Case 1:19-cv-01410-MN Document 75 Filed 04/26/21 Page 1 of 7 PageID #: 1415
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`::
`
`::
`
`VB ASSETS, LLC,
`
`Plaintiff,
`
`v.
`
`: C. A. No. 19-1410-MN
`:
`:
`AMAZON.COM, INC., AMAZON.COM
`:
`LLC, AMAZON WEB SERVICES, INC.,
`:
`A2Z DEVELOPMENT CENTER, INC.,
`:
`D/B/A LAB126, RAWLES LLC, AMZN
`:
`MOBILE LLC, AMZN MOBILE 2 LLC,
`:
`AMAZON.COM SERVICES, INC. F/K/A
`:
`AMAZON FULFILLMENT SERVICES,
`INC, and AMAZON DIGITAL SERVICES :
`LLC,
`
`::
`
`:
`
`Defendants.
`
`ORDER GOVERNING PATENT MEDIATION
`VIDEOCONFERENCES AND MEDIATION STATEMENTS
`
`THIS ORDER CONTAINS IMPORTANT INFORMATION WHICH
`SHOULD BE READ BY COUNSEL PRIOR TO PREPARATION OF A
`MEDIATION STATEMENT.
`
`At Wilmington this 26th day of April, 2021.
`
`IT IS ORDERED that:
`
`MEDIATION CONFERENCE
`
`1.
`
`A video/virtual mediation conference is scheduled for Tuesday,
`
`September 14, 2021 beginning at 10:00 a.m. Eastern Time. All required participants
`
`(see ¶ 2) are to be available on the date and at the time mediation begins. It is
`
`counsel’s responsibility to notify Judge Thynge by email, with a copy to Daniel
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`::
`
`::
`
`VB ASSETS, LLC,
`
`Plaintiff,
`
`v.
`
`: C. A. No. 19-1410-MN
`:
`:
`AMAZON.COM, INC., AMAZON.COM
`:
`LLC, AMAZON WEB SERVICES, INC.,
`:
`A2Z DEVELOPMENT CENTER, INC.,
`:
`D/B/A LAB126, RAWLES LLC, AMZN
`:
`MOBILE LLC, AMZN MOBILE 2 LLC,
`:
`AMAZON.COM SERVICES, INC. F/K/A
`:
`AMAZON FULFILLMENT SERVICES,
`INC, and AMAZON DIGITAL SERVICES :
`LLC,
`
`::
`
`:
`
`Defendants.
`
`ORDER GOVERNING PATENT MEDIATION
`VIDEOCONFERENCES AND MEDIATION STATEMENTS
`
`THIS ORDER CONTAINS IMPORTANT INFORMATION WHICH
`SHOULD BE READ BY COUNSEL PRIOR TO PREPARATION OF A
`MEDIATION STATEMENT.
`
`At Wilmington this 26th day of April, 2021.
`
`IT IS ORDERED that:
`
`MEDIATION CONFERENCE
`
`1.
`
`A video/virtual mediation conference is scheduled for Tuesday,
`
`September 14, 2021 beginning at 10:00 a.m. Eastern Time. All required participants
`
`(see ¶ 2) are to be available on the date and at the time mediation begins. It is
`
`counsel’s responsibility to notify Judge Thynge by email, with a copy to Daniel
`
`
`
`Case 1:19-cv-01410-MN Document 75 Filed 04/26/21 Page 2 of 7 PageID #: 1416
`
`Taylor, should the matter settle prior to the mediation date.
`
`(a)
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`For any authorized email communications between Chief
`
`Magistrate Judge Thynge and counsel/parties, Daniel Taylor
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`(daniel_taylor@ded.uscourts.gov), Law Clerk to Judge Thynge shall be copied.
`
`(b)
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`The logistics for video mediation shall be as follows: unless
`
`counsel otherwise agree, Plaintiff shall arrange for a video conference link for a joint
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`discussion line for the Judge and all counsel to use throughout the mediation session.
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`This link should be available throughout the mediation session should the Judge wish to
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`have discussions with all counsel/parties. Plaintiff(s) counsel shall also arrange for a
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`separate video conference link for private discussions with the Judge throughout the
`
`mediation session. Defense counsel shall arrange for a separate video conference link
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`for private discussions with the Judge throughout the mediation session. Plaintiff’s
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`counsel shall provide by email to the Judge, with a copy to her Law Clerk, Daniel
`
`Taylor, the video joint conference link and Plaintiff’s video conference link no earlier or
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`later than Friday, September 10, 2021 at 12:00 noon Eastern Time. Defense
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`counsel shall provide by email to the Judge, with a copy to Mr. Taylor, the defense
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`video conference link no earlier or later than Friday, September 10, 2021 at 12:00
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`noon Eastern Time. These emails shall include the links, along with instructions on
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`how to join the video conference for each conference line. Alternatively, instead of
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`separate emails, the parties may submit the video conference link information to the
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`Judge in a single email.
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`Any platform/service, e.g., Zoom, Team Speak, Skype, Trial Graphix, may
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`2
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`
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`Case 1:19-cv-01410-MN Document 75 Filed 04/26/21 Page 3 of 7 PageID #: 1417
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`be used.
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`REQUIRED PARTICIPANTS
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`2.
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`Each party must be represented at the mediation teleconference by the
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`following required participants: (a) trial counsel; (b) counsel who is/are familiar with the
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`case; and (c) the party/parties and/or decisionmaker(s) of the parties, who must have
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`full authority to act on behalf of the parties, including the authority to negotiate a
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`resolution of the matter and to respond to developments during the mediation process.
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`Full authority means that those participants on behalf of a party should be able to
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`make independent decisions and have a knowledge or understanding of the dispute
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`and/or the business objectives/operations of their company to generate and consider
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`solutions and/or to be able to address the negotiation dynamics in mediation. It is not
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`just settlement authority, that is, to make an offer or to accept an amount.
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`Attendance at the video mediation conference by those participants
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`described herein 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
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`copy to all counsel, no later than fourteen (14) days before the mediation conference.
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`CONTACT INFORMATION FOR REQUIRED PARTICIPANTS
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`3.
`
`(a)
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`No later than the date on which mediation statements are due
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`(see ¶ 4 below), counsel shall email to the court in a writing separate from the
`
`mediation statement for each attorney who will be participating in the mediation
`
`teleconference: (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
`
`3
`
`
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`Case 1:19-cv-01410-MN Document 75 Filed 04/26/21 Page 4 of 7 PageID #: 1418
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`reached.
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`EXCHANGE OF LIST OF PARTICIPANTS ATTENDING MEDIATION
`
`(b)
`
`No later than the date on which the mediation statements are
`
`due (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.
`
`CONFIDENTIAL MEDIATION STATEMENTS
`
`4.
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`On or before Tuesday, August 31, 2021 by no later than 12:00 noon,
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`AN ORIGINAL and ONE COPY of a confidential mediation statement containing all of
`
`the information required by ¶ 6 shall be submitted ONLY to the Chief Magistrate Judge.
`
`The mediation statements shall not be filed with the Clerk's Office, nor emailed to
`
`Chambers, 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
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`be electronically filed since they are not part of the Court record.
`
`5.
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`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 no longer
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`than twenty (20) pages. PAGES MUST BE NUMBERED.
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`6.
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`Unless otherwise ordered, the mediation statements must contain each of
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`the following headings and must contain a discussion of each of the topics described
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`4
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`
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`Case 1:19-cv-01410-MN Document 75 Filed 04/26/21 Page 5 of 7 PageID #: 1419
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`below:
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`a)
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`“The Parties”: provide a description of who the parties are, their
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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
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`mediation conference.
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`b)
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`“Factual Background”: provide a brief factual background, clearly
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`indicating which material facts are not in dispute and which material facts remain in
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`dispute.
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`c)
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`“Summary of Applicable Law”: provide a brief summary of the
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`law, including applicable statutes, cases and standards. Copies of any unreported
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`decisions (including decisions from this jurisdiction) that counsel believes are
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`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
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`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
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`between the parties and the reasons for rejection, and the party's assessment as to
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`why settlement has not been reached.
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`f)
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`“Settlement Proposal”: describe the party's proposed term(s) for
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`a resolution, including the rationale for the term(s). Identify the essential terms for
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`settlement, if any, and discuss terms that cannot be comprised with a brief explanation
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`5
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`
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`Case 1:19-cv-01410-MN Document 75 Filed 04/26/21 Page 6 of 7 PageID #: 1420
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`as to why. Identify any interests or issues not directly involved in this matter that may
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`frustrate or further settlement. If the party has any suggestions as to how the Court
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`may be helpful in reaching a resolution, such suggestions should also be described.
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`g)
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`“Fees and Costs”: list separately each of the following: (i)
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`attorneys’ fees and costs incurred to date; (ii) other fees and costs incurred to date; (iii)
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`good faith estimate of additional attorneys’ fees and costs to be incurred if this matter is
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`not settled; and (iv) good faith estimate of additional other fees and costs to be incurred
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`if this matter 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
`
`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
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`mediation statement. EXHIBITS ARE TO BE SINGLE SIDED AND TABBED.
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`CONFIDENTIALITY
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`8.
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`The contents of the mediation statements and the mediation
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`teleconference discussions, including any resolution or settlement, shall remain
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`confidential, shall not be used in the present litigation nor any other litigation
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`(whether presently pending or filed in the future), and shall not be construed as
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`nor constitute an admission. Breach of this provision shall subject the violator to
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`sanctions.
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`EX PARTE CONTACTS
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`9.
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`Before, during, and after the scheduled telephonic mediation conference,
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`6
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`Case 1:19-cv-01410-MN Document 75 Filed 04/26/21 Page 7 of 7 PageID #: 1421
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`the Court may find it necessary and useful to communicate with one or more parties
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`outside the presence of the other party or parties.
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`OBLIGATION OF GOOD FAITH PARTICIPATION
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`10.
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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
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`process is required. In particular, both the lawyers and the party representatives are
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`expected to be fully prepared to participate. All participants are encouraged to keep an
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`open mind in order to reassess their previous positions and to find creative means for
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`resolving the dispute.
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`AVOIDANCE OF SANCTIONS
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`11.
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`All counsel are reminded of their obligations to read and comply with
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`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
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`Court immediately of any problems regarding compliance with this Order.
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`/s/ Mary Pat Thynge
`Chief U.S. Magistrate Judge
`
`7
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