Aniplex, Incorporated v. Upper Deck Company

Filing 249

MINUTES OF PROCEEDINGS - Telephonic Calendar Call held on 8/24/2011 before Judge Howard D. McKibben. Crtrm Administrator: Paris Rich; Pla Counsel: Michael Firestein, James Murphy, Joshua Pollack; Def Counsel: John Naylor, Mededith Markwell, Craig Nichols, Alex Tomasevic; Proposed Def Counsel: J. Stephen Peek and Robert Cassity; Court Reporter: Kathryn French; Time of Hearing: 9:30 AM to 10:44 AM; Courtroom: 4;See attached Minutes for details.(Copies have been distributed pursuant to the NEF - PR)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

ANIPLEX, INCORPORATED,
a Japanese corporation,
Plaintiff and
Counter-Defendant,
vs.
THE UPPER DECK COMPANY,
a Nevada corporation,
Defendant and
Counterclaimant.

PROCEEDINGS:

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2:08-cv-00442-HDM-PAL

MINUTES OF THE COURT

August 24, 2011

Telephonic Calendar Call; [235] Stipulation for Substitution
of Attorneys; and [242] The Upper Deck Company’s
Emergency Motion to Continue Trial

PRESENT:
THE HONORABLE HOWARD D. McKIBBEN, SENIOR U.S. DISTRICT JUDGE
Deputy Clerk: Paris Rich

Court Reporter: Kathryn French

Counsel for Plaintiff:

Michael Firestein, James Murphy and Joshua Pollack

Counsel for Defendant:

John Naylor, Meredith Markwell, Craig Nicholas and
Alex Tomasevic

Proposed Counsel for Defendant: J. Stephen Peek and Robert Cassity
At 9:30 a.m., the Court convenes.
Counsel are present telephonically.

The Court recites matters on calendar this date.

The Court addresses [242] Motion. Mr. Nicholas, on behalf of Defendant, presents
statements. Court and counsel confer regarding roles of lead and assisting counsel on
behalf of the Defendant.
Mr. Naylor presents statements in support of continuance of trial. The Court observes
there is nothing contained in the record to indicate Mr. Naylor, or his law firm, was in any
way responsible for [242] Motion.

ANIPLEX v. THE UPPER DECK
August 24, 2011
2:08-cv-00442-HDM-PAL
Page 2 of 4
_______________________________________________________________________
Mr. Peek presents statements regarding his understanding of Holland & Hart's role as lead
counsel on behalf of the Defendant in this matter.
The Court and counsel further confer regarding [235] Stipulation, [242] Motion and the
Court’s possible waiver of the Local Rule with respect to local counsel.
Mr. Peek confirms the Defendant has been fully informed regarding the possibility of a
denial of [242] Motion. Additionally, Mr. Peek states if the Court is inclined to approve
[235] Stipulation and deny [242] Motion, he would do his best to be prepared for trial.
Mr. Peek requests to be able to consult with his client to fully determine any preference
either for waiver of the Local Rule with the Defendant proceeding to trial solely with the
Nicholas & Butler firm, or for continuance with the Holland & Hart firm as lead counsel
assisted by Nicholas & Butler. The Court deems Mr. Peek’s request is appropriate.
Mr. Firestein, on behalf of Plaintiff, states no position as to [235] Stipulation. With
respect to [242] Motion, Mr. Firestein presents statements in opposition.
The Court inquires of Mr. Firestein and Mr. Nicholas regarding the number of trial
witnesses, both within and outside of the United States, and the issue of witness
availability. Mr. Firestein and Mr. Nicholas respond.
Mr. Nicholas, on behalf of the Defendant, clarifies if the Court is inclined to deny [242]
Motion, the Defendant will remain with Mr. Peek acting as lead trial counsel in this
matter with the Nicholas & Butler firm assisting.
The Court recites findings as to [235] Stipulation. IT IS ORDERED, [235] Stipulation
for Substitution of Attorneys is APPROVED. J. Stephen Peek and Robert Cassity
shall appear as co-counsel with Mr. Nicholas and Mr. Tomasevic on behalf of
Defendant. IT IS SO ORDERED.
The Court recites further comments as to trial readiness and pending motions in limine.
The Court recites findings as to [242] Motion. IT IS ORDERED, [242] Motion is
DENIED. Jury Trial in this matter shall commence on Monday, September 12, 2011
at 8:30 a.m. in LV Courtroom 7C before Judge Howard D. McKibben. IT IS SO
ORDERED.
IT IS FURTHER ORDERED, Mr. Peek is hereby granted leave, even up to the day
prior to trial, to apply to the Court to be relieved as local counsel on behalf of the
Defendant. In the event such application is presented, and thereafter granted, Mr.
Nicholas and Mr. Tomasevic shall proceed to trial as set on Monday, September 12,
2011 as 8:30 a.m. on behalf of the Defendant. IT IS SO ORDERED.

ANIPLEX v. THE UPPER DECK
August 24, 2011
2:08-cv-00442-HDM-PAL
Page 3 of 4
________________________________________________________________________
The Court advises counsel shall make arrangements to meet with the Courtroom Deputy
on the morning of Friday, September 9, 2011 in LV Courtroom 7C to pre-test all
electronic equipment anticipated for use during trial.
The Court addresses further procedural trial matters and the streamlining of deposition
testimony. The Court also confirms the prospective jurors in this matter will be brought
into LV Courtroom 7C at 10:30 a.m. on September 12, 2011.
Mr. Firestein inquires, and the Court and parties thereafter confer, regarding video
testimony, anticipated daily trial schedule, Las Vegas venue, and rulings on pending
motions in limine. Specifically addressed is [227] Plaintiff’s Motion in Limine to
Exclude Testimony Regarding Aniplex’s Alleged Lack of Rights to the Original Kiba
Property and the substantial impact such ruling will have on the video testimony at trial.
The Court and counsel further confer regarding streamlining objections of video
testimony and transcripts. The Court confirms it would like the testimony bracketed out
of the transcripts for the Court’s use. The Court and counsel further confer regarding
reaching agreement prior to submitting the written depositions to the Court.
The Court and counsel discuss the submission of a written joint statement of the case. IT
IS ORDERED, the parties shall submit a written joint statement to the Court’s
Chambers in Reno, Nevada no later than Wednesday, September 7, 2011. Such
written statement shall be limited to 1.5 pages. In the event there is no agreement by
the parties as to a joint statement, each party shall submit a competing statement.
IT IS SO ORDERED.
The Court addresses additional trial procedures including, preinstruction of the jury, case
overview to the jury, limited counsel voir dire, no jury questionnaires, use of pre-admitted
exhibits in opening statements, courtroom etiquette by counsel, opening statements to be
limited to 45 minutes per side, and the display exhibits during video depositions.
Mr. Firestein recites oral motion requesting a waiver of the requirement for the Plaintiff’s
local counsel to be present in daily trial proceedings. Mr. Murphy inquires further as to
whether the Court will require a written submission in conjunction with Mr. Firestein’s
oral request this date. IT IS ORDERED, Plaintiff’s oral motion is GRANTED. The
Plaintiff’s local counsel shall not be required to be present daily during trial. IT IS
SO ORDERED.
The Court and counsel confer regarding foreign witnesses and order of witnesses. Mr.
Firestein presents additional statements as to three specific witnesses (McWilliam,
Sepenuk, and Oshima) and their anticipated live testimony, rather than the necessity of
the Plaintiff’s designations. Mr. Firestein, Mr. Tomasevic and Mr. Peek confer further.
The Court recites statements and confirms, if necessary, these issues will be determined at
the time of trial.

ANIPLEX v. THE UPPER DECK
August 24, 2011
2:08-cv-00442-HDM-PAL
Page 4 of 4
________________________________________________________________________
Mr. Firestein inquires as to the Court’s signature on [215] Proposed Joint Pretrial Order.
The Court indicates it will sign and approve [215] Proposed Joint Pretrial Order this date.
The Court inquires regarding the parties’ stipulated Japanese translator for purposes of
trial. Mr. Firestein presents statements and confirms this issue remains unresolved. IT
IS ORDERED, no later than Tuesday, August 30, 2011, the parties shall file a
stipulation setting forth the identity of the agreed upon Japanese translator. IT IS
SO ORDERED.
The Court further states the jury will be given a preliminary instruction that they will be
bound by the translation given to them by the Japanese translator set forth in the parties’
stipulation.
Mr. Peek requests a further status conference in this matter prior to trial. The Court and
counsel confer.
IT IS ORDERED, a Telephonic Status Conference is set for Wednesday, September
7, 2011 at 11:00 a.m. in Reno Courtroom 4 before Judge Howard D. McKibben.
With no objection by the Plaintiff, Mr. Peek shall be allowed to appear in Reno
Courtroom 4 for the Telephonic Status Conference on Wednesday, September 7,
2011 at 11:00 a.m. IT IS SO ORDERED.
The Court directs In the event a settlement is reached, the parties shall contact the Court
forthwith.
At 10:44 a.m., the Court adjourns.
LANCE S. WILSON, CLERK

By: /s/ Paris Rich
Deputy Clerk