Multiven, Inc. v. Cisco Systems, Inc.

Filing 48

STIPULATION AND ORDER RE: #47 REGARDING PROCEDURES FOR EXPERT WITNESS DISCOVERY. Signed by Magistrate Judge Seeborg on 10/15/09. (rslc2, COURT STAFF) (Filed on 10/15/2009)

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Gibson, Dunn & Crutcher LLP

GIBSON, DUNN & CRUTCHER LLP Robert E. Cooper, SBN 35888 [e-mail] 333 S. Grand Avenue Los Angeles, California 90071 Telephone: [phone] Facsimile: [phone] George A. Nicoud III, SBN 106111 [e-mail] Austin V. Schwing, SBN 211696 [e-mail] Lindsey E. Blenkhorn, SBN 227484 [e-mail] 555 Mission Street, Suite 3000 San Francisco, California 94105 Telephone: [phone] Facsimile: [phone] UNITED STATES DISTRICT COURT

*E-Filed 10/15/09*

FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

MULTIVEN, INC., a Delaware corporation, Plaintiff, v. CISCO SYSTEMS, INC., a California corporation, Defendant. CISCO SYSTEMS, INC., a California corporation, Counterclaimant, v. MULTIVEN, INC., a Delaware corporation; PINGSTA, INC., a Delaware corporation; and PETER ALFRED-ADEKEYE, an individual, Counterdefendants.

CASE NO. C 08-05391 JW-RS STIPULATION AND [PROPOSED] ORDER REGARDING PROCEDURES FOR EXPERT WITNESS DISCOVERY United States Magistrate Judge: The Hon. Richard Seeborg

STIPULATION AND [PROPOSED] ORDER REGARDING PROCEDURES FOR EXPERT WITNESS DISCOVERY; CASE NO. C 08-05391 JW-RS

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Gibson, Dunn & Crutcher LLP

The parties hereby stipulate and agree upon the following discovery procedures in connection with expert witnesses in the above-referenced action (hereinafter "Litigation"). 1. With respect to witnesses whom any party to this Litigation expects to call as an

expert witness at trial ("testifying expert") the parties shall provide expert reports as defined in Federal Rule of Civil Procedure 26(a)(2) at such times as specified by, as applicable, the Federal Rules of Civil Procedure or a Scheduling or Case Management Order in this Action. Contemporaneously with the provision of any such expert report, the party sponsoring such expert shall identify any documents, data, and information relied upon by the expert in forming his or her opinions. If the documents were produced in the Litigation, Bates numbers shall be provided in addition to a description of the documents. If the documents were not produced in the Litigation, copies of the documents shall be produced at the time the reports are exchanged. 2. To the extent that any testifying expert relies on, or the expert report includes or is

based on, exhibits, information or data processed or modeled by computer at the direction of a testifying expert, machine readable copies of those exhibits, information and data (including all input and output files) along with the appropriate computer programs, instructions, and field descriptions shall be produced with the expert's report. All electronic data and data compilation shall be produced in the same form or format in which it was used for the expert's calculations, in working order with all links to other spreadsheets and/or underlying data. No party need produce computer software programs that are reasonably and readily commercially available (e.g., Microsoft Word and Microsoft Excel). 3. The expert reports shall comply with Federal Rule of Civil Procedure 26(a)(2) and

Federal Rules of Evidence 702, 703, and 705. 4. Notwithstanding the parties' discovery obligations with respect to experts, the

following information and materials from testifying experts need not be produced by any party and are not discoverable: (a) Any draft reports, draft studies, draft affidavits, or draft work papers;

preliminary or intermediate calculations, computations, or data; or other preliminary, intermediate or draft materials prepared by, for or at the direction of a testifying expert witness; 2
STIPULATION RE CERTAIN DISCOVERY OF EXPERT WITNESS INFORMATION; CASE NO. C 08-05391 JW-RS

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(b)

Any written communication between counsel (or at counsel's direction) and

the expert (and staff and assistants), except communications that identify or contain facts, data or assumptions that the expert relied upon in forming his or her opinions. (c) Any notes or writings taken or prepared by or for a testifying expert witness in

connection with this matter including, but not limited to correspondence or memos to or from, and notes of conversations with, the expert's assistants and/or clerical or support staff, other expert witnesses, non-testifying expert consultants, or attorneys for the party offering the testimony of such expert witness, unless the notes or other writings are relied upon by the expert in forming his or her opinions. 5. Notwithstanding paragraph 4 above, the parties shall disclose for each testifying

expert the billing rate and total hours worked on this Litigation as of the time of deposition and trial. 6. Any fees charged by experts for time spent at depositions shall be paid by the party

that requested the deposition. 7. The parties shall produce any engagement agreements with any testifying experts, to

the extent such agreements exist, at the time the reports are exchanged. IT IS SO AGREED.

DATED: October 14, 2009 GIBSON, DUNN & CRUTCHER LLP Robert E. Cooper George A. Nicoud III Austin V. Schwing Lindsey E. Blenkhorn By: /s/ George A. Nicoud III George A. Nicoud III

Attorneys for Defendant CISCO SYSTEMS, INC.

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Gibson, Dunn & Crutcher LLP

STIPULATION AND [PROPOSED] ORDER REGARDING PROCEDURES FOR EXPERT WITNESS DISCOVERY; CASE NO. C 08-05391 JW-RS

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DATED: October 14, 2009 BLECHER & COLLINS, P.C. Maxwell M. Blecher Donald R. Pepperman James Robert Noblin By: /s/ Donald R. Pepperman Donald R. Pepperman

Attorneys for Plaintiff MULTIVEN, INC.

DATED: October 14, 2009 ROPERS MAJESKI KOHN & BENTLEY James C. Potepan Thomas M. O'Leary Brian C. Vanderhoof By: /s/ Thomas M. O'Leary Thomas M. O'Leary

Attorneys for Counterdefendants MULTIVEN, INC., PINGSTA, and PETER ALFREDADEKEYE

ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED
10/15/09 Dated: __________________

_______________________ Richard Seeborg United States Magistrate Judge

100661912_1.DOC

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Gibson, Dunn & Crutcher LLP

STIPULATION AND [PROPOSED] ORDER REGARDING PROCEDURES FOR EXPERT WITNESS DISCOVERY; CASE NO. C 08-05391 JW-RS