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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`BELL NORTHERN RESEARCH, LLC,
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`Case No.: 18cv1786-CAB(BLM)
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`v.
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`ZTE CORPORATION, et al.,
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`Plaintiff,
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`Defendants.
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`SCHEDULING ORDER
`REGULATING DISCOVERY AND
`OTHER PRETRIAL PROCEEDINGS
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`On August 9, 2019, District Judge Cathy A. Bencivengo issued an Order governing
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`claim construction, after which the parties contacted chambers in compliance with this
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`Court’s October 23, 2018 Case Management Order. Accordingly, the Court sets the
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`remaining pretrial dates and deadlines as follows:
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`1.
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`Counsel1 shall refer to Judge Bencivengo’s Chambers Rules for Civil Cases,
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`which is accessiable via the Court’s website at www.casd.uscourts.gov.
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`2.
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`All fact discovery shall be completed by all parties on or before September
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`27, 2019. “Completed” means that all discovery under Rules 30-36 of the Federal Rules
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`1 As used herein, references ot “counsel” include any party representing himself or herself.
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`18cv1786-CAB(BLM)
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`LG 1030
`LG v. BNR
`IPR2020-00319
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`of Civil Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient
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`period of time in advance of the cut-off date, so that it may be completed by the cut-off
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`date, taking into account the times for service, notice, and response as set forth in the
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`Federal Rules of Civil Procedure.
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`Counsel shall promptly and in good faith meet and confer with regard to all
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`discovery disputes in compliance with Federal Rule of Civil Procedure 37(a)(1) and Civil
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`Local Rule 26.1(a). All discovery motions must be filed within 30 days of the service of
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`an objection, answer or response which becomes the subject of dispute or the passage of a
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`discovery due date without response or production, and only after counsel have met and
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`conferred and have reached impasse with regard to the particular issue. The Court’s
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`procedures for resolving discovery disputes are set forth in Magistrate Judge Barbara L.
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`Major’s Civil Chambers Rules, which are posted on the Court’s website. A failure to
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`comply in this regard will result in a waiver of a party's discovery issue. Absent an
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`order of the court, no stipulation continuing or altering this requirement will be
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`3.
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`Plaintiff(s) (or the party(ies) having the burden of proof on any claim) shall
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`serve on all parties a list of experts whom that party expects to call at trial on or before
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`September 27, 2019. Defendant(s) (or the party(ies) defending any claim, counterclaim,
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`crossclaim, or third-party claim) shall serve on all parties a list of experts whom that
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`party expects to call at trial on or before September 27, 2019. On or before October 18,
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`2019, any party may supplement its designation in response to any other party’s
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`designation, so long as that party has not previously retained an expert to testify on that
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`subject. Expert designations shall include the name, address, and telephone number of
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`each expert, and a reasonable summary of the testimony the expert is expected to provide.
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`The list shall also include the normal rates the expert charges for deposition and trial
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`testimony.
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`///
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`///
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`The parties must identify any person who may be used at trial to present evidence
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`pursuant to Rules 702, 703 or 705 of the Federal Rules of Evidence. This requirement is
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`not limited to retained experts.
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`Please be advised that failure to comply with this section or any other
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`discovery order of the Court may result in the sanctions provided for in Fed. R. Civ.
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`P. 37, including a prohibition on the introduction of experts or other designated
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`matters in evidence.
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`4.
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`All expert disclosures required by Fed. R. Civ. P. 26(a)(2) shall be served on
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`all parties on or before October 25, 2019. Any contradictory or rebuttal disclosures
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`within the meaning of Rule 26(a)(2)(D)(ii) shall be disclosed on or before December 6,
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`2019. Unless otherwise stipulated by the parties, the required expert disclosures shall
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`include an expert report as required by Rule 26(a)(2)(B). If a written report is not
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`required, the disclosure must provide the information required under Rule 26(a)(2)(c).
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`5.
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`All expert discovery shall be completed by all parties on or before January
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`10, 2020 and shall be completed in the same manner as described in paragraph one (1)
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`governing the completion of fact discovery.
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`6.
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`All other dispositive motions, including those addressing Daubert issues,
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`shall be FILED on or before January 24, 2020. Please be advised that counsel for the
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`moving party must obtain a motion hearing date from the law clerk of the judge who will
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`hear the motion. Failure of counsel to timely request a motion date may result in the
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`motion not being heard. Motions in Limine are to be filed as directed in the Local Rules,
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`or as otherwise set by District Judge Bencivengo.
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`7.
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`Briefs or memoranda in support of or in opposition to any pending motion
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`shall not exceed twenty-five (25) pages in length without permission of the judge or
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`magistrate judge who will hear the motion. No reply memorandum shall exceed ten (10)
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`pages without leave of the judge or magistrate judge who will hear the motion.
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`8.
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`A Mandatory Settlement Conference shall be conducted on October 23,
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`2019 at 9:30 a.m. in the chambers of Magistrate Judge Barbara L. Major located at
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`333 West Broadway, Suite 1110, San Diego, CA 92101. All discussions at the
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`Mandatory Settlement Conference will be informal, off the record, privileged, and
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`confidential. Counsel for any non-English speaking party is responsible for arranging for
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`the appearance of an interpreter at the conference.
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`a.
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`Personal Appearance of Parties 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, as well as the principal attorneys responsible
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`for the litigation, must be present in person and legally and factually prepared to discuss
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`settlement of the case. Counsel appearing without their clients (whether or not counsel
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`has been given settlement authority) will be cause for immediate imposition of sanctions
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`and may also result in the immediate termination of the conference.
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`Unless there is good cause, persons required to attend the conference pursuant to
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`this Order shall not be excused from personal attendance. Requests for excuse from
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`attendance for good cause shall be made in writing at least three (3) court days prior to
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`the conference. Failure to appear in person at the Mandatory Settlement Conference will
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`b.
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`Full Settlement Authority Required: In addition to counsel who will try
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`the conference. In the case of a corporate entity, an authorized representative of the
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`2 "Full settlement authority" means that the individuals at the settlement conference must be authorized
`to explore settlement options fully and to agree at that time to any settlement terms acceptable to the
`parties. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989). The person
`needs to have "unfettered discretion and authority" to change the settlement position of a party. Pitman
`v. Brinker Int'l, Inc., 216 F.R.D. 481, 485-86 (D. Ariz. 2003). The purpose of requiring a person with
`unlimited settlement authority to attend the conference contemplates 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. See Nick v. Morgan's Foods, Inc., 270 F.3d 590, 595-97 (8th Cir. 2001).
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`corporation who is not retained outside counsel must be present and must have
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`discretionary authority to commit the company to pay an amount up to the amount of
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`Plaintiff's prayer (excluding punitive damages prayers). The purpose of this requirement
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`is to have representatives present who can settle the case during the course of the
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`conference without consulting a superior. Counsel for a government entity may be
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`excused from this requirement so long as the government attorney who attends the
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`Mandatory Settlement Conference (1) has primary responsibility for handling the case,
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`and (2) may negotiate settlement offers which the attorney is willing to recommend to the
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`government official having ultimate settlement authority.
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`c.
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`Confidential Settlement Statements Required: No later than October 11,
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`2019, the parties shall submit directly to Magistrate Judge Major's chambers (via hand
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`delivery or email address) confidential settlement statements no more than ten (10) pages
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`in length. These confidential statements shall not be filed or served on opposing
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`counsel. Each party's confidential statement must set forth the party’s statement of the
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`case, identify controlling legal issues, concisely set out issues of liability and damages,
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`and shall set forth the party’s settlement position, including any previous settlement
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`negotiations, mediation sessions, or mediation efforts, the last offer or demand made by
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`that party, and a separate statement of the offer or demand the party is prepared to make
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`at the settlement conference. If a specific demand or offer for settlement cannot be made
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`at the time the brief is submitted, then the reasons therefore must be stated along with a
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`statement as to when the party will be in a position to state a demand or make an offer.
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`General statements that a party will "negotiate in good faith" is not a specific
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`demand or offer contemplated by this Order. It is assumed that all parties will negotiate
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`d.
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`Requests to Continue a Mandatory Settlement Conference: Any request
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`to continue the Mandatory Settlement Conference or request for relief from any of the
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`provisions or requirements of this Order must be sought by a joint motion, or—if the
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`motion is opposed—a written ex parte application filed by the party seeking the
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`continuance in compliance with Chambers rules. The application must (1) be supported
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`by a declaration of counsel setting forth the reasons and justifications for the relief
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`requested, (2) confirm compliance with Civil Local Rule 83.3(g), and (3) report the
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`position of opposing counsel or any unrepresented parties subject to the Order. Absent
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`good cause, requests for continuances will not be considered unless submitted in
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`writing no fewer than (7) days prior to the scheduled conference.
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`If the case is settled in its entirety before the scheduled date of the conference,
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`counsel and any unrepresented parties must still appear in person, unless a written
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`joint notice confirming the complete settlement of the case is filed no fewer than
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`twenty-four (24) hours before the scheduled conference.
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`9.
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`Pursuant to Local Civil Rule 16.3, all party representatives and claims
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`adjusters for insured defendants with full and unlimited authority to negotiate and enter
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`into a binding settlement, as well as the principal attorney(s) responsible for the litigation,
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`must be present and legally and factually prepared to discuss and resolve the case at the
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`mandatory settlement conference. Retained outside corporate counsel shall not appear on
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`behalf of a corporation as the party who has the authority to negotiate and enter into a
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`settlement. Failure to attend the conference or obtain proper excuse will be considered
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`10.
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`In order to identify the claims to be tried and eliminate delay and surprise at
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`trial, the Court enters the following pretrial order pursuant to Fed. R. Civ. P. 16.
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`11. Parties are excused from the requirement of Local Rule 16.1(f)(2)(a); no
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`Memoranda of Law or Contentions of Fact are to be filed.
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`12. All parties or their counsel shall fully comply with the Pretrial Disclosure
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`requirements of Fed. R. Civ. P. 26(a)(3) on or before February 21, 2020. Failure to
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`comply with these disclosures requirements could result in evidence preclusion or other
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`13. Pursuant to Local Civil Rule 16.1(f)(4), on or before February 28, 2020, the
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`parties shall meet and confer to comply with the provisions of that section and prepare a
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`proposed pretrial order in accordance with Local Rule 16.1(f)(6)(c), and containing the
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`following:
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`a.
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`A joint neutral statement to be read to the jury, not in excess of one
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`page, of the nature of the case and the claims and defenses.
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`b.
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`A list of the causes of action to be tried, referenced to the Complaint
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`[and Counterclaim if applicable]. For each cause of action, the order shall succinctly list
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`the elements of the claim, damages and any defenses. A cause of action in the Complaint
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`[and/or Counterclaim] which is not listed shall be dismissed with prejudice.
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`c.
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`A list, in alphabetical order, of:
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`i.
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`Each witness counsel actually expect to call at trial with a brief
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`statement, not exceeding four sentences, of the substance of the
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`witnesses’ testimony.
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`ii.
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`Each expert witness counsel actually expect to call at trial with
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`a brief statement, not exceeding four sentences, of the substance
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`of the expert witnesses’ testimony.
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`iii.
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`Additional witnesses, including experts, counsel do not expect
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`to call at this time but reserve the right to call at trial along with
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`a brief statement, not exceeding four sentences, of the substance
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`of the witnesses’ testimony.
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`d.
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`A list of:
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`i.
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`All exhibits that counsel actually expect to offer at trial with a
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`one-sentence description of the exhibit. All exhibits are to be
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`identified numerically, plaintiff starting with “1” and defendant
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`beginning with an agreed upon numerical designation.
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`ii.
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`All other exhibits that counsel do not expect to offer at this time
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`but reserve the right to offer if necessary at trial with a one-
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`sentence description of the exhibit.
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`e.
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`A statement of all facts to which the parties stipulate. This statement
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`shall be on a separate page and will be read to and provided to the jury.
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`f.
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`A list of all deposition transcripts by page and line, or videotape
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`depositions by section, that will be offered at trial.
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`g.
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`Counsel will note any objections they have to any other parties’ Fed.
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`R. Civ. P. 26 (a)(3) Pretrial Disclosures.
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`The Court encourages the parties to consult with the assigned Magistrate Judge to
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`work out any problems in preparation of the proposed pretrial order. District Judge
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`Bencivengo will entertain any questions concerning the conduct of the trial at the pretrial
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`conference.
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`27. Counsel for plaintiff will be responsible for preparing the pretrial order and
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`arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f)(6)(a). On or
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`before March 6, 2020, plaintiff’s counsel must provide opposing counsel with the
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`proposed pretrial order for review and approval. Opposing counsel must communicate
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`promptly with plaintiff’s attorney concerning any objections to form or content of the
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`pretrial order, and both parties should attempt promptly to resolve their differences, if
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`28. The proposed final pretrial conference order, including objections counsel
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`have to any other party’s Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared,
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`served and lodged with District Judge Bencivengo chambers on or before March 13,
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`2020, and shall be in the form prescribed in and in compliance with Local Rule
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`16.1(f)(6)(c). Counsel shall also bring a court copy of the pretrial order to the pretrial
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`29. The final pretrial conference shall be held before the Honorable Cathy A.
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`Bencivengo, United States District Court Judge, on March 20, 2020 at 2:30 p.m., during
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`which time the Court will address the submission of motions in limine, trial briefs,
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`proposed voir dire and jury instructions and the trial schedule.
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`30. The dates and times set forth herein will not be modified except for good
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`31. Plaintiff’s counsel shall serve a copy of this order on all parties that enter
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`this case hereafter.
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`IT IS SO ORDERED.
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`Dated: 8/21/2019
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