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`LAST REVISED MARCH 17, 2016.
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`SUPPLEMENTAL ORDER TO
`ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE
`IN CIVIL CASES BEFORE JUDGE WILLIAM ALSUP
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`INTRODUCTION
`The purpose of this supplemental order is to guide the parties on recurring practical
`questions that arise prior to trial and to impose certain requirements for the conduct of the
`case. Counsel must please read this order and follow it.
`SERVICE OF THIS ORDER
`For cases originating in this Court, plaintiff(s) must serve this order and the order
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`setting the initial case management conference (along with any other required pleadings) on each
`defendant. For cases removed from state court, the removing defendant(s) must serve this order
`and the order setting the initial case management conference (along with any other required
`pleadings) immediately on each and every party that has previously appeared or that appears
`within thirty days after removal. Thereafter, any existing party to the action that brings a new
`party into the action must immediately serve a copy of this order and the order setting the initial
`case management conference (along with any other required pleadings) on the new party.
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`For the Northern District of California
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`United States District Court
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`Case 3:16-cv-02433-WHA Document 16 Filed 05/18/16 Page 2 of 10
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`CASE MANAGEMENT CONFERENCE
`The parties will please address the standardized items in the court-wide format
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`for the joint case management statement. This is available at the Standing Order For all Judges
`of the Northern District of California — Contents of Joint Case Management Statements.
`Please file (electronically or manually depending on your case) at least SEVEN CALENDAR DAYS
`prior to the case management conference. Each party shall be represented at the case
`management conference by counsel prepared to address all such matters and with authority to
`enter stipulations and to make admissions.
`3.
`In the joint statement for the initial case management conference, any law firm
`with more than fifty lawyers nationwide must submit a specific plan for how it intends, in this
`case, to provide opportunities to junior lawyers (six years or fewer years out of law school) to
`argue motions in court, to take depositions, and to examine witnesses at trial. Specific motions,
`depositions, and junior lawyers must be identified. Please state whether it would be useful to
`require client representatives to attend the upcoming case management conference where this
`subject will be discussed.
`Pursuant to FRCP 26(d), Rule 34 requests may be served more than TWENTY-
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`ONE DAYS after service of the complaint on a party. The request is considered to have been
`served at the Rule 26(f) conference. As soon as a party has notice of this order, however, the
`party shall take such affirmative steps as are necessary to preserve evidence related to the issues
`presented by the action, including, without limitation, interdiction of any document-destruction
`programs and any ongoing erasures of e-mails, voice mails, and other electronically-recorded
`material.
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`ELECTRONIC CASE FILING — LODGING HARD COPIES WITH CHAMBERS
`In all “E-Filing” cases, in addition to filing papers electronically, the parties are
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`required to lodge for chambers one paper copy of each document that is filed electronically.
`These printed copies shall be marked “Chambers Copy — Do Not File” and shall be in an
`envelop clearly marked with the judge’s name and case number. It shall be delivered in
`accordance with Civil Local Rule 5-1(e)(7). For the final pretrial conference, please follow
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`For the Northern District of California
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`United States District Court
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`Case 3:16-cv-02433-WHA Document 16 Filed 05/18/16 Page 3 of 10
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`Guidelines for Trial and Final Pretrial Conference In Civil Jury Cases Before the Honorable
`William Alsup.
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`SETTING MOTIONS FOR HEARING
`Counsel need not request a motion hearing date and may notice non-discovery
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`motions for any Thursday (excepting holidays) at 8:00 a.m. The Court sometimes rules on the
`papers, issuing a written order and vacating the hearing. If a written request for oral argument is
`filed before a ruling, stating that a lawyer of four or fewer years out of law school will conduct
`the oral argument or at least the lion’s share, then the Court will hear oral argument, believing
`that young lawyers need more opportunities for appearances than they usually receive.
`FORM OF SUBMISSIONS
`On summary judgment motions, joint statements of undisputed facts are not
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`required but are helpful if completely agreed upon. Please do not file separate statements of
`“undisputed facts.”
`8.
`Reply declarations are disfavored. Opening declarations should set forth all facts
`on points foreseeably relevant to the relief sought. Reply papers should not raise new points that
`could have been addressed in the opening.
`9.
`The title of the submission must be sufficient to alert the Court to the relief
`sought; for example, please do not bury a request for continuance in the body of a memorandum.
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`All submissions filed with the Court shall include on the cover sheet the date and
`time of the hearing or conference. Counsel should include their facsimile transmission numbers
`along with their telephone numbers on their papers.
`DISCOVERY
` The following paragraphs on discovery provide counsel and the parties with
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`views and guidelines of Judge Alsup so that they can plan accordingly. For good cause, the
`parties are invited to propose any modifications in their joint case management conference
`statement. Unless and until modified, however, the following provisions shall supplement the
`requirements of the Federal Rules of Civil Procedure and the local rules.
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`For the Northern District of California
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`United States District Court
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`Case 3:16-cv-02433-WHA Document 16 Filed 05/18/16 Page 4 of 10
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`In responding to requests for documents and materials under FRCP 34, all parties
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`shall affirmatively state in a written response the full extent to which they will produce materials
`and shall, promptly after the production, confirm in writing that they have produced all such
`materials so described that are locatable after a diligent search of all locations at which such
`materials might plausibly exist. It is not sufficient to state that “responsive” materials will be or
`have been produced. Such a response leaves open the distinct possibility that other responsive
`materials have not been produced.
`13.
`In searching for responsive materials in connection with FRCP 34 requests or for
`materials required to be disclosed under FRCP 26(a)(1), parties must search computerized files,
`e-mails, voice mails, work files, desk files, calendars and diaries, and any other locations and
`sources if materials of the type to be produced might plausibly be expected to be found there.
`The Court has found that certain basic information normally learned by counsel anyway should
`be made available to the other side at the time of production, as if it were a response to a
`standing interrogatory, as follows. At the time of the production, the responding party should
`provide a written list to the requesting party setting forth in detail each specific source and
`location searched. The list must also identify, by name and position, all persons conducting the
`search and their areas of search responsibility. The producing party shall also provide a list
`describing the specific source for each produced item as well as for each item withheld on a
`ground of privilege, using the unique identifying numbers to specify documents or ranges.
`Materials produced in discovery should bear unique identifying control numbers on each page.
`14.
` To the maximum extent feasible, all party files and records should be retained
`and produced in their original form and sequence including file folders, and the originals should
`remain available for inspection by any counsel on reasonable notice.
`15.
`Except for good cause, no item shall be received as case-in-chief evidence if the
`proponent has failed to produce it in response to a reasonable and proper discovery request
`covering the item, regardless of whether any discovery motion was made. A burden or
`overbreadth or similar objection shall not be a valid reason for withholding requested materials
`actually known to counsel or a party representative responsible for the conduct of the litigation.
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`For the Northern District of California
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`United States District Court
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`Case 3:16-cv-02433-WHA Document 16 Filed 05/18/16 Page 5 of 10
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`Privilege logs shall be promptly provided and must be sufficiently detailed and
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`informative to justify the privilege. See FRCP 26(b)(5). No generalized claims of privilege or
`work-product protection shall be permitted. With respect to each communication for which a
`claim of privilege or work product is made, the asserting party must at the time of assertion
`identify:
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`all persons making or receiving the privileged or protected
`(a)
`communication;
`(b)
`the steps taken to ensure the confidentiality of the communication,
`including affirmation that no unauthorized persons have received the
`communication;
`(c)
`the date of the communication; and
`(d)
`the subject matter of the communication.
`Failure to furnish this information at the time of the assertion will be deemed a waiver of the
`privilege or protection. The log should also indicate, as stated above, the location where the
`document was found.
`17.
`Absent extraordinary circumstances, counsel shall consult in advance with
`opposing counsel and unrepresented proposed deponents to schedule depositions at
`mutually-convenient times and places. That some counsel may be unavailable shall not,
`however, be grounds for deferring or postponing a deposition if another attorney from the
`same firm or who represents a party with similar interests to that witness is able to attend.
`Ordinarily, if one side desires a prompt deposition, the other side is expected to agree to dates
`falling within thirty days of the request. On the other hand, rarely should one side expect the
`other side to agree to a deposition sooner than seven days of the request.
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`If any objection to a request for materials is overruled, and if the disputed request
`was due and pending at the time of a deposition, the withholding party or counsel must, at the
`request of any other party, re-produce all deponents under its control or represented by them for
`further deposition examination as to any new materials produced in response that are germane
`to that deponent and must bear the expense of doing so. A party objecting to producing
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`For the Northern District of California
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`United States District Court
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`Case 3:16-cv-02433-WHA Document 16 Filed 05/18/16 Page 6 of 10
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`requested materials may not use the existence of its own objections as a basis for postponing
`any deposition unless such party promptly meets and confers and then, if failing to reach an
`agreement, seeks to bring a prompt motion for a protective order.
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`Counsel and parties shall comply with FRCP 30(d)(1). Deposition objections
`must be as to privilege or form only. Speaking objections are prohibited. Under no
`circumstances should any counsel interject, “if you know,” or otherwise coach a deponent.
`When a privilege is claimed, the witness should nevertheless answer questions relevant to the
`existence, extent or waiver of the privilege, such as the date of a communication, who made the
`statement, to whom and in whose presence the statement was made, other persons to whom the
`contents of the statement have been disclosed, and the general subject matter of the statement.
`Private conferences between deponents and attorneys in the course of examination, including a
`line of related questions, are improper and prohibited except for the sole purpose of determining
`whether a privilege should be asserted.
`20.
` Deponents and their counsel must make a good-faith effort to prepare for
`depositions and to refresh witness memories on important matters in the suit about which the
`witness reasonably should be expected to have knowledge. Deponents who claim to lack
`recollection during their deposition but who later claim at trial to have had their memories
`refreshed in the interim, may be, among other things, impeached with their previous failures of
`recollection during their depositions or be subject to preclusion. In preparing deponents,
`defending counsel shall segregate and retain all materials used to refresh their memories and
`shall provide them to examining counsel at the outset of the deposition.
`21.
`To the maximum extent feasible, deposition exhibits shall be numbered in a
`simple manner that will allow the same numbering at trial. In discovery, counsel shall agree on
`blocks of exhibit numbers to be used by the respective parties. Identical exhibits should not be
`re-marked, but various versions of the same document, such as copies with hand notes added,
`should be separately marked if used. See Local Rule 30-2(b)(3).
`22.
`FRCP 26(a)(2)(B) requires disclosure of all opinions, bases, reasons and other
`information considered by an expert. Counsel shall preserve all drafts of expert reports
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`For the Northern District of California
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`United States District Court
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`Case 3:16-cv-02433-WHA Document 16 Filed 05/18/16 Page 7 of 10
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`(partial or complete) and notes and other evidence of communications with experts (or with
`any intermediaries between counsel and the experts) on the subject of this actual or potential
`testimony, and shall instruct their experts and any intermediaries to do likewise. These
`materials, however, need not be produced absent the showing required by FRCP 26(b)(3)
`and (4).
`23. With respect to depositions under FRCP 30(b)(6), the fundamental purpose is to
`allow a party to notice a deposition by subject matter, thereby requiring the respondent to
`designate and to produce one or more organization witnesses knowledgeable on the designated
`topic, a useful procedure when the roles of percipient witnesses controlled by an adverse party
`are unknown. In some cases, however, counsel routinely appear to notice
`Rule 30(b)(6) depositions on numerous and wide-ranging topics, including even the basis for
`“contentions” made by adverse parties. To obviate disputes and to give guidance, these
`guidelines will be observed:
`(a) Without a prior order increasing the limit, a party may seek
`Rule 30(b)(6) depositions from another party on up to a total of ten subject
`matters (for the entire case) described with “reasonable particularity.” In framing
`the subjects, it is normally improper to ask for Rule 30(b)(6) deponents to testify
`concerning the entire basis of a claim or defense. On the other hand, examples of
`proper subjects, which would require the respondent to find and to produce
`knowledgeable deponents, include “the time line of research and development
`leading to the invention in question” or “the efforts undertaken by defendant to
`locate documents responsive to plaintiff’s document request.” The notice should
`be directed at discovering percipient facts in the possession of the adverse party,
`not at forcing a supposed “fact witness” to appear and defend the entire thesis of a
`claim or defense. If a notice includes an overbroad topic, the overbroad topic
`shall be unenforceable and may not be later replaced with a proper topic.
`(b)
`Each witness-designee deposed for one half-day or more in a
`Rule 30(b)(6) deposition shall count as a single deposition for purposes of the
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`For the Northern District of California
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`United States District Court
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`Case 3:16-cv-02433-WHA Document 16 Filed 05/18/16 Page 8 of 10
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`deposition limit under FRCP 26 or under any case management order setting a
`limit on the number of depositions. A corporate designee may, immediately after
`being deposed on the stated subject, be deposed in his or her individual capacity.
`Both such sessions shall count together as a single deposition (although they
`should be separately transcribed). If two designees, to take another example, are
`interrogated, each for one half-day or more, then they count as two depositions.
`(c)
`If an organization cannot reasonably locate a witness to testify
`based on personal knowledge, there is no requirement under Rule 30(b)(6) for the
`organization to “woodshed” or to “educate” an individual to testify on the subject.
`If the organization does not produce any such deponent, however, the
`organization may not present case-in-chief evidence at trial or on summary
`judgment on that topic from any witness it could have so designated.
`(d)
`Rule 30(b)(6) testimony never constitutes an irrebuttable judicial
`admission. It will normally, however, be evidence admissible against the
`organization producing the witness. The jury may, upon request, be instructed on
`the significance of the testimony under Rule 30(b)(6).
`24.
`If a dispute arises during a deposition and involves either a persistent obstruction
`of the deposition or a refusal to answer a material question on a ground other than privilege,
`counsel may attempt to arrange a telephone conference with the Court through the courtroom
`deputy, Dawn Logan, at 415-522-2020. Any such conference should be attended by the same
`court reporter recording the deposition.
`25.
`All other requests for discovery relief must first be summarized in a letter no
`longer than three pages from the party seeking relief after having met and conferred. Up to
`twelve pages of attachments may be added. In the letter, counsel should identify themselves in
`the signature block as “counsel for ___________.” The letter should be electronically-filed in
`the official file along with the discovery-dispute requests and responses, as well as any timely
`letter cancelling the hearing if settlement is reached. (Please note that with all communications
`with the Court by e-filing, a hard copy must be lodged in the Court’s mail box in the Clerk’s
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`For the Northern District of California
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`United States District Court
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`Case 3:16-cv-02433-WHA Document 16 Filed 05/18/16 Page 9 of 10
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`Office on the sixteenth floor in the time frame requested by local rule.) The Court will then
`advise the parties whether a response, written motion or a telephone conference or court hearing
`will be required. After the telephone conference or hearing, counsel should submit their
`proposed order (agreed as to form) by e-filing it. This paragraph applies only to cases wherein
`discovery is being supervised by the district judge rather than by a magistrate judge or special
`master.
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`DISCLOSURES
`Apart from discovery, Rule 26 requires certain automatic disclosures and requires
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`them to be made in a timely manner. Under Rule 37(c), untimely-disclosed materials may not be
`used at trial or on summary judgment unless the delay in disclosure is “harmless” or unless
`“substantial justification” for the delay is shown.
`COMMUNICATIONS WITH CHAMBERS
`Please do not send any letters to the Court (except for requests for discovery
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`conferences, short cover letters for dismissals, orders agreed-upon as to form, or chambers
`copies of electronically-filed documents). When corresponding with the Court by letter, always
`identify whom you represent. Please do not fax or messenger anything to chambers without
`advance permission specific to the item. Please e-file all submissions to the Court and make sure
`a hard copy is lodged in the Court’s mail box in the Clerk’s Office on the sixteenth floor within
`the time frame requested by local rule.
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`You may contact the courtroom deputy, Dawn Logan (on the sixteenth floor in
`the Clerk’s Office), at 415-522-2020 with appropriate inquiries. Except for the letters described
`above, please do not attempt to make contact by telephone or any other ex parte means with
`chambers staff.
`CROSS REFERENCE TO OTHER STANDING ORDERS AND GUIDELINES
`The Court has separate standing guidelines for preparation for the final pretrial
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`conference and trial. In securities cases, the Court has a standing order concerning early notice
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`For the Northern District of California
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`United States District Court
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`Case 3:16-cv-02433-WHA Document 16 Filed 05/18/16 Page 10 of 10
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`to class members. They are always available for review at the website for the United States
`District Court for the Northern District of California at www.cand.uscourts.gov.
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`Dated: March 17, 2016.
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`
`WILLIAM ALSUP
`UNITED STATES DISTRICT JUDGE
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`United States District Court
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