Case 3:17-cv-05659-WHA Document 34 Filed 02/23/18 Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`FINJAN, INC.,
`Plaintiff,
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` v.
`JUNIPER NETWORKS, INC.,
`Defendant.
` /
`
`No. C 17-05659 WHA
`
`CASE MANAGEMENT ORDER
`AND REFERENCE
`TO MAGISTRATE JUDGE
`FOR MEDIATION/SETTLEMENT
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`After a case management conference, the Court enters the following order pursuant to
`Rule 16 of the Federal Rules of Civil Procedure (“FRCP”) and Civil Local Rule 16-10:
`All initial disclosures under FRCP 26 must be completed by FEBRUARY 28, 2018, on
`1.
`pain of preclusion, including full and faithful compliance with FRCP 26(a)(1)(A)(iii).
`The last day for plaintiff to voluntarily withdraw any asserted claims shall be
`MARCH 8, 2018.
`Leave to add any new parties or to amend pleadings must be sought by MAY 31, 2018.
`The non-expert discovery cut-off date shall be MARCH 29, 2019.
`The deadline for producing opinions of counsel under Patent Local Rule 3-7 shall be
`28 CALENDAR DAYS before the non-expert discovery cut-off, irrespective of the
`timeline in said rule.
`Subject to the exception in the next paragraph, the last date for designation of expert
`testimony and disclosure of full expert reports under FRCP 26(a)(2) as to any issue on
`which a party has the burden of proof (“opening reports”) shall be MARCH 29, 2019.
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`For the Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 34 Filed 02/23/18 Page 2 of 8
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`Within FOURTEEN CALENDAR DAYS of said deadline, all other parties must disclose any
`expert reports on the same issue (“opposition reports”). Within
`SEVEN CALENDAR DAYS thereafter, the party with the burden of proof must disclose
`any reply reports rebutting specific material in opposition reports. Reply reports must
`be limited to true rebuttal and should be very brief. They should not add new material
`that should have been placed in the opening report and the reply material will ordinarily
`be reserved for the rebuttal or sur-rebuttal phase of the trial. If the party with the
`burden of proof neglects to make a timely disclosure, the other side, if it wishes to put
`in expert evidence on the same issue anyway, must disclose its expert report within the
`fourteen-day period. In that event, the party with the burden of proof on the issue may
`then file a reply expert report within the seven-day period, subject to possible exclusion
`for “sandbagging” and, at all events, any such reply material may be presented at trial
`only after, if at all, the other side actually presents expert testimony to which the reply
`is responsive. The cutoff for all expert discovery shall be FOURTEEN CALENDAR DAYS
`after the deadline for reply reports. In aid of preparing an opposition or reply report, a
`responding party may depose the adverse expert sufficiently before the deadline for
`the opposition or reply report so as to use the testimony in preparing the response.
`Experts must make themselves readily available for such depositions. Alternatively,
`the responding party can elect to depose the expert later in the expert-discovery period.
`An expert, however, may be deposed only once unless the expert is used for different
`opening and/or opposition reports, in which case the expert may be deposed
`independently on the subject matter of each report. At least 28 CALENDAR DAYS before
`the due date for opening reports, each party shall serve a list of issues on which it will
`offer any expert testimony in its case-in-chief (including from non-retained experts).
`This is so that all parties will be timely able to obtain counter-experts on the listed
`issues and to facilitate the timely completeness of all expert reports. Failure to so
`disclose may result in preclusion.
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`For the Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 34 Filed 02/23/18 Page 3 of 8
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`As to damages studies, the cut-off date for past damages will be as of the expert report
`(or such earlier date as the expert may select). In addition, the experts may try to
`project future damages (i.e., after the cut-off date) if the substantive standards for
`future damages can be met. With timely leave of Court or by written stipulation, the
`experts may update their reports (with supplemental reports) to a date closer to the time
`of trial.
`At trial, the opening testimony of experts on direct examination will be limited to the
`matters disclosed in their reports (and any reply reports may be covered only on
`rebuttal or sur-rebuttal). Omitted material may not ordinarily be added on direct
`examination. This means the reports must be complete and sufficiently detailed.
`Illustrative animations, diagrams, charts and models may be used on direct examination
`only if they were part of the expert’s report, with the exception of simple drawings and
`tabulations that plainly illustrate what is already in the report, which can be drawn by
`the witness at trial or otherwise shown to the jury. If cross-examination fairly opens
`the door, however, an expert may go beyond the written report on cross-examination
`and/or redirect examination. By written stipulation, of course, all sides may relax these
`requirements. For trial, an expert must learn and testify to the full amount of billing
`and unbilled time by him or his firm on the engagement.
`To head off a recurring problem, experts lacking percipient knowledge should avoid
`vouching for the credibility of witnesses, i.e., whose version of the facts in dispute is
`correct. This means that they may not, for example, testify that based upon a review of
`fact depositions and other material supplied by counsel, a police officer did (or did not)
`violate standards. Rather, the expert should be asked for his or her opinion based —
`explicitly — upon an assumed fact scenario. This will make clear that the witness is
`not attempting to make credibility and fact findings and thereby to invade the province
`of the jury. Of course, a qualified expert can testify to relevant customs, usages,
`practices, recognized standards of conduct, and other specialized matters beyond the
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`For the Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 34 Filed 02/23/18 Page 4 of 8
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`ken of a lay jury. This subject is addressed further in the trial guidelines referenced
`below.
`Counsel need not request a motion hearing date and may notice non-discovery motions
`for any Thursday (except 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. Unless discovery supervision has been referred
`to a magistrate judge, discovery motions should be as per the supplemental order
`referenced below.
`By JUNE 7, 2018, each side shall select one asserted claim — presumably the strongest
`case for infringement and the strongest case for noninfringement or invalidity,
`respectively — and file an early motion for summary judgment on that claim, with
`oppositions due by JUNE 28, 2018, replies due by JULY 12, 2018, and the motion
`hearing on JULY 26, 2018, AT 8:00 A.M. The outcome of this exchange may (or may
`not) warrant an injunction or sanctions, depending on which side prevails. The
`potential remedies will be litigated soon after the early motions for summary judgment
`are decided (depending, of course, on the outcome). In addition to adjudicating the
`selected claims on their merits and indicating the relative strengths (or weaknesses) of
`both sides’ positions, this procedure will serve to educate the undersigned judge about
`the overall technology at issue. If issues of fact prevent summary judgment, then we
`will have a trial on the disputed points soon thereafter, approximately three weeks after
`the hearing on July 26. Both sides shall please plan their calendars accordingly.
`The last day to file dispositive motions (other than the early motions for summary
`judgment described above) shall be APRIL 11, 2019.
`The FINAL PRETRIAL CONFERENCE shall be held on JUNE 6, 2019, at 2:00 P.M.
`Although the Court encourages argument and participation by younger attorneys, lead
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`For the Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 34 Filed 02/23/18 Page 5 of 8
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`trial counsel must attend the final pretrial conference. For the form of submissions for
`the final pretrial conference and trial, please see below.
`A JURY TRIAL shall begin on JULY 8, 2019, at 7:30 A.M., in Courtroom 12, 19th Floor,
`450 Golden Gate Avenue, San Francisco, California, 94102. The trial schedule and
`time limits shall be set at the final pretrial conference. Although almost all trials
`proceed on the date scheduled, it may be necessary on occasion for a case to trail,
`meaning the trial may commence a few days or even a few weeks after the date stated
`above, due to calendar congestion and the need to give priority to criminal trials.
`Counsel and the parties should plan accordingly, including advising witnesses.
`Counsel may not stipulate around the foregoing dates without Court approval.
`For many years, the Court conducted a claim construction hearing about mid-way
`through the fact-discovery period. While this timing gave some guidance to counsel
`and experts, it had the distinct disadvantage of requiring abstract rulings without the
`benefit of a more complete record, thus increasing the risk of a claim construction error
`and a re-trial (and, for that matter, subsequent second appeal). Instead of a stand-alone
`claim construction hearing, claim construction will now be done on summary judgment
`or at trial in settling the jury instructions. In this way, the Court will better understand
`the as-applied meaning of terms advanced by counsel as claim constructions.
`In addition to the early summary judgment motions described above, each party (or
`group of related parties) shall be entitled to one summary judgment motion. If it is
`granted in full or nearly so, then that party (or group) may ask for leave to file another
`summary judgment motion as long as the deadline to file one has not passed. Any
`summary judgment motion must be limited to 25 pages of briefing and 120 pages of
`declarations and exhibits (not counting the patent itself). The opposition must be
`limited to forty pages of briefing and 140 pages of declarations. The reply must be
`limited to fifteen pages of briefing and twenty pages of declarations and exhibits. In
`the case of voluminous documents and transcripts attached as exhibits, counsel may
`append only the pages of the document necessary to support the assertions in the
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`Case 3:17-cv-05659-WHA Document 34 Filed 02/23/18 Page 6 of 8
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`briefing and provide reasonable context, along with pages sufficient to identify the
`documents. Any judicially noticed material will count as an exhibit, but counsel may
`rely on exhibits and declarations already filed on the same motion by the other side
`without counting them against counsel’s limit. All briefing and declarations must be
`double-spaced with number twelve font with only occasional single-spaced quotes and
`footnotes.
`A movant may move before the summary judgment deadline and before the end of
`discovery. If it does so, however, it should ordinarily alert the other side of the specific
`grounds for its contemplated motion reasonably in advance of the motion and cooperate
`in all discovery the opposing side reasonably needs to meet the issues raised. Once the
`opposing side is on notice of the contemplated motion, it must act with diligence to
`investigate and to conduct discovery to meet the anticipated motion. Lack of diligence
`will undermine any application to postpone the summary judgment motion under
`FRCP 56(d). Again, if the motion is largely granted, then the prevailing party may
`seek permission to file yet another summary judgment motion, but if it is largely
`denied, no further summary judgment motions will be allowed to that party, for a
`movant should base its motion on its best ground for summary relief. Permission may
`be sought by filing a five-page application setting forth the ground for the new motion.
`Any opposition must be filed within three court days.
`The Court realizes that counsel would prefer to go into a trial or summary judgment
`knowing how the jury will be instructed as to all claims terms, but even under other
`case management approaches, that preference is rarely attainable. Postponing claim
`construction until after the judge has the benefit of the trial evidence or at least the
`benefit of the summary judgment record is more likely to avoid a mistake in claim
`construction. Moreover, it is customary in trials of all types for counsel and experts to
`learn only at the instructions-settling conference near the end of the evidence what
`instructions will or will not be given. As is routinely done in non-patent trials, patent
`trial counsel should adjust their trial plan and their expert presentations to account for
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`Case 3:17-cv-05659-WHA Document 34 Filed 02/23/18 Page 7 of 8
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`the risk that their favored claim constructions will be rejected or modified in the final
`instructions.
`Although claim construction will only be done in the context of summary judgment (or
`settling the jury instructions), the infringement and invalidity procedures of our Patent
`Local Rules must still be followed, including Rules 3-1 to 3-6, and 4-1 to 4-4 (except
`that the Court prefers six terms rather than ten). Claim construction briefs must still be
`filed under the schedule provided by Rule 4-5 but on summary judgment, the pertinent
`parts of the claim construction briefs shall be extracted out and/or cited as relevant.
`As stated above, the claim construction hearing under Rule 4-6 shall occur along with
`summary judgment. If the action originated in a different district and was subsequently
`transferred here, then plaintiff must timely refile its infringement contentions to
`conform to our Rule 3-1, which filing shall trigger the due date for the invalidity
`contentions.
`21. While the Court encourages the parties to engage in settlement discussions, please do
`not ask for any extensions on the ground of settlement discussions or on the ground that
`the parties experienced delays in scheduling settlement conferences, mediation or ene.
`The parties should proceed to prepare their cases for trial. No continuance (even if
`stipulated) shall be granted on the ground of incomplete preparation without competent
`and detailed declarations setting forth good cause.
`To avoid any misunderstanding with respect to the final pretrial conference and trial,
`the Court wishes to emphasize that all filings and appearances must be made — on pain
`of dismissal, default or other sanction — unless and until a dismissal fully resolving the
`case is received. It will not be enough to inform the clerk that a settlement in principle
`has been reached or to lodge a partially executed settlement agreement or to lodge
`a fully executed agreement (or dismissal) that resolves less than the entire case.
`Where, however, a fully-executed settlement agreement clearly and fully disposing of
`the entire case is lodged reasonably in advance of the pretrial conference or trial and
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`only a ministerial act remains, the Court will arrange a telephone conference to work
`out an alternate procedure pending a formal dismissal.
`If you have not already done so, please read and follow the “Supplemental Order to
`Order Setting Initial Case Management Conference in Civil Cases Before Judge
`William Alsup” and other orders issued by the Clerk’s office when this action was
`commenced. Among other things, the supplemental order explains when submissions
`are to go to the Clerk’s Office (the general rule) versus when submissions may go
`directly to chambers (rarely). With respect to the final pretrial conference and trial,
`please read and follow the “Guidelines For Trial and Final Pretrial Conference in Civil
`Jury Cases Before The Honorable William Alsup.” All orders and guidelines
`referenced in the paragraph are available on the district court’s website at
`http://www.cand.uscourts.gov. The website also includes other guidelines for
`attorney’s fees motions and the necessary form of attorney time records for cases
`before Judge Alsup. If you do not have access to the Internet, you may contact Deputy
`Clerk Dawn Logan at (415) 522-2020 to learn how to pick up a hard copy.
`This matter is hereby REFERRED to MAGISTRATE JUDGE SUSAN VAN KEULEN for
`MEDIATION/SETTLEMENT, the Court believing that such a conference would be more
`effective in settling the present case than any other avenue.
`All pretrial disclosures under FRCP 26(a)(3) and objections required by FRCP 26(a)(3)
`must be made on the schedule established by said rule.
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`IT IS SO ORDERED.
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`Dated: February 23, 2018.
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`WILLIAM ALSUP
`UNITED STATES DISTRICT JUDGE
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