Versata Software, Inc., et al v. Ford Motor Company

Filing 230

ORDER Appointing Special Master for Resolving Discovery Disputes. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

FORD MOTOR COMPANY,
Plaintiff/Counter-Defendant,
v.

Case No. 15-10628-MFL-EAS
(consolidated with Case No. 15-cv-11624)
Hon. Matthew F. Leitman

VERSATA SOFTWARE, INC., f/k/a
JURY TRIAL DEMANDED
TRILOGY SOFTWARE, INC.,
TRILOGY DEVELOPMENT GROUP,
INC. AND TRILOGY, INC.,
Defendants/Counter-Plaintiffs.
ORDER APPOINTING SPECIAL MASTER
FOR RESOLVING DISCOVERY DISPUTES
This action concerns a complex intellectual property dispute regarding
computer software, including claims of patent infringement, copyright infringement,
and misappropriation of trade secrets.
Given upcoming expert discovery deadlines, the parties anticipate needing a
forum to present and resolve discovery issues in an expedited manner. Following
consultation with all parties, the Court has concluded that it would benefit from the
appointment of a Special Master to efficiently address these discovery disputes. The
parties recognize the assistance that a Special Master can provide, and they have
jointly requested that the Court appoint Mr. Larry Graham, 701 Fifth Avenue, Suite

4800, Seattle, Washington, 98104, as the Special Master for resolving discovery
issues in this case.
Through this Order, the Court confirms the parties’ selection of Mr. Graham
and appoints him Special Master pursuant to Rule 53. The Court makes this
appointment pursuant to Federal Rule of Civil Procedure 53 (“Rule 53”), and the
appointment is limited to the following protocol, which must proceed with all
reasonable diligence:
1. A party raising a discovery dispute will serve the other party and Mr.
Graham with a single-spaced letter of no more than 3 pages (excluding
attachments) explaining the discovery dispute and the relief sought
(“Opening Letter”). The Opening Letter will not be filed with the Court.
2. Within 4 business days of receiving the Opening Letter, or a different time
upon agreement of the parties, the other party will serve the party raising
the dispute and Mr. Graham with a single-spaced letter of no more than 3
pages (excluding attachments) responding to the Opening Letter
(“Response Letter”). The Response Letter will not be filed with the Court.
3. Promptly after receiving the Response Letter, Mr. Graham shall schedule
a teleconference for the parties and Mr. Graham to discuss the discovery
dispute.

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4. Promptly after the teleconference, Mr. Graham will issue a preliminary
ruling on the discovery dispute (“Preliminary Ruling”). This Preliminary
Ruling will not be filed with the Court and may be communicated to the
parties by e-mail.
5. Within two business days of receiving the Preliminary Ruling, either party
may inform Mr. Graham that it intends to object to the Preliminary Ruling,
together with a summary of the party’s objection (“Preliminary
Objection”).
6. Upon receiving a Preliminary Objection, Mr. Graham will prepare and file
with the Court a Rule 53 Report and Recommendation concerning the
discovery dispute.

The Report and Recommendation will attach as

exhibits the Opening Letter and the Response Letter. Alternatively, or in
addition, Mr. Graham may hold another teleconference in an attempt to
resolve the discovery dispute.
7. If a Report and Recommendation is filed by the Special Master, the
attached opening letter shall be deemed a motion under the Federal Rules
of Civil Procedure and the attached response shall be deemed a response
under those Rules. The Report and Recommendation shall be styled as a
recommendation to grant or deny, in whole or in part, the Motion.

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8. For purposes of clarity, the Special Master shall hear all pending discovery
motions, including Doc. Nos. 210 and 213.
The meet-and-confer requirement of Local Rule 7.1 applies to all discovery
disputes presented to Mr. Graham, and certification of compliance with Rule 7.1
must be made in the Opening Letter.
Mr. Graham shall proceed with all reasonable diligence and shall have the
rights, powers, and duties provided in Rule 53, as limited by this Order.
Mr. Graham shall not communicate ex parte with the individual parties. Any
documents exchanged between Mr. Graham and the Court shall also be timely
served on the parties. Mr. Graham may communicate with the Court ex parte on
procedural matters.
The Court’s review of the report and recommendation Mr. Graham prepares
shall be governed by Federal Rule of Civil Procedure 53(f) as follows: the parties
may file objections to Mr. Graham’s report and recommendation no later than seven
(7) days after a copy is served. The objections may not exceed 10 pages. The parties
may file a response to the other party’s objections no later than seven (7) days, which
shall not exceed 7 pages.
Mr. Graham may use a law clerk or paralegal at his discretion, and Mr.
Graham shall keep detailed records of his time and expenses. Mr. Graham shall
render detailed monthly bills for all fees and expenses at the rate of $485.00 per hour,

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which is his normal hourly rate for his services, and such bills shall be paid promptly
as follows: fifty percent (50%) by Plaintiff and fifty percent (50%) by Defendants.
These monthly bills shall be submitted directly to counsel for the parties who shall
take responsibility for prompt payment by their respective clients.
The Court may modify this Order, if necessary, after providing notice to the
parties and an opportunity to be heard.
IT IS SO ORDERED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: January 25, 2017

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on January 25, 2017, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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