Weather Underground, Incorporated v. Navigation Catalyst Systems, Incorporated et al

Filing 157

RESPONSE to 152 MOTION to Compel Documents Considered by Testifying Expert filed by Weather Underground, Incorporated. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A - filed under seal, # 3 Exhibit B, # 4 Exhibit C) (Schaefer, Enrico)[FILED IN ERROR; INCORRECT DOCUMENT ASSOCIATED; TO BE RE-E-FILED] Modified on 3/1/2011 (DPer).

Weather Underground, Incorporated v. Navigation Catalyst Systems, Incorporated et al

Doc. 157 Att. 4

Dockets.Justia.com

April 28, 2010

SUPREME COURT OF THE UNITED STATES

ORDERED: 1. That the Federal Rules of Civil Procedure be, and they hereby are, amended by including therein amendments to Civil Rules 8, 26, and 56, and Illustrative Civil Form 52. [See infra., pp. .]

2. That the foregoing amendments to the Federal Rules of Civil Procedure shall take effect on December 1, 2010, and shall govern in all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending. 3. That THE CHIEF JUSTICE be, and hereby is, authorized to transmit to the Congress the foregoing amendments to the Federal Rules of Civil Procedure in accordance with the provisions of Section 2072 of Title 28, United States Code.

AMENDMENTS TO THE FEDERAL
RULES OF CIVIL PROCEDURE
Rule 8. General Rules of Pleading ***** (c) Affirmative Defenses. (1) In General. In responding to a pleading, a

party must affirmatively state any avoidance or affirmative defense, including: · accord and satisfaction; · arbitration and award; · assumption of risk; · contributory negligence; · duress; · estoppel; · failure of consideration; · fraud; · illegality;

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· injury by fellow servant; · laches; · license; · payment; · release; · res judicata; · statute of frauds; · statute of limitations; and · waiver.
*****
Rule 26. Duty to Disclose; General Governing Discovery (a) Required Disclosures. ***** (2) Disclosure of Expert Testimony. (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must Provisions

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disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. (B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or

ordered by the court, this disclosure must be accompanied by a written report --

prepared and signed by the witness -- if the witness is one retained or specially

employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them;

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(ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or

ordered by the court, if the witness is not

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required to provide a written report, this disclosure must state: (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify. (D) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made: (i) at least 90 days before the date set for trial or for the case to be ready for trial; or

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(ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by

another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's disclosure. (E) Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e). ***** (b) Discovery Scope and Limits. ***** (3) Trial Preparation: Materials. (A) Documents Ordinarily, a and party Tangible may not Things. discover

documents and tangible things that are

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7

prepared in anticipation of litigation or for trial by or for another party or its

representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule

26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, obtain without their undue

hardship,

substantial

equivalent by other means. (B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental

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impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation. (C) Previous Statement. Any party or other

person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either: (i) a written statement that the person has signed or otherwise adopted or

approved; or (ii) a contemporaneous electrical, stenographic, or other

mechanical,

recording -- or a transcription of it --

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that recites substantially verbatim the person's oral statement. (4) Trial Preparation: Experts. (A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B)

requires a report from the expert, the deposition may be conducted only after the report is provided. (B) Trial-Preparation Protection for Draft

Reports or Disclosures.

Rules 26(b)(3)(A)

and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.

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(C) Trial-Preparation

Protection

for

Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the

communications, except to the extent that the communications: (i) relate to compensation for the expert's study or testimony; (ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or

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(iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed. (D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by

interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. party may do so only: (i) as provided in Rule 35(b); or (ii) on showing exceptional circumstances under which it is impracticable for the But a

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party to obtain facts or opinions on the same subject by other means. (E) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery: (i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and (ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining opinions. ***** Rule 56. Summary Judgment (a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for the expert's facts and

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summary judgment, identifying each claim or defense -- or the part of each claim or defense -- on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion. (b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery. (c) Procedures. (1) Supporting Factual Positions. A party

asserting that a fact cannot be or is genuinely disputed must support the assertion by:

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(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to

support the fact. (2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

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(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record. (4) Affidavits or Declarations. An affidavit or

declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. (d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.

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(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials -- including the facts considered undisputed -- show that the movant is entitled to it; or (4) issue any other appropriate order. (f) Judgment Independent of the Motion. After

giving notice and a reasonable time to respond, the court may: (1) grant summary judgment for a nonmovant;

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(2) grant the motion on grounds not raised by a party; or (3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute. (g) Failing to Grant All the Requested Relief. If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact -- including an item of damages or other relief -- that is not genuinely in dispute and treating the fact as established in the case. (h) Affidavit r Declaration Submitted in Bad o Faith. If satisfied that an affidavit or declaration

under this rule is submitted in bad faith or solely for delay, the court -- after notice and a reasonable time to respond -- may order the submitting party to pay the other party the reasonable expenses, including

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attorney's fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.

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Form 52. Report of the Parties' Planning Meeting. (Caption -- See Form 1.) 1. 2. 3. The following persons participated in a Rule 26(f) conference on state the method of conferring : date by

Initial Disclosures. The parties [have completed] [will complete by date ] the initial disclosures required by Rule 26(a)(1). Discovery Plan. The parties propose this discovery plan: (Use separate paragraphs or subparagraphs if the parties disagree.) (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) Discovery will be needed on these subjects: (describe) Disclosure or discovery of electronically stored information should be handled as follows: (briefly describe the parties' proposals, including the form or forms for production.) The parties have agreed to an order regarding claims of privilege or of protection as trial-preparation material asserted after production, as follows: (briefly describe the provisions of the proposed order.) (Dates for commencing and completing discovery, including discovery to be commenced or completed before other discovery.) (Maximum number of interrogatories by each party to another party, along with dates the answers are due.) (Maximum number of requests for admission, along with the dates responses are due.) (Maximum number of depositions for each party.) (Limits on the length of depositions, in hours.) (Dates for exchanging reports of expert witnesses.) (Dates for supplementations under Rule 26(e).)

4.

ther Items: O *****