`
`14
`
`Illumina, Inc.,
`
`Plaintiff,
`
`Defendant.
`
`
`
` Case No.: 16-cv-00661-JLS-BGS
`
`NOTICE AND ORDER:
`(1) FOR EARLY NEUTRAL
`EVALUATION CONFERENCE,
`
`(2) SETTING RULE 26
`COMPLIANCE AND CASE
`MANAGEMENT CONFERENCE
`IN PATENT CASES
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Case 3:16-cv-00661-JLS-BGS Document 36 Filed 05/01/17 PageID.261 Page 1 of 7
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`The Scripps Research Institute,
`
`
`
`IT IS HEREBY ORDERED that an Early Neutral Evaluation of your case will be
`
`held on June 9, 2017, at 1:30 p.m. before United States Magistrate Judge Bernard G.
`
`Skomal, United States District Court, 333 W. Broadway, Suite 1280, San Diego,
`
`California.
`
`
`
`The following are mandatory guidelines for the parties preparing for the
`
`Early Neutral Evaluation Conference.
`
`1.
`
`Purpose of Conference: The purpose of the Early Neutral Evaluation
`
`Conference (“ENE”) is to hold a serious discussion of every aspect of the lawsuit in an
`
`effort to achieve an early resolution of the case. All conference discussions will be off
`
`the record, privileged and confidential. Counsel for any non-English speaking parties is
`
`1
`
`16-cv-00661-JLS-BGS
`
`
`
`Case 3:16-cv-00661-JLS-BGS Document 36 Filed 05/01/17 PageID.262 Page 2 of 7
`
`
`responsible for arranging for the appearance of an interpreter at the conference.
`
`2.
`
`Personal Appearance of Parties Is Required: All parties, adjusters for
`
`insured defendants, and other representatives of a party having full and complete
`
`authority to enter into a binding settlement, and the principal attorneys responsible for the
`
`litigation, must be present in person and legally and factually prepared to discuss
`
`settlement of the case.1 Upon review of the parties’ Confidential ENE Statements
`
`(discussed below), the Court at its discretion may elect to convert the ENE to a
`
`telephonic conference and/or limit it to attorneys only.
`
`3.
`
`Full Settlement Authority Required: In addition to counsel who will try
`
`the case, a party or party representative with full settlement authority must be present for
`
`the conference. The purpose of this requirement is to have representatives present who
`
`can settle the case during the course of the conference without consulting a superior.
`
`Counsel for a government entity may be excused from this requirement so long as the
`
`government attorney who attends the ENE conference (1) has primary responsibility for
`
`handling the case; and (2) may negotiate settlement offers which the attorney is willing to
`
`recommend to the government official having ultimate settlement authority. Other
`
`parties seeking permission to be excused from attending the ENE in person must follow
`
`the procedures outlined in Judge Skomal’s Chambers’ Rules. (See Judge Skomal’s
`
`Chambers’ Rules at p. 3, section C.) Failure of any of the above parties to appear at the
`
`ENE conference without the Court’s permission will be grounds for sanctions.
`
`4.
`
`Confidential ENE Statements Required: No later than May 19, 2017, the
`
`
`
`1 “Full authority to settle” means that the individuals at the settlement conference must be authorized to
`fully explore settlement options and to agree at that time to any settlement terms acceptable to the
`parties and to bind the party, without the need to call others not present for authority or approval.
`Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648 (7th Cir. 1989). The person needs to
`have “unfettered discretion and authority” to change the settlement position of a party. Pitman v.
`Brinker Intl., Inc., 216 F.R.D. 481, 485-486 (D. Ariz. 2003). The purpose of requiring a person with
`unlimited settlement authority to attend the conference includes that the person’s view of the case may
`be altered during the face to face conference. Id. at 486. A limited or a sum certain of authority is not
`adequate. Nick v. Morgan’s Foods, Inc., 270 F.3d 590 (8th Cir. 2001).
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`2
`
`16-cv-00661-JLS-BGS
`
`
`
`Case 3:16-cv-00661-JLS-BGS Document 36 Filed 05/01/17 PageID.263 Page 3 of 7
`
`
`parties must submit confidential settlement statements of seven pages or less directly to
`
`Judge Skomal’s chambers at efile_skomal@casd.uscourts.gov. Please also attach
`
`relevant exhibits. The statement must address the legal and factual issues in the case and
`
`should focus on issues most pertinent to settling the matter. The statement should not
`
`repeat facts or law contained in the Complaint or Answer. Statements do not need to be
`
`filed or served on opposing counsel. The statement must also include any prior
`
`settlement offer or demand, as well as the offer or demand the party will make at the
`
`ENE. The Court will keep this information confidential unless the party authorizes the
`
`Court to share the information with opposing counsel.
`
`5.
`
`New Parties Must Be Notified by Plaintiff’s Counsel: Plaintiff’s counsel
`
`shall give notice of the ENE to parties responding to the complaint after the date of this
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`notice.
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`6.
`
`Case Management Under the Amended Federal Rules and Local Patent
`
`Rules: In the event the case does not settle at the ENE, the parties can expect to leave the
`
`ENE with Rule 26 compliance dates and deadlines, and a Case Management Order
`
`including a Claim Construction briefing schedule and hearing date. Parties shall,
`
`therefore, meet and confer pursuant to Fed. R. Civ. P. 26(f) no later than May 12,
`
`2017, regarding:
`
`a.
`
`Any anticipated objections under Federal Rule of Civil Procedure
`
`26(a)(1)(E) to the initial disclosure provisions of Federal Rule of Civil
`
`Procedure 26(a)(1)(A-D) and the date of initial disclosures;
`
`b. Whether the parties will request the preservation and production of
`
`Electronically Stored Information ("ESI") and, if so:
`
`i. the nature, location, and scope of discoverable ESI;
`
`ii. the agreed form of production;
`
`iii. the agreed search methodology;
`
`iv. whether any proportionality issues exist and whether the parties have
`
`identified issues with respect to inaccessible ESI;
`
`3
`
`16-cv-00661-JLS-BGS
`
`
`
`Case 3:16-cv-00661-JLS-BGS Document 36 Filed 05/01/17 PageID.264 Page 4 of 7
`
`
`
`c.
`
`Any proposed modification of the deadlines provided for in the Patent Local
`
`Rules, and the effect of any such modification on the date and time of the
`
`Claim Construction Hearing, if any;
`
`d.
`
`The need for and specific limitations on discovery relating to claim
`
`construction, including depositions of percipient and expert witnesses; and
`
`Any proposed modifications to the limitations on discovery imposed under
`
`the Federal Rules of Civil Procedure or by local rule;
`
`e.
`
`The need, if any, to phase damage discovery.
`
`The parties must include their positions with respect to the above issues, in
`
`addition to proposing actual dates for ALL of the following deadlines in a Joint
`
`Discovery Plan:
`
`- deadline for disclosure of asserted claims and preliminary infringement
`contentions;
`- deadline for preliminary invalidity contentions;
`- deadline for exchange of proposed claim constructions and extrinsic
`evidence;
`- deadline for joint claim construction chart, worksheet and hearing
`statement;
`- deadline for completion of claim construction discovery;
`- proposed briefing schedule for filing of claim construction briefs
`- proposed date and time of the Claim Construction Hearing, if any;
`- whether the court will hear live testimony at the Claim Construction
`Hearing;
`- the need for and specific limitations on discovery relating to claim
`construction, including depositions of percipient and expert witnesses;
`- deadlines for expert witness designation and supplementation;
`- deadlines for expert witness report submissions and supplementation
`- deadlines for completions of fact and expert discovery;
`- deadline for filing pretrial motions; and
`- proposed final Pretrial Conference date.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`The Joint Discovery Plan shall be submitted via email to Judge Skomal’s
`
`chambers, as well as filed on the CM/ECF system, no later than May 19, 2017. The
`
`Court will issue an order following the ENE addressing these issues and setting dates as
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`4
`
`16-cv-00661-JLS-BGS
`
`
`
`Case 3:16-cv-00661-JLS-BGS Document 36 Filed 05/01/17 PageID.265 Page 5 of 7
`
`
`appropriate. The plan must be one document and must explicitly cover the parties' views
`
`and proposals for each item identified in Fed. R. Civ. P. 26(f)(3). In addition, Judge
`
`Skomal requires the discovery plan to identify whether the parties will consent to
`
`jurisdiction of a Magistrate Judge. Agreements made in the Discovery Plan will be
`
`treated as binding stipulations that are effectively incorporated into the Court's Case
`
`Management Order.
`
`7.
`
`Requests to Continue an ENE Conference: Local Patent Rule 2.1.a
`
`requires that an ENE take place within 60 days of the filing of the first answer. Requests
`
`to continue ENEs are rarely granted. The Court will, however, consider formal motions
`
`to continue an ENE when extraordinary circumstances exist and the other party has no
`
`objection. If another party objects to the continuance, counsel for both parties must call
`
`chambers and discuss the matter with the research attorney/law clerk assigned to the case
`
`before any motion may be filed. Any request for a continuance must be made as soon as
`
`counsel is aware of the circumstances that warrant rescheduling the conference.
`
`8.
`
`Settlement Prior to ENE Conference: The Court encourages the parties
`
`to work on settling the matter in advance of the ENE Conference. In the event that the
`
`parties resolve the matter prior to the day of the conference, the following procedures
`
`must be followed before the Court will vacate the ENE and excuse the parties from
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`appearing:
`
`20
`
`21
`
`A.
`
`The parties may file a Joint Motion to Dismiss and submit a proposed
`
`order to the assigned district judge. If a Joint Motion to Dismiss is filed, the Court will
`
`22
`
`immediately vacate the ENE;
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`B.
`
`If the parties settle more than 24 hours before the conference but are
`
`not able to file a Joint Motion to Dismiss, they must file a Notice of Settlement
`
`containing the electronic signatures of counsel for all settling parties and must also
`
`identify a date by which the Joint Motion to Dismiss will be filed;
`
`C.
`
`If the parties settle less than 24 hours before the conference, counsel
`
`for the settling parties must JOINTLY call chambers and inform the Court of the
`
`5
`
`16-cv-00661-JLS-BGS
`
`
`
`Case 3:16-cv-00661-JLS-BGS Document 36 Filed 05/01/17 PageID.266 Page 6 of 7
`
`
`settlement and receive Court permission to not appear at the ENE.
`
`
`
`Questions regarding this case or the mandatory guidelines set forth herein may be
`
`directed to Skomal's research attorney at (619) 557-2993.
`
`
`
`A Notice of Right to Consent to Trial Before a United States Magistrate Judge is
`
`attached for your information.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`IT IS SO ORDERED.
`
`Dated: May 1, 2017
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`6
`
`16-cv-00661-JLS-BGS
`
`
`
`Case 3:16-cv-00661-JLS-BGS Document 36 Filed 05/01/17 PageID.267 Page 7 of 7
`
`
`
`
`
`
`
`NOTICE OF RIGHT TO CONSENT TO TRIAL
`
`BEFORE A UNITED STATES MAGISTRATE JUDGE
`
`In accordance with the provisions of 28 U.S.C. § 636(c), you are notified that a
`
`U.S. Magistrate Judge of this district may, upon the consent of all parties, on form 1A
`
`available in the Clerk’s office, conduct any or all proceedings, including a jury or non-
`
`jury trial, and order the entry of a final judgment. Counsel for the plaintiff is responsible
`
`to obtain the consent of all parties, if they want to consent.
`
`
`
`Be aware that your decision to consent or not to consent is entirely voluntary.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`Only if all parties consent will the Judge or Magistrate Judge to whom the case has been
`
`11
`
`assigned be informed of your decision.
`
`12
`
`
`
`Judgments of the U.S. Magistrate Judges are appealable to the U.S. Court of
`
`13
`
`Appeals in accordance with this statute and the Federal Rules of Appellate Procedure.
`
`14
`
`
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`7
`
`16-cv-00661-JLS-BGS
`
`