Case 1:12-cv-01601-LPS Document 222 Filed 12/07/20 Page 1 of 7 PageID #: 7525
`
` THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`Civil Action No. 12-1601-LPS
`
`
`
`Civil Action No. 13-919-LPS
`
`)
`)
`
`))
`
`)
`)
`)
`
`))
`
`)
`
` )
` )
` )
` )
` )
` )
` )
` )
` )
`
`ARENDI S.A.R.L.,
`
`Plaintiff,
`
`v.
`
`
`MOTOROLA MOBILITY LLC
`f/k/a MOTOROLA MOBILITY INC.,
`
`Defendant.
`
`ARENDI S.A.R.L.,
`
`Plaintiff,
`
`v.
`
`GOOGLE LLC,
`
`Defendant.
`
`ORDER GOVERNING 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 7th day of December 2020.
`
`MEDIATION CONFERENCE
`
`1.
`
`A mediation conference is scheduled with Plaintiff and Defendant(s) for
`
`Thursday, March 11, 2021, beginning at 10:00 a.m. All required participants (see ¶ 3) are to
`
`report at this time to Courtroom 2A.
`
`TIMING OF ARRIVAL AND DEPARTURE FROM MEDIATION
`
`2.
`
`Unless otherwise notified by the Court, the mediation conference will begin at
`
`

`

`Case 1:12-cv-01601-LPS Document 222 Filed 12/07/20 Page 2 of 7 PageID #: 7526
`
`10:00 a.m. and parties should expect it will last until 5:00 p.m. Thus, required participants
`
`attending the mediation should not make air or train reservations that would require them to
`
`leave Judge Burke’s Chambers prior to 5:00 p.m. (unless the Court has previously indicated that
`
`it will excuse those persons from the mediation early). To the extent that the mediation ends
`
`prior to 5:00 p.m. because no further progress can be made, or because the parties reach
`
`agreement on settlement, required participants will be excused by the Court at that time and may
`
`then leave the courthouse. If a mediation is still ongoing at 5:00 p.m., Judge Burke will then talk
`
`with the parties to determine whether there is joint interest in extending the mediation. If any
`
`party has questions about these timing requirements, they should contact Judge Burke’s
`
`Chambers by phone in advance of the mediation to address those questions.
`
`REQUIRED PARTICIPANTS
`
`3.
`
` Each party must be represented at the mediation conference by at least one of
`
`each of the following types of required participants, each of whom should be very familiar with
`
`the case: (a) Delaware counsel; (b) outside counsel (if the case is not being litigated exclusively
`
`by Delaware counsel); and (c) a party representative who has full authority to act on behalf of
`
`that party.
`
`A representative with “full authority” for example, is someone who, if persuaded during
`
`mediation that their side should offer or accept a certain amount of money to settle the case, has
`
`the ability, on the spot, to authorize the offer or acceptance of such a payment—even if prior to
`
`the start of the mediation that representative’s party had not expected to offer or accept a
`
`payment of that size. A representative with “full authority” is also someone who has knowledge
`
`of the dispute and has knowledge of the business objectives and operations of the
`
`2
`
`

`

`Case 1:12-cv-01601-LPS Document 222 Filed 12/07/20 Page 3 of 7 PageID #: 7527
`
`representative’s company (if applicable), so that the representative can generate and consider
`
`solutions in real time during the mediation. If any party has any questions as to whether they are
`
`able to bring a representative with settlement authority to the mediation, they should contact
`
`Judge Burke’s Chambers by phone in advance of the mediation to address those questions.
`
`In-person attendance at the mediation conference by the required participants described
`
`above is required unless otherwise authorized by the Court. Any request to modify this in-
`
`person-attendance requirement shall be made in writing to the Magistrate Judge, with a copy to
`
`all counsel or pro se parties, no later than fourteen (14) days before the mediation conference.
`
`CONTACT INFORMATION FOR REQUIRED PARTICIPANTS
`
`4(a). No later than the date on which mediation statements are due (see ¶ 5 below),
`
`counsel shall provide to the Court in a writing separate from the mediation statement, for each
`
`attorney who will be attending the mediation conference: (i) a direct dial work telephone
`
`number, (ii) a cellular or home telephone number, and (iii) an electronic mail address where the
`
`attorney can be regularly reached. Unrepresented parties shall provide at least one of these three
`
`forms of contact information.
`
`4(b). No later than the date on which mediation statements are due (see ¶ 5 below),
`
`counsel shall submit a list of all participants, including attorney and non-attorney
`
`representatives who will be attending mediation on behalf of their party, to the opposing party
`
`or parties. If a party has concerns regarding the disclosed attendees for the opposing party, they
`
`should raise those concerns promptly with counsel for the opposing party and with the Court.
`
`CONFIDENTIAL MEDIATION STATEMENTS
`
`5.
`
`On or before March 4, 2021, an original and one copy of a confidential mediation
`
`3
`
`

`

`Case 1:12-cv-01601-LPS Document 222 Filed 12/07/20 Page 4 of 7 PageID #: 7528
`
`statement containing all of the information required by ¶ 7 shall be submitted only to the
`
`Magistrate Judge. The mediation statements shall be delivered to the Clerk’s Office in an
`
`envelope addressed to U. S. Magistrate Judge Christopher J. Burke and marked
`
`“CONFIDENTIAL MEDIATION STATEMENT.” The statements shall not be exchanged
`
`among the parties or counsel (unless the parties jointly agree to do so), 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.
`
`6.
`
`The mediation statements may be in memorandum or letter form. They must be
`
`double-spaced, in no less than a 12-point font, and be no longer than fifteen (15) pages.
`
`7.
`
`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
`
`relationship, if any, to each other, and by whom each party is represented, including the identity
`
`of all individuals who will be participating on behalf of a party during the mediation conference.
`
`b)
`
`“Factual Background”: Provide a brief factual background, clearly
`
`indicating which material facts are not in dispute and which material facts remain in dispute.
`
`c)
`
`“Summary of Applicable Law”: Provide a brief summary of the law,
`
`including applicable statutes, cases and standards. Copies of any unreported decisions
`
`(including decisions from this jurisdiction) that counsel believes are particularly relevant should
`
`be included as exhibits (see ¶ 8). It is helpful to the Court, particularly with regard to complex
`
`litigation in which a large number of legal issues are pending and unresolved, if counsel for all
`
`sides can communicate with each other in advance of filing the mediation statement, in order to
`
`4
`
`

`

`Case 1:12-cv-01601-LPS Document 222 Filed 12/07/20 Page 5 of 7 PageID #: 7529
`
`attempt to ensure that all of parties will address the same key legal issues in their respective
`
`statements.1
`
`d)
`
`“Honest Discussion of Strengths and Weaknesses”: Provide an
`
`honest discussion of the strengths and weaknesses of the party's claims and/or defenses. This
`
`section should include description of both strengths and weaknesses— not just the former.
`
`e)
`
`“Settlement Efforts”: Provide a brief description of prior settlement
`
`negotiations and discussions, including the most recent offers or demands exchanged between
`
`the parties, the reasons for rejection, and the party's assessment as to why settlement has not been
`
`reached.
`
`f)
`
`“Settlement Proposal”: Describe the party’s proposed framework for a
`
`resolution (i.e., describe what the material components of a settlement agreement are from the
`
`party’s perspective and provide a proposal as to what the content of each of those components
`
`should be). Identify any interests or issues not directly involved in this matter that may frustrate
`
`or further settlement. If the party has any suggestions as to how the Court may be helpful in
`
`reaching a resolution, such suggestions should also be described.
`
`g)
`
`“Fees and Costs”: List separately each of the following: (i) attorneys’
`
`fees and costs incurred to date; (ii) other fees and costs incurred to date; (iii) good faith estimate
`
`of additional attorneys’ fees and costs to be incurred if this matter is not settled; and (iv) good
`
`faith estimate of additional other fees and costs to be incurred if this matter is not settled.
`
`In addition to the required topics described above, and provided that the mediation
`
`1
`
`In patent cases, the parties need not provide a summary of applicable law as to issue
`areas that are common to most such cases (e.g., the legal requirements for direct and indirect patent
`infringement or for demonstrating patent invalidity). However, to the extent that the case involves
`legal issues that do not commonly arise in every patent litigation, a summary of applicable law as
`to those issues would be helpful.
`
`5
`
`

`

`Case 1:12-cv-01601-LPS Document 222 Filed 12/07/20 Page 6 of 7 PageID #: 7530
`
`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.
`
`8.
`
`Pertinent documents may be submitted as exhibits to the mediation statement.
`
`Counsel are requested to limit such exhibits to those that are most directly relevant to
`
`the mediation.2
`
`CONFIDENTIALITY
`
`9.
`
`The contents of the mediation statements and the mediation conference
`
`discussions, including any resolution or settlement, shall remain confidential, shall 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 admission. Breach of this provision shall subject
`
`the violator to sanctions.
`
`EX PARTE CONTACTS
`
`10.
`
`Before, during, and after the scheduled mediation conference, the Court may find
`
`it necessary and useful to communicate with one or more parties outside the presence of the
`
`other party or parties.
`
`REQUEST TO BRING ELECTRONIC EQUIPMENT
`
`11(a). Possession by an attorney of an electronic device is permitted in accordance with
`
`this Court's Standing Order regarding possession by attorneys of cell phones, other PDA devices,
`
`and laptop computers, dated November 17, 2011. Any request that representatives of a party be
`
`permitted to bring electronic equipment to the mediation conference shall be made in writing by
`
`counsel and shall be submitted in a separate letter no later than the date on which mediation
`
`statements are due (see ¶ 5 above). The request shall include the name(s) of the individual(s), a
`
`2
`
`In a patent case, the Plaintiff(s) should include the patent(s)-in-suit as an
`exhibit/exhibits to their mediation statement.
`
`6
`
`

`

`Case 1:12-cv-01601-LPS Document 222 Filed 12/07/20 Page 7 of 7 PageID #: 7531
`
`list of the equipment requested to be authorized, and a representation that counsel believes the
`
`presence of the requested equipment will be of assistance in the mediation process.
`
`11(b). To obtain WiFi access for the date(s) of mediation, counsel are directed to the
`
`Court’s website. It is the responsibility of Delaware counsel to complete and submit the required
`
`form on the website to obtain authorization of the Court, no later than 5 business days prior to
`
`the date on which the mediation conference is scheduled. Failure to submit the request in
`
`accordance with the Court’s website will result in the request being denied.
`
`OBLIGATION OF GOOD FAITH PARTICIPATION
`
`12.
`
`The required participants shall be available and accessible throughout the
`
`mediation process. The Court expects the parties' full and good faith cooperation with the
`
`mediation process. In particular, the Court expects both the lawyers and the party
`
`representatives to be fully prepared to participate. The Court encourages all participants to keep
`
`an open mind in order to reassess their previous positions and to find creative means for
`
`resolving the dispute.
`
`AVOIDANCE OF SANCTIONS
`
`13.
`
`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 counsel of this Order.
`
`To avoid the imposition of sanctions, counsel shall advise the Court immediately of any
`
`problems regarding compliance with this Order.
`
`/s/ Christopher J. Burke
`UNITED STATES MAGISTRATE JUDGE
`
`7
`
`