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