Oracle America, Inc. v. Innovative Technology Distributors, LLC

Filing 135

Order by Hon. Lucy H. Koh granting (134) Stipulation in case 5:11-cv-01043-LHK Appointing Special Master By Consent.Associated Cases: 5:11-cv-01043-LHK, 5:11-cv-02135-LHK(lhklc3, COURT STAFF) (Filed on 4/6/2012)

Case5:11-cv-01043-LHK Document134-2 Filed04/05/12 Page1 of 5

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MERYL MACKLIN (CA State Bar No. 115053)
[e-mail]
BRYAN CAVE LLP
560 Mission Street, 25th Floor
San Francisco, CA 94105-2994
Telephone: [phone]
Facsimile: [phone]

ROBERT S. FRIEDMAN (pro hac vice)
SHEPPARD MULLIN RICHTER &
HAMPTON LLP
30 Rockefeller Plaza
New York, NY 10112
Telephone: [phone]
Facsimile:
[phone]

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JEFFREY S. ROSS (CA State Bar No. 138172)
ORACLE AMERICA, INC.
500 Oracle Parkway, 7th Floor
Redwood Shores, CA 94065
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
Oracle America, Inc.

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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ORACLE AMERICA, INC.,

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Plaintiff,

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CASE NO. 5:11-CV-01043-LHK (HRL)
Consolidated for all purposes with
Case No.: 5:11-cv-02135-LHK

v.
INNOVATIVE TECHNOLOGY
DISTRIBUTORS LLC, HDLOGIX, INC.,
VINCENT JAMES SPINELLA, LINDA
SPINELLA, and BRIAN CONWAY,

[PROPOSED] ORDER APPOINTING
SPECIAL MASTER BY CONSENT

Defendants.

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[PROPOSED] ORDER APPOINTING SPECIAL MASTER
Oracle America, Inc. v. Innovative Technology Distributors LLC et al.
Case No. 5:11-CV-01043-LHK (HRL)

Case5:11-cv-01043-LHK Document134-2 Filed04/05/12 Page2 of 5

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Pursuant to Rule 53 of the Federal Rules of Civil Procedure, this Court’s Minute Order and

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Case Management Order filed February 15, 2012 (Docket no. 120), and the parties’ Stipulation for

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Appointment of Special Master, the Court hereby appoints the Hon. William J. Cahill (Ret.) of

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JAMS as Special Master to assist the Court in resolving discovery disputes that may arise in this

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litigation (hereinafter “Special Master”).

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1.

Basis for Appointment: The Special Master is hereby appointed pursuant to Rule

53(a)(1)(A) to perform duties consented to by the parties.
2.

No Grounds for Disqualification: Pursuant to Rule 53(a)(2) and 53(b)(3), the Special

Master has filed a declaration with this Court that states that he has no relationship to the parties,

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counsel, action, or Court that would require disqualification of a judge under 28 U.S.C. § 455. The

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parties have stipulated and agreed that Judge Cahill’s prior service as a mediator in this action shall

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not provide a basis to seek his disqualification as Special Master. During the course of these

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proceedings, the Special Master and the parties shall notify this Court immediately if they become

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aware of any potential grounds that would require disqualification.

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3.

Fairness Considerations: Pursuant to Rule 53(a)(3), the Court has considered the

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fairness of imposing the likely expenses of the Special Master on the parties. The Court believes

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that the appointment and use of the Special Master will materially advance the litigation in an

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efficient manner, thereby achieving cost-savings to all parties. The Court will protect against

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unreasonable expense and delay through communication with the Special Master and the parties as

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appropriate.

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4.

Notice Given to All Parties: Pursuant to Rule 53(b)(1), the Court provided notice to

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all parties of its intent to appoint a Special Master. All parties have had an opportunity to be heard

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with respect to such appointment before issuing this Order.

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5.

Diligence: Pursuant to Rule 53(b)(2), the Court hereby directs the Special Master to

proceed with all reasonable diligence in performing his duties.
6.

Scope of Special Master’s Duties and Authority: Pursuant to the stipulation of the

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parties, the Special Master shall have the authority provided in Rule 53(c), as well as the authority to

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make final orders concerning discovery disputes that may arise between the parties. The parties
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[PROPOSED] ORDER APPOINTING SPECIAL MASTER
Oracle America, Inc. v. Innovative Technology Distributors LLC et al.
Case No. 5:11-CV-01043-LHK (HRL)

Case5:11-cv-01043-LHK Document134-2 Filed04/05/12 Page3 of 5

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have expressly waived any right to object to a final order by the Special Master under Rule 53(f) in

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any dispute between the parties. Any appeal concerning or arising from a final order by the Special

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Master in a dispute between the parties shall be taken to the United States Court of Appeal in the

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same manner as an appeal from any other order of the District Court. With respect to discovery

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disputes between a party or parties and a non-party in this action, the Special Master shall have the

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authority provided in Rule 53(c) to assist the Court in resolving said disputes. The parties have

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expressly waived any right to object to an order by the Special Master under Rule 53(f) in a dispute

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between a party or parties and a non-party. A non-party in a discovery dispute with a party shall

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retain all rights available under Rule 53(f), and if the non-party does not object to the Special

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Master’s ruling within the time allowed under Rule 53(f)(2), the Special Master’s ruling shall

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become a final order.

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7.

Procedure for Motions Submitted to the Special Master: Prior to submitting any

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dispute to the Special Master, the parties shall jointly contact the Special Master to determine a

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mutually agreeable date and time for the dispute to be heard. Disputes may be heard telephonically

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or in person. Discovery motions and oppositions thereto shall take the form of a letter brief to the

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Special Master not to exceed five pages in length, exclusive of declarations and exhibits. Letter

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briefs and supporting materials shall be served concurrently on the Special Master and the other side

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via email, with opposition briefs and supporting materials due no later than 7 days after service of

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opening briefs. No reply briefs will be permitted.

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8.

Ex Parte Communications: The Special Master may communicate ex parte with the

Court at any time. The Special Master shall not communicate ex parte with any party.
9.

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Preservation of Materials and Preparation of Record: The Special Master shall

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maintain files consisting of all documents submitted to him by the parties and of any of his written

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orders, findings, and/or recommendations. Any records of the Special Master’s activities other than

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his written orders, findings, and/or recommendations shall be filed in accordance with paragraph 15

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herein.

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10.

Compensation: Pursuant to Rule 53(b)(2)(E) and 53(g), the parties shall be billed at

an hourly rate of $800 for the Special Master’s services in these proceedings plus a case
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[PROPOSED] ORDER APPOINTING SPECIAL MASTER
Oracle America, Inc. v. Innovative Technology Distributors LLC et al.
Case No. 5:11-CV-01043-LHK (HRL)

Case5:11-cv-01043-LHK Document134-2 Filed04/05/12 Page4 of 5

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management fee of $400 per party, per day. If the Special Master uses the services of a law clerk,

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the parties shall be billed $165 per hour for the law clerk’s time. At the end of each month in which

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the Special Master’s services (including his law clerk’s services as applicable) are utilized by the

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parties, he shall prepare and provide an invoice to counsel for Oracle and for ITD (and related

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parties). Each side shall be billed for half of the hourly fees, unless the Special Master or the Court

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directs otherwise.

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11.

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Special Master’s Reports to Court: The Special Master shall report to the Court as

directed by the Court. Fed. R. Civ. P. 53(f)

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12.

Special Master’s Orders: The Special Master shall file any written orders, findings,

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and/or recommendations with the Court via the Court’s Electronic Case Filing (“ECF”) system.

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Such filing shall fulfill the Special Master’s duty to serve his order on the parties. Fed. R. Civ. P.

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53(d).

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13.

Court’s Actions on Special Master’s Orders: The parties have stipulated and agreed

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that the Special Master’s orders shall be final and have expressly waived the right to object to any

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final order by the Special Master, whether in a dispute between the parties or between the party or

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parties and a non-party. In the event a non-party seeks to exercise rights available under Rule 53(f),

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the Court shall give the parties and non-party notice and an opportunity to be heard; may receive

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evidence; and may adopt or affirm, modify, wholly or partly reject or reverse, or resubmit to the

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Special Master with instructions. Fed. R. Civ. P. 53(f)(1).

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14.

Filing the Record for Review: Any party wishing to preserve the right to appeal any

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final order by the Special Master to the United States Court of Appeal, or any non-party filing any

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objection or motion pertaining to a ruling by the Special Master, shall submit (with such objection or

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motion, or otherwise) any record necessary for review of the Special Master’s order, report, and/or

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recommendation, including any transcripts of proceedings before the Special Master and any

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documents submitted by the parties in connection with the Special Master’s order, report, and/or

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recommendation. Failure to provide the record shall constitute grounds for the Court to overrule the

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objection or deny the motion. See Fed. R. Civ. P. 53(b)(2)(D).

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[PROPOSED] ORDER APPOINTING SPECIAL MASTER
Oracle America, Inc. v. Innovative Technology Distributors LLC et al.
Case No. 5:11-CV-01043-LHK (HRL)

Case5:11-cv-01043-LHK Document134-2 Filed04/05/12 Page5 of 5

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15.

Standard for the Court’s Review: Pursuant to Rule 53(g)(3)-(5), in the event a non-

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party files any objection or motion pertaining to a ruling by the Special Master, the Court shall

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review findings of fact made or recommended by the Special Master de novo. The Court shall

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review de novo any conclusions of law made or recommended by the Special Master. The Court

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will set aside the Special Master’s ruling on a procedural matter only for an abuse of discretion.

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16.

Amendment of Order Appointing Special Master: Pursuant to Rule 53(b)(4), this

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Order appointing a Special Master may be amended at any time after notice to the parties and an

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opportunity to be heard.

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DATED: April 6, 2012
_______________________

______________________________
Honorable Lucy H. Koh
United States District Judge

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[PROPOSED] ORDER APPOINTING SPECIAL MASTER
Oracle America, Inc. v. Innovative Technology Distributors LLC et al.
Case No. 5:11-CV-01043-LHK (HRL)