Abaxis, Inc. v. Cepheid

Filing 278

ORDER by Judge Lucy H. Koh granting in part and denying in part 256 Motion for relief due to late discovery (lhklc4, COURT STAFF) (Filed on 9/17/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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ABAXIS, INC.,
Plaintiff,

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v.
CEPHEID,

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Defendant.

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Case No.: 10-CV-2840-LHK
ORDER GRANTING-IN-PART AND
DENYING-IN-PART ABAXIS’S
MOTION FOR RELIEF DUE TO LATE
DISCOVERY AND CASE
MANAGEMENT ORDER

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A hearing on Abaxis’s motion for relief due to late discovery was held on September 17,
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2012. For the reasons stated on the record, the Court ruled as follows:
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Abaxis’s motion for relief due to late discovery is GRANTED-IN-PART and DENIED-IN19
PART.
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All of Cepheid’s late produced documents are admissible for Abaxis’s use at trial per
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Cepheid’s concession.
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Per the parties’ statements at the hearing on Abaxis’s motion for relief due to late
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discovery, the parties shall stipulate that Cepheid’s late produced documents are admissible and
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were produced in August 2012, less than one month before trial.
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Abaxis may depose former or current Cepheid employees, including, but not limited to
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Doug Dority, Lily Sanchez, Ron Chang, Jackie Tso, John Clark, Wayne Okada, Dale Peterson,
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Mark Levy, Francisco Dias Laorenco, Pierre Tschaeppaet, and John Bishop, for a total of 15 hours.
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Case No.: 10-CV-2840-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART ABAXIS’S MOTION FOR RELIEF DUE TO LATE
DISCOVERY AND CASE MANAGEMENT ORDER

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Cepheid may not introduce the late produced documents as evidence at trial. However,

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Cepheid may cross-examine Abaxis’s witnesses about any late produced documents that Abaxis

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introduces at trial. Cepheid also may call its own witnesses to rebut Abaxis’s characterization of

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any late produced documents that Abaxis introduces at trial. Cepheid’s experts shall not rely on

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the late produced documents, but may rebut Abaxis’ characterization of any documents that Abaxis

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introduces at trial.

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Abaxis’s MIL #1 to exclude Cepheid’s non-infringement argument relating to the 3% CV
claim limitation is DENIED.

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United States District Court
For the Northern District of California

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Abaxis’s MIL #4 for an adverse inference instruction due to the late production of
documents is DENIED.

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Cepheid’s MIL #1 to exclude argument or suggestion concerning Cepheid’s pre-suit advice

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of counsel is GRANTED without prejudice. If Cepheid opens the door, Abaxis can then seek

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reconsideration of this ruling.

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ADDITIONAL ISSUES RELATING TO CASE MANAGEMENT:

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The Court ordered the parties to reduce their exhibit lists to 250 exhibits per side. The

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Court will grant Abaxis slight leeway to include exhibits above 250 if, after Abaxis has begun

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culling its exhibit list, Abaxis recognizes material new exhibits among Cepheid’s late produced

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documents. The parties shall file amended exhibit lists by Friday, September 21, 2012, at noon.

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The parties shall lodge with Chambers 3 binders of exhibits by Friday, September 21, 2012, at

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noon.

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The parties shall lodge 15 jury notebooks by Friday, September 21, 2012 at noon.

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The parties shall file and email jury instructions and verdict forms consistent with the

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Court’s September 14, 2012, pretrial order by Wednesday, September 19, 2012.
The Court ordered the parties to email Ms. Parker-Brown with a mediation status report by
Wednesday, September 19, 2012, at 12:45 p.m.
On September 14, 2012, the Court scheduled two additional days of trial. As a result, the
trial is scheduled to run into a third week. Accordingly, the Court orders that the jury shall include
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Case No.: 10-CV-2840-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART ABAXIS’S MOTION FOR RELIEF DUE TO LATE
DISCOVERY AND CASE MANAGEMENT ORDER

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an additional juror, for a total of 9 jurors. The Court allows each party an additional preemptory

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challenge, for a total of 4 preemptory challenges per side.

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IT IS SO ORDERED.

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Dated: September 17, 2012

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_________________________________
LUCY H. KOH
United States District Judge

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United States District Court
For the Northern District of California

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Case No.: 10-CV-2840-LHK
ORDER GRANTING-IN-PART AND DENYING-IN-PART ABAXIS’S MOTION FOR RELIEF DUE TO LATE
DISCOVERY AND CASE MANAGEMENT ORDER