss the risks of litigation, litigation expenses, th e advantages and disadvantages of likely litigated and mediated outcomes, and an assessm en t of the opposition's interests, needs and point of view. In some cases, the Mediator will request mediation statements prior to c o n f e r en c e s. The contents of the statements and whether they will be exchanged w ith the other parties will be determined at the time of the request . H. P articip an ts and Authority G en erally, parties appear at the initial conference through counsel. All c o u n s el intending to file briefs in the case shall participate in the conference. If m o re than one attorney is representing a party, then the attorney with the most d irect relationship with the client for the purpose of settlement discussions must p articip ate. Co-counsel and other attorneys in principal counsel's firm may attend if their presence would be beneficial. Subsequent conferences may also include participation of the parties and r ep r e se n ta tiv e s of insurance carriers or other parties. If telephone conference p articip an ts do not possess the authority to make and respond to settlement p ro p o sals, someone with authority must be readily available. Parties in in-person m e d ia tio n s must be represented by an individual who is fully informed and vested w ith full, discretionary settlement authority. C o n fid en tiality of the Process I n order to encourage efficient and frank settlement discussions, the Court ex ercises great care to ensure strict confidentiality of the settlement process. C ir cu it Rule 33-1 provides that settlement-related information disclosed to a court m ed iato r will be kept confidential and will not be disclosed to the judges deciding th e appeal or to any other person outside the Circuit Mediation Program p a r tic ip a n ts . Documents and correspondence related to settlement are maintained o n ly in the Circuit Mediation Office and are never made part of the main Ninth C ircu it case file. Should the mediator confer separately with the participants, those I. G.
d iscu ssio n s shall also be maintained in confidence from the other participants in th e settlement discussions to the extent that the communicating parties request. In addition, parties and their clients who participate in any aspect of the C ircu it Mediation Program are expected to respect the confidentiality of the settlem en t processes and to adhere to the following: (1 ) Unless they indicate otherwise to the mediator at the initiation of any settlem en t discussions, all parties, attorneys and other participants in the settlement d iscu ssio n s are assumed to agree that any written or oral communication made by th e mediator, or any party, attorney, or other participant in the settlement d is c u s s io n s : ( a) may not be used for any purpose in any pending or future p ro ceed in g in this or any other court or administrative forum; and (b ) may not be disclosed to anyone who is not a participant in the m ed iatio n or an authorized agent of a participant. ( 2 ) The nondisclosure provisions of paragraph (1) do not apply if such d is clo s u r e : (a) is agreed upon by all participants in the mediation and the court; or (b ) is made in the context of a subsequent confidential mediation or settlem en t conference with the agreement of all participants and the subsequent th ird -p arty neutral. A u th o rity of the Mediator O n ce ordered by the Mediator, participation in telephone or in-person co n feren ces is mandatory. The Mediator may order participation of counsel, the p arties themselves, or both. Failure to participate may result in sanctions, in clu d in g dismissal of the appeal. In cases selected for inclusion in the Program, the Mediator is authorized to r u le on certain non-dispositive procedural matters, including the briefing schedule, stays, consolidation and other case management issues. Before participants bring p ro ced u ral motions, they should consult the Circuit Mediator. If the Mediator is u n ab le to resolve a procedural issue with counsel by consensus, counsel will be d irected to file a motion with the Clerk. If settlement is not reached, the Circuit Mediator will address any ju risd ictio n al issues and work with counsel to develop the most efficient and ex p ed itio u s plan for disposition of the case. This may include limiting the issues, J.
lim itin g briefing and defining the record on appeal, or staying the appeal pending s o m e contingency, such as disposition of a related case. A t the conclusion of the last conference, the Circuit Mediator will issue an o r d e r releasing the case from the Mediation Program. After that point, counsel s h a ll direct all inquiries and filings to the Clerk's office. K. A d d itio n al Information A n y questions concerning the Mediation Program should be raised by c o n ta ctin g the Mediation Office at P.O. Box 193939, 95 Seventh Street, San F ran cisco , CA 94119-3939, fax (415) 355-8566 or phone (415) 355-7900. For g en eral questions concerning the rules and procedures of the Ninth Circuit, please co n tact the Clerk's office at P.O. Box 193939, 95 Seventh Street, San Francisco, C A 94119-3939, (415) 355-8000. All communications must include reference to the Ninth Circuit docket number.
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