Case 1:18-cv-00303-RGA Document 31 Filed 05/29/18 Page 1 of 6 PageID #: 865
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`BAXTER HEALTHCARE CORPORATION, :
`:
`
`Plaintiff,
`
`::
`
`: C. A. No. 18-303-RGA
`:
`
`::
`
`:
`
`v.
`
`HOSPIRA, INC. and ORION CORP.,
`
`Defendants.
`
`ORDER GOVERNING PATENT MEDIATION
`CONFERENCES AND MEDIATION STATEMENTS
`
`THIS ORDER CONTAINS IMPORTANT INFORMATION WHICH SHOULD
`BE READ BY COUNSEL PRIOR TO PREPARATION OF A MEDIATION
`STATEMENT.
`
`At Wilmington this 29th day of May, 2018.
`
`IT IS ORDERED that:
`
`MEDIATION CONFERENCE
`
`1.
`
`A mediation conference is scheduled for Thursday, December 6, 2018
`
`beginning at 10:00 a.m. All required participants (see ¶ 2) are to report at this time to
`
`Courtroom 2B and to remain available until excused by the Court. Dress for the
`
`mediation is business casual.
`
`(a)
`
`For any authorized email communications between Chief Magistrate
`
`Judge Thynge and counsel/parties, Cathleen Kennedy, Judicial Administrator to Judge
`
`Thynge shall be copied.
`
`REQUIRED PARTICIPANTS
`
`2.
`
`Each party must be represented at the mediation conference by the following
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`BAXTER HEALTHCARE CORPORATION, :
`:
`
`Plaintiff,
`
`::
`
`: C. A. No. 18-303-RGA
`:
`
`::
`
`:
`
`v.
`
`HOSPIRA, INC. and ORION CORP.,
`
`Defendants.
`
`ORDER GOVERNING PATENT MEDIATION
`CONFERENCES AND MEDIATION STATEMENTS
`
`THIS ORDER CONTAINS IMPORTANT INFORMATION WHICH SHOULD
`BE READ BY COUNSEL PRIOR TO PREPARATION OF A MEDIATION
`STATEMENT.
`
`At Wilmington this 29th day of May, 2018.
`
`IT IS ORDERED that:
`
`MEDIATION CONFERENCE
`
`1.
`
`A mediation conference is scheduled for Thursday, December 6, 2018
`
`beginning at 10:00 a.m. All required participants (see ¶ 2) are to report at this time to
`
`Courtroom 2B and to remain available until excused by the Court. Dress for the
`
`mediation is business casual.
`
`(a)
`
`For any authorized email communications between Chief Magistrate
`
`Judge Thynge and counsel/parties, Cathleen Kennedy, Judicial Administrator to Judge
`
`Thynge shall be copied.
`
`REQUIRED PARTICIPANTS
`
`2.
`
`Each party must be represented at the mediation conference by the following
`
`
`
`Case 1:18-cv-00303-RGA Document 31 Filed 05/29/18 Page 2 of 6 PageID #: 866
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`required participants: (a) trial counsel; (b) counsel who is/are familiar with the case; and (c)
`
`the party/parties and/or decisionmaker(s) of the parties, who must have full authority to act
`
`on behalf of the parties, including the authority to negotiate a resolution of the matter and
`
`to respond to developments during the mediation process. Full authority means that
`
`those participants on behalf of a party should be able to make independent decisions and
`
`have a knowledge or understanding of
`
`the dispute and/or
`
`the business
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`objectives/operations of their company to generate and consider solutions and/or to be able
`
`to address the negotiation dynamics in mediation. It is not just settlement authority, that
`
`is, to make an offer or to accept an amount.
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`In-person attendance at the mediation conference by the required participants
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`described above is required unless otherwise authorized by the Court. Any request to
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`modify this requirement shall be made in writing to the Chief Magistrate Judge, with a copy
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`to all counsel or pro se parties, no later than fourteen (14) days before the mediation
`
`conference.
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`CONTACT INFORMATION FOR REQUIRED PARTICIPANTS
`
`3.
`
`(a)
`
`No later than the date on which mediation statements are due (see
`
`¶ 4 below), counsel shall provide to the court in a writing separate from the mediation
`
`statement, by Hand Delivery, not by email, for each attorney who will be attending the
`
`mediation conference: (i) a direct dial telephone work number, (ii) a cell or home telephone
`
`number, and (iii) an electronic mail address where the attorney can be regularly reached.
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`Unrepresented parties shall provide at least one of these three forms of contact
`
`information.
`
`2
`
`
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`Case 1:18-cv-00303-RGA Document 31 Filed 05/29/18 Page 3 of 6 PageID #: 867
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`EXCHANGE OF LIST OF PARTICIPANTS ATTENDING MEDIATION
`
`(b)
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`No later than the date on which the mediation statements are due
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`(see ¶ 4 below), counsel shall submit a list of all participants, including attorney and non-
`
`attorney representatives, who will be attending the mediation on behalf of their party, to the
`
`opposing party or parties.
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`CONFIDENTIAL MEDIATION STATEMENTS
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`4.
`
`On or before Wednesday, November 21, 2018 by no later than 12:00
`
`Noon, AN ORIGINAL and ONE COPY of a confidential mediation statement containing all
`
`of the information required by ¶ 6 shall be submitted ONLY to the Magistrate Judge. The
`
`mediation statements shall not be filed with the Clerk's Office, nor emailed to Chambers
`
`without permission, but shall be delivered to the Clerk’s Office in an envelope addressed
`
`to Chief U. S. Magistrate Judge Mary Pat Thynge and marked “CONFIDENTIAL
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`MEDIATION STATEMENT.” The statements shall not be exchanged among the parties
`
`or counsel (unless the parties so desire), shall not be provided to the trial judge, and shall
`
`not become part of the record in this matter. Mediation statements shall NOT be
`
`electronically filed since they are not part of the Court record.
`
`5.
`
`The mediation statements may be in memorandum or letter form. They must
`
`be double-spaced, single-sided, in no less than a 12-point font, and be no longer than
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`twenty (20) pages.
`
`6.
`
`The mediation statements must contain each of the following headings and
`
`must contain a discussion of each of the topics described below:
`
`a)
`
`“The Parties”: provide a description of who the parties are, their
`
`3
`
`
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`Case 1:18-cv-00303-RGA Document 31 Filed 05/29/18 Page 4 of 6 PageID #: 868
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`relationship, if any, to each other, and by whom each party is represented, including the
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`identity of all individuals who will be participating on behalf of a party during the mediation
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`conference.
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`b)
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`“Factual Background”: provide a brief factual background, clearly
`
`indicating which material facts are not in dispute and which material facts remain in dispute.
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`c)
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`“Summary of Applicable Law”:
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` provide a brief summary of the law,
`
`including applicable statutes, cases and standards. Copies of any unreported decisions
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`(including decisions from this jurisdiction) that counsel believes are particularly relevant
`
`should be included as exhibits (see ¶ 7).
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`d)
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`“Honest Discussion of Strengths and Weaknesses”: provide an
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`honest discussion of the strengths and weaknesses of the party's claims and/or defenses.
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`e)
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`“Settlement Efforts”: provide a brief description of prior settlement
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`negotiations and discussions, including the most recent offers or demands exchanged
`
`between the parties and the reasons for rejection, and the party's assessment as to why
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`settlement has not been reached.
`
`f)
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`“Settlement Proposal”: describe the party's proposed term(s) for a
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`resolution, including the rationale for the settlement proposal(s). Identify the essential terms
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`for settlement, if any. Further, identify any interests or issues not directly involved in this
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`matter that may frustrate or further settlement. If the party has any suggestions as to how
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`the Court may be helpful in reaching a resolution, such suggestions should also be
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`described.
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`g)
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`“Fees and Costs”: list separately each of the following: (i) attorneys’
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`4
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`
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`Case 1:18-cv-00303-RGA Document 31 Filed 05/29/18 Page 5 of 6 PageID #: 869
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`fees and costs incurred to date; (ii) other fees and costs incurred to date; (iii) good faith
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`estimate of additional attorneys’ fees and costs to be incurred if this matter is not settled;
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`and (iv) good faith estimate of additional other fees and costs to be incurred if this matter
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`is not settled.
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`In addition to the required topics described above, and provided that the
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`mediation statement complies with the page limit stated above, counsel are encouraged
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`to address any other matter they believe may be of assistance to the Court.
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`7.
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`Crucial or pertinent documents may be submitted as exhibits to the mediation
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`statement. Counsel are cautioned to limit such exhibits.
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`CONFIDENTIALITY
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`8.
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`The contents of the mediation statements and the mediation conference
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`discussions, including any resolution or settlement, shall remain confidential, shall
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`not be used in the present litigation nor any other litigation (whether presently
`
`pending or filed in the future), and shall not be construed as nor constitute an
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`admission. Breach of this provision shall subject the violator to sanctions.
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`EX PARTE CONTACTS
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`9.
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`Before, during, and after the scheduled mediation conference, the Court may
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`find it necessary and useful to communicate with one or more parties outside the presence
`
`of the other party or parties.
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`REQUEST FOR WIFI ACCESS
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`10. WiFi Access: Permission to obtain WiFi access will only be given for the
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`date(s) of mediation. Since only one login and one password will be provided, all counsel
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`5
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`
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`Case 1:18-cv-00303-RGA Document 31 Filed 05/29/18 Page 6 of 6 PageID #: 870
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`requesting WiFi are to contact plaintiff’s counsel, who in turn will submit one request
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`through the Court’s website. Permission will not be given if the request is not timely made.
`
`The WiFi login and password will be provided on the mediation date. Do not call
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`chambers to request this information ahead of time. It is the responsibility of Delaware
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`counsel for plaintiff(s) to complete and submit the required form on the website to obtain
`
`authorization. Failure to submit the request in accordance with the Court’s website will
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`result in the request being denied.
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`OBLIGATION OF GOOD FAITH PARTICIPATION
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`11.
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`The required participants shall be available and accessible throughout the
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`mediation process. The parties' full and good faith cooperation with the mediation process
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`is required. In particular, both the lawyers and the party representatives are expected to
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`be fully prepared to participate. All participants are encouraged to keep an open mind in
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`order to reassess their previous positions and to find creative means for resolving the
`
`dispute.
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`AVOIDANCE OF SANCTIONS
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`12.
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`All counsel are reminded of their obligations to read and comply with
`
`this Order. Delaware counsel are reminded of their obligations to inform out-of-state
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`counsel of this Order. To avoid the imposition of sanctions, counsel shall advise the Court
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`immediately of any problems regarding compliance with this Order.
`
`/s/ Mary Pat Thynge
`Chief U.S. Magistrate Judge Mary Pat Thynge
`
`6
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`
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