Ewert v. eBay, Inc.

Filing 158

ORDER RE: SCHEDULING re 156 . Signed by Judge Ronald M. Whyte on December 16, 2011. (rmwlc2, COURT STAFF) (Filed on 12/16/2011)

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Edward S. Zusman (SBN 154366)
Kevin K. Eng (SBN 209036)
MARKUN ZUSMAN & COMPTON, LLP
465 California Street, Suite 500
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiffs

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John R. Fabry (Admitted Pro Hac Vice)
BAILEY & GALYEN
18333 Egret Bay Blvd., Suite 120
Houston, TX 77058
Telephone: [phone]
Facsimile: 281.335.5871

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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IN RE: EBAY LITIGATION

Case No.

C 07-2198 RMW

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ORDER RE: SCHEDULING
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Date:
Time:
Courtroom:
Judge:

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ORDER RE: SCHEDULING – C 07-2198 RMW

N/A
N/A
6, 4th Floor
Hon. Ronald M. Whyte

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Having reviewed the submissions of the parties and good cause appearing therefor, the
Court orders as follows:
1.

No Formal Pre-Motion Fact Discovery:
a.

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No later than November 30, 2011, Defendant will supplement the Sample

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Data Set (Sample Data Set - eBay-ML000316.xls), which has already been produced to Plaintiffs,

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with bid information and other data for the listings currently included in the Sample Data Set, on

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which eBay may rely in connection with the Motion.
b.

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The Sample Data Set, together with all supplemental data provided by

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eBay (collectively, “the Data Set”), may be used in connection with either Party’s pleadings and

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expert reports in connection with the Motion. Both Parties reserve all rights to contest the other

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Party’s arguments, analyses, findings, observations, and conclusions related to the Data Set.

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Notwithstanding the foregoing, for purposes of this Motion, neither Party shall challenge the

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other Party’s arguments, analyses, findings, observations, or conclusions with respect to the

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Motion on the ground that the Data Set includes an insufficient number of listings to support

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reliable conclusions in support of or in opposition to the Motion.

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2.

Due date for eBay’s Motion: eBay shall file its Motion for Summary Judgment no

later than January 27, 2012.
3.

Further Discovery:
a.

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Further Fact Discovery – No later than February 17, 2012 the parties shall

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meet and confer regarding the scope of additional fact discovery to be conducted, if any, by

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Plaintiffs related to the issues raised in the Motion. Any discovery conducted in connection with

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this Motion shall be limited in scope to the issues presented in the Motion, i.e., the viability of

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Plaintiffs’ theory of damages/restitution. The deadline for completing such further fact discovery

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is April 17, 2012. Based on the court’s understanding of the nature of defendant’s contemplated

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motion, little, if any, further discovery will be necessary. If the Parties cannot agree on the scope

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or timing of additional fact discovery per this paragraph the parties may raise the matter with the

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Court by letter or telephone conference call and need not file formal motions to compel additional

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discovery.
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ORDER RE: SCHEDULING – C 07-2198 RMW

b.

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Expert Discovery:
i.

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eBay’s Expert: No later than January 27, 2012, concurrently with

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service of its Motion for Summary Judgment, eBay shall serve Plaintiffs with the report and

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disclosure for any expert who offered testimony or analysis in support of its Motion.
ii.

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Plaintiffs’ Expert (if any): No later than April 23, 2012 Plaintiffs

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shall serve eBay with any expert report and disclosure of any expert whose testimony or analysis

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Plainitffs intend to offer in connection with Plaintiffs’ opposition to eBay’s Motion for Summary

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Judgment.
iii.

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shall serve Plaintiffs with any Rebuttal expert report and disclosure.
iv.

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eBay’s Rebuttal Expert (if any): No later than May 11, 2012, eBay

4.

Deadline

Expert Depositions must be completed by June 8, 2012.
for

Plaintiffs’

Request

to

File

Cross-Motion

for

Summary

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Judgment/Partial Summary Judgment: If Plaintiffs intend to renew their request to file a cross-

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motion for partial summary judgment as to the viability of their damages theory, they must

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request permission to do so by submitting a letter to the Court no later than April 27, 2012. No

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later than May 4, 2012, eBay may submit a letter to the Court setting forth its position in response

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as to whether Plaintiff should be allowed to file a cross-motion. In the event the Court grants

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Plaintiffs’ request, the Parties shall meet and confer regarding an alternative briefing schedule,

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and the deadlines imposed in paragraphs 5 to 7 shall be vacated.

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5.

Deadline for Opposition to Motion for Summary Judgment: July 9, 2012

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6.

Deadline for eBay’s Reply Brief: August 6, 2012

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7.

Hearing: August 24, 2012 or as soon thereafter as may be heard by the Court.

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All other deadlines are vacated as having been superseded by this Order.

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IT IS SO ORDERED.
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Dated: ____

_______, 2011

________________________________
Hon. Ronald M. Whyte

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ORDER RE: SCHEDULING – C 07-2198 RMW

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ORDER RE: SCHEDULING – C 07-2198 RMW