Personalized User Model LLP v. Google Inc.

Filing 535

ORDER Setting Mediation Conferences: A Mediation Conference is set for 1/23/2014 at 10:00 AM before Judge Mary Pat Thynge. SEE ORDER FOR DETAILS. Signed by Judge Mary Pat Thynge on 10/18/13. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

PERSONALIZED USER MODEL LLP,
Plaintiff,
v.
GOOGLE INC., et al.,
Defendants.

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C. A. No. 09-525-LPS

ORDER GOVERNING PATENT MEDIATION
CONFERENCES AND MEDIATION STATEMENTS

THIS ORDER CONTAINS IMPORTANT INFORMATION WHICH SHOULD
BE READ BY COUNSEL PRIOR TO PREPARATION OF A MEDIATION
STATEMENT.
At Wilmington this 18th day of October, 2013.
IT IS ORDERED that:
MEDIATION CONFERENCE
1.

A mediation conference is scheduled for Thursday, January 23, 2014

beginning at .m. All required participants (see ¶ 2) are to report at this time to Courtroom
2B and to remain available until excused by the Court. Dress for the mediation is
business casual.
REQUIRED PARTICIPANTS
2.

Each party must be represented at the mediation conference by the following

required participants: (a) trial counsel; (b) counsel who is/are familiar with the case; and (c)
the party/parties and/or decisionmaker(s) of the parties, who must have full authority to act

on behalf of the parties, including the authority to negotiate a resolution of the matter and
to respond to developments during the mediation process. Full authority means that
those participants on behalf of a party should be able to make independent decisions and
have

a

knowledge

or

understanding

of

the

dispute

and/or

the

business

objectives/operations of their company to generate and consider solutions and/or to be able
to address the negotiation dynamics in mediation. It is not just settlement authority, that
is, to make an offer or to accept an amount.
In-person attendance at the mediation conference by the required participants
described above is required unless otherwise authorized by the Court. Any request to
modify this requirement shall be made in writing to the Magistrate Judge, with a copy to all
counsel or pro se parties, no later than fourteen (14) days before the mediation
conference.
CONTACT INFORMATION FOR REQUIRED PARTICIPANTS
3.

(a)

No later than the date on which mediation statements are due (see

¶ 4 below), counsel shall provide to the court in a writing separate from the mediation
statement, for each attorney who will be attending the mediation conference: (i) a direct dial
telephone work number, (ii) a cell or home telephone number, and (iii) an electronic mail
address where the attorney can be regularly reached. Unrepresented parties shall provide
at least one of these three forms of contact information.
EXCHANGE OF LIST OF PARTICIPANTS ATTENDING MEDIATION
(b)

No later than the date on which the mediation statements are due

(see ¶ 4 below), counsel shall submit a list of all participants, including attorney and non-

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attorney representatives, who will be attending the mediation on behalf of their party, to the
opposing party or parties.
CONFIDENTIAL MEDIATION STATEMENTS
4.

On or before Monday, January 13, 2014, AN ORIGINAL and ONE COPY of

a confidential mediation statement containing all of the information required by ¶ 6 shall be
submitted ONLY to the Magistrate Judge. The mediation statements shall not be filed
with the Clerk's Office, nor emailed to Chambers without permission, but shall be
delivered to the Clerk’s Office in an envelope addressed to U. S. Magistrate Judge Mary
Pat Thynge and marked “CONFIDENTIAL MEDIATION STATEMENT.” The statements
shall not be exchanged among the parties or counsel (unless the parties so desire), shall
not be provided to the trial judge, and shall not become part of the record in this matter.
Mediation statements shall NOT be electronically filed since they are not part of the
Court record.
5.

The mediation statements may be in memorandum or letter form. They must

be double-spaced, in no less than a 12-point font, and be no longer than twenty (20)
pages.
6.

The mediation statements must contain each of the following headings and

must contain a discussion of each of the topics described below:
a)

“The Parties”: provide a description of who the parties are, their

relationship, if any, to each other, and by whom each party is represented, including the
identity of all individuals who will be participating on behalf of a party during the mediation
conference.

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b)

“Factual Background”: provide a brief factual background, clearly

indicating which material facts are not in dispute and which material facts remain in dispute.
c)

“Summary of Applicable Law”: provide a brief summary of the law,

including applicable statutes, cases and standards. Copies of any unreported decisions
(including decisions from this jurisdiction) that counsel believes are particularly relevant
should be included as exhibits (see ¶ 7).
d)

“Honest Discussion of Strengths and Weaknesses”: provide an

honest discussion of the strengths and weaknesses of the party's claims and/or defenses.
e)

“Settlement Efforts”: provide a brief description of prior settlement

negotiations and discussions, including the most recent offers or demands exchanged
between the parties and the reasons for rejection, and the party's assessment as to why
settlement has not been reached.
f)

“Settlement Proposal”: describe the party's proposed term(s) for a

resolution. Further, identify any interests or issues not directly involved in this matter that
may frustrate or further settlement. If the party has any suggestions as to how the Court
may be helpful in reaching a resolution, such suggestions should also be described.
g)

“Fees and Costs”: list separately each of the following: (i) attorneys’

fees and costs incurred to date; (ii) other fees and costs incurred to date; (iii) good faith
estimate of additional attorneys’ fees and costs to be incurred if this matter is not settled;
and (iv) good faith estimate of additional other fees and costs to be incurred if this matter
is not settled.
In addition to the required topics described above, and provided that the

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mediation statement complies with the page limit stated above, counsel are encouraged
to address any other matter they believe may be of assistance to the Court.
7.

Crucial or pertinent documents may be submitted as exhibits to the mediation

statement. Counsel are cautioned to limit such exhibits.
CONFIDENTIALITY
8.

The contents of the mediation statements and the mediation conference

discussions, including any resolution or settlement, shall remain confidential, shall
not be used in the present litigation nor any other litigation (whether presently
pending or filed in the future), and shall not be construed as nor constitute an
admission. Breach of this provision shall subject the violator to sanctions.
EX PARTE CONTACTS
9.

Before, during, and after the scheduled mediation conference, the Court may

find it necessary and useful to communicate with one or more parties outside the presence
of the other party or parties.
REQUEST FOR WIFI ACCESS
10.

WiFi Access: Permission to obtain WiFi access will only be given for the

date(s) of mediation. Since only one login and one password will be provided, all counsel
requesting WiFi are to contact counsel for plaintiff, who in turn will submit one request
through the Court’s website. Permission will not be given if the request is not timely made.
The WiFi login and password will be provided on the mediation date. Do not call
chambers to request this information ahead of time. It is the responsibility of Delaware
counsel for plaintiff(s) to complete and submit the required form on the website to obtain

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authorization. Failure to submit the request in accordance with the Court’s website will
result in the request being denied.
OBLIGATION OF GOOD FAITH PARTICIPATION
11.

The required participants shall be available and accessible throughout the

mediation process. The Court expects the parties' full and good faith cooperation with the
mediation process. In particular, the Court expects both the lawyers and the party
representatives to be fully prepared to participate. The Court encourages all participants
to keep an open mind in order to reassess their previous positions and to find creative
means for resolving the dispute.
AVOIDANCE OF SANCTIONS
12.

All counsel are reminded of their obligations to read and comply with

this Order. Delaware counsel are reminded of their obligations to inform out-of-state
counsel of this Order. To avoid the imposition of sanctions, counsel shall advise the Court
immediately of any problems regarding compliance with this Order.
/s/ Mary Pat Thynge
UNITED STATES MAGISTRATE JUDGE

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