55 Brake, L.L.C. v. Audi of America, Inc. et al
TRIAL SETTING ORDER. Expert Discovery due by 11/18/2011. Dispositive Motions due by 12/9/2011. Jury Trial set for 2/21/2012 01:30 PM in Boise - Courtroom 3 before Judge B. Lynn Winmill. Telephonic Pretrial Conference set for 2/7/2012 04:00 PM in Boi se Chambers before Judge B. Lynn Winmill. Parties shall contact Dave Metcalf with any serious Daubert issues by 10/28/2011. Parties shall notify the Court by 1/16/2012, that the case has either settled or will definitely go to trial. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
55 BRAKE, LLC,
Case No. 1:CV 08-177-BLW
TRIAL SETTING ORDER
AUDI OF AMERICA, et al.,
On July 7, 2011, the Court’s staff held a status conference for the purpose of
setting a trial date in this matter. Deadlines were discussed, and a dispute arose
over whether dispositive motions would be allowed. The resolution of that dispute
will affect all deadlines, as the Court will explain below.
This case was filed on April 21, 2008. A Markman hearing was held about a
year later and the decision issued about a month after the hearing. Defendant
Volkswagen then filed a motion for summary judgment, alleging that the patent
was invalid. The Court denied that motion, issuing its decision about a month after
the hearing. The Court then issued a Case Management Order (CMO), setting trial
Order Setting Trial and Pretrial Conference - 1
for January 24, 2011, and setting a dispositive motion deadline of September 13,
On June 8, 2010, about three months before that dispositive motion deadline
expired, the parties filed a stipulated motion to strike that deadline, and all others in
the CMO, and hold a bench trial limited solely to the issue of inequitable conduct.
The parties also requested that the bench trial be delayed until after the Federal
Circuit issued its decision in Therasense v. Becton, an en banc case that was
expected to set a new standard for inequitable conduct.
The Court reluctantly agreed despite its fear that the stipulation “could
substantially delay the final resolution of this case.” See Memorandum Decision
(Dkt. 158) at p. 3. The Court moved the trial date three months, from January to
March of 2011. At the urging of the parties, to save them from incurring fees and
costs that might be unnecessary, the Court vacated the deadlines in the CMO
except as they related to inequitable conduct.
Plaintiffs promptly filed a motion for summary judgment alleging the lack of
any evidence of inequitable conduct. The Court heard argument on December 8,
2010, and issued a decision about a month later denying the motion. Shortly
thereafter, the Court issued an Order declaring that it would proceed with the
March trial date even if Therasense had not been decided.
Order Setting Trial and Pretrial Conference - 2
The Court proceeded with trial on March 21, 2011, as scheduled. Following
the trial, the Court allowed further briefing that was received May 2, 2011. Within
a month of receiving that briefing, the Court rendered its decision finding no
If the Court had rejected the stipulation to hold a bench trial limited to
inequitable conduct, this case would have been resolved in January of 2011.
Instead, this case will linger well past a year from that date. With hindsight, the
Court should have either rejected the stipulation or refused to strike the CMO
This case is now over three years old. That is a travesty of justice. Yet
Volkswagen seeks more time to file summary judgment motions.
The Court seriously considered denying Volkswagen’s request. However, it
is true that when the Court vacated the CMO deadlines at the urging of counsel,
there remained about two months of time to file dispositive motions. Given that
the prior period for filing dispositive motions was cut short by about two months, it
would now be unfair to ban the defense from filing any dispositive motions.
Therefore, the Court will reluctantly allow the further filing of dispositive
motions. The Court will expect adherence to the 20-page limit set by Local Rule;
any request for over-length briefs will be denied except upon a showing of absolute
Order Setting Trial and Pretrial Conference - 3
necessity. Given this limit on briefing, the parties should carefully consider what,
if any, issues should be raised as part of a summary judgment motion. Summary
judgment should not be sought on a claim unless it clearly can be resolved as an
issue of law or it truly does not involve any disputed issues of material fact. A
shotgun approach to summary judgment will result in a shotgun decision from the
Court summarily denying the motion.
Furthermore, to avoid delay the Court will not allow oral argument but will
decide the motions on the briefs.
While the filing of dispositive motions will unavoidably add to the delay, the
Court will tighten up the deadlines to move this case to trial as quickly as is
consistent with fair play and substantial justice.
NOW THEREFORE IT IS HEREBY ORDERED that the following
deadlines and procedures shall govern the remainder of this litigation:
September 23, 2011 is the deadline for the submission of all Rule 26
expert reports concerning issues on which a party has the burden of
October 14, 2011, is the deadline for the submission of all response
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October 28, 2011, is the deadline for the submission of all rebuttal
November 18, 2011, is the deadline for the close of all expert
December 9, 2011, is the deadline for filing dispositive motions.
The Court will expect adherence to the 20-page limitation set by Local
Rule and requests for overlength briefs will be denied except upon a
showing of absolute need.
The Court will decide the motions on the briefs without oral
A five-day jury trial shall be set for February 21, 2012, at 1:30 p.m.
in the Federal Courthouse in Boise, Idaho. Beginning on day two,
trial shall begin at 8:30 a.m. and end at 2:30 p.m., with two fifteen
A telephonic pretrial conference shall be held on February 7, 2012,
at 4:00 p.m. Counsel for Plaintiff shall initiate the call. The Court
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can be reached at (208) 334-9145. The purpose of the conference is to
discuss and resolve (1) the legal issues remaining in the case; (2)
evidentiary issues; (3) trial logistics; and (4) any other matter
pertaining to the trial. Not less than twenty days prior to the date of
the pretrial conference, the parties shall communicate and reach
agreement on as many items as possible. The parties shall be prepared
to discuss with the Court those items over which counsel disagrees.
Rule 702 Motions:
In cases involving serious Daubert issues with challenges to expert
witnesses, the parties shall contact Law Clerk Dave Metcalf on or
before October 28, 2011, to determine whether a hearing is necessary.
The parties shall exchange witness lists on or before January 24,
2012. The witness lists shall contain the material listed in F.R.C.P.
26(a)(3)(A)&(B), and shall include a full summary, not just the
subject, of the witnesses’ expected testimony.
Exhibit Lists, Exhibits, Proposed Voir Dire, Proposed Jury Instructions,
Trial Briefs and Motions in Limine:
All exhibit lists, proposed voir dire, proposed jury instructions, trial
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briefs, and motions in limine shall be filed with the Court on or before
January 24, 2012. On the same date the parties shall exchange all
trial exhibits, but shall not provide them to the Court until the day of
trial. Counsel shall only provide the Court with a set of original premarked exhibits. Because of the use of electronic evidence
presentation systems, it is unnecessary to provide any copies. Counsel
may wish to have available in the courtroom a copy of any exhibits
which the Court may find difficult to review through the evidence
presentation system. The exhibit lists shall follow the guidelines set
out in Local Rule 16.3(f) to the extent it is not inconsistent with this
Order. The exhibit lists shall be prepared on form provided by the
Deputy Clerk, with sufficient copies for the Judge, the Deputy Clerk,
and the Law Clerk. Exhibit numbers 1 through 999 shall be reserved
for joint exhibits; exhibit numbers 1000 through 1999 shall be
reserved for plaintiff’s exhibits; exhibit numbers 2000 through 2999
shall be reserved for the first defendant listed on the caption; exhibit
numbers 3000 through 3999 shall be reserved for the second
defendant listed on the caption; and so on. Counsel shall review their
exhibits, determine any duplication, and jointly mark and stipulate to
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the admission of those exhibits that both sides intend to offer and rely
upon. The proposed jury instructions shall follow the guidelines set
out in Local Rule 51.1 to the extent it is not inconsistent with this
Order. Additionally, counsel shall provide a clean copy of the Jury
Instructions to the Court in Word Perfect format and emailed to
The parties agree that they shall notify the Court on or before
January 16, 2012, that the case has either settled or will definitely go
The Court will generally control voir dire, and counsel will be limited
to 20-30 minutes. Counsel are cautioned not to repeat questions
already asked by the Court or other counsel and are advised that the
Court will not permit voir dire which appears intended to influence
the jury rather than explore appropriate concerns with a juror’s ability
to be fair and impartial.
Counsel shall exercise good faith in attempting to reach a stipulation
on undisputed facts and admission of exhibits.
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During trial, the jury will be in the box hearing testimony the entire
trial day between 8:30 a.m. and 2:30 p.m., except for two standard
fifteen minute morning and afternoon recesses.
During the time the jury is in the jury box, no argument, beyond onesentence evidentiary objections, shall be allowed to interrupt the flow
of testimony. Almost all objections should be stated in one to three
words (“hearsay”, “asked & answered”, “irrelevant”, etc.). If counsel
have matters that need to be resolved outside the presence of the jury,
they are to advise the Court and counsel prior to the issue arising
during trial so that it can be heard during a recess, or before or after
the jury convenes. Where the need for such a hearing cannot be
anticipated, the Court will direct the examining counsel to avoid the
objectionable subject and continue on a different line of questioning
so that the objection can be argued and resolved at the next recess. To
avoid late-night sessions, counsel are advised to bring up all
anticipated evidentiary questions in their pretrial briefs.
Counsel shall have enough witnesses ready to ensure a full day of
testimony. If witnesses are unavoidable delayed, counsel shall
promptly notify the court and opposing counsel.
Order Setting Trial and Pretrial Conference - 9
When counsel announce the name of a witness called to testify, the
Court or the clerk will summon the witness forward to be sworn, the
clerk will administer the oath and, after the witness is seated, ask the
witness to state her or his name and spell her or his last name for the
record. I will then indicate to counsel that she or he may inquire of the
Please do not address parties or witnesses (including your own) by her
or his first name unless such familiarity is clearly appropriate, and is
not likely to be offensive to the witness or any juror. In case of doubt,
Your clients and your witnesses should be instructed that they should
always refer to you and opposing counsel by last names.
You are responsible to advise your clients, your witnesses and
everyone associated with your client to avoid all contact with the
jurors. This prohibition includes seemingly innocuous behavior like
riding on an elevator with a juror, saying hello to a juror, or even
acknowledging the juror’s presence.
I try to conduct at least 2 or 3 informal jury instruction conferences
off the record to try and resolve most differences by agreement. Those
Order Setting Trial and Pretrial Conference - 10
sessions will be held at the end of the trial day and may stretch into
the evening. At the end of those sessions, we will have refined the
issues of contention so that I can give you a set of my final
instructions and you can state your objections on the record.
DATED: July 8, 2011
Honorable B. Lynn Winmill
Chief U. S. District Judge
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