ORDER RE: TRIAL PREPARATION
NATHANAEL M. COUSINS, Magistrate Judge.
A jury trial is currently scheduled in this case for February 2, 2015, in Courtroom
A. The Court now reschedules this trial to February 3, 2015, at the San Francisco Courthouse in Courtroom A, 15th Floor.
This order prepares for the trial. A pretrial conference will be held on January 21, 2015 at 1:00 p.m. at the San Jose Courthouse in Courtroom 7.
I. TRIAL PREPARATION STANDING ORDER
This order is attached and applies to this case.
II. VENUE
The trial is set to be held at the San Francisco Courthouse. The parties should indicate in their pretrial conference statement whether they wish to transfer venue to the San Jose Courthouse.
III. MOTIONS IN LIMINE
The parties must file their motions in limine by January 14, with responses due by January 19. No party may file a reply without leave of Court. The total number of pages each party submits for all motions and all responses must not exceed 15 pages. While it is up to each party to decide how much space to allocate for their motions and how much for their responses, the parties must each stay within the 15-page limit (e.g., a party can allocate 9 pages for their motions, and 6 pages for their responses). The Court will hold a hearing on the motions in limine at the pretrial conference.
IV. JOINT TRIAL READINESS BINDER
The parties are ordered to provide the Court with two copies of a Joint Trial Readiness Binder. The documents and binder are due January 19 at 12 p.m. at the San Jose Courthouse. The Joint Trial Readiness Binders must contain an index and copies of filed documents with the ECF header reflecting the item's docket number and filing date, including:
A. Proposed Order Re Trial Stipulations
The Court expects that the parties will agree to a variety of stipulations regarding the conduct of the trial. A proposed order outlining all such stipulations must be presented to the Court.
B. Witness Lists
The parties must submit an updated list of all witnesses likely to be called at trial (other than solely for impeachment or rebuttal), with a brief statement following each name describing the substance of the testimony to be given and a time estimate of the direct and cross examinations. This information must be presented in chart format and organized by party. Witnesses who will be testifying as experts should be identified as such and included in a separate expert witness list (see below).
C. Expert Witness Lists
The parties must submit an updated list of all expert witnesses with a summary, which must clearly describe the expert's theories and conclusions; a curriculum vitae; and expert reports. Witnesses not included on the list may be excluded from testifying.
D. Updated Exhibit Lists Annotated with Stipulations/Objections
The parties must submit an updated list of all documents and other items to be offered as exhibits at the trial (other than solely for impeachment or rebuttal), with a brief description of each exhibit's contents, and the identity of each sponsoring witness. As applicable, the exhibit list must specify whether the parties stipulate to admit the exhibit or the grounds for any objections to the exhibit. The exhibit list must also include an additional column so that the Court can track the date on which each exhibit is admitted. Prior to submitting the list, the parties must meet and confer and attempt to stipulate as to the admissibility of each exhibit. This information must be presented in chart format and organized numerically.
E. Updated List of Discovery Excerpts
The parties must list those excerpts from depositions, from interrogatory answers, or from responses to requests for admission (other than those solely for impeachment or rebuttal) likely to be used at trial. Prior to submitting the list, the parties must meet and confer and attempt to resolve any disagreements regarding designations or counter-designations. The parties must (i) identify any remaining legal objections to the excerpts on the list itself, and (ii) attach in a separate appendix copies of the disputed excerpts so that the Court can review the disputed materials. The parties must provide a single proposed order with each disputed designation, which will allow the Court to rule whether permission to use each is granted, granted with modification, or denied.
V. ELECTRONIC COPIES OF TRIAL DOCUMENTS
The parties must send an electronic copy in Word format to ncpo@cand.uscourts.gov of the following documents listed above: (i) Proposed Order Re Trial Stipulations; and (ii) Proposed Order Re Discovery Excerpts.
VI. STIPULATIONS RE ADMISSIBILITY
The parties must make a good faith effort to stipulate to exhibits' admissibility. If stipulation is not possible, the parties must make every effort to stipulate to authenticity and foundation absent a legitimate objection.
VII. EXHIBITS
A. Copies of Exhibits to Court
Exhibits must be provided to the Court by January 19 at 12 p.m. at the San Jose Courthouse as follows: two sets of exhibits marked, tabbed, indexed, and to be provided in binders. Exhibit sets may be delivered/mailed directly to Chambers in San Jose. The parties must otherwise coordinate with the Courtroom Deputy for other delivery.
Each exhibit must be pre-marked with an exhibit tag placed in the top right corner of the first page of a document. Parties are to use a color other than white for the exhibit tags. A page of blank trial exhibit tags can be found on the Court's website. If an exhibit is a physical object (rather than a document), a picture should be taken and placed in the binder.
B. Disposition of Exhibits after Trial
Upon the conclusion of the trial, each party must retain its exhibits through the appellate process. It is each party's responsibility to make arrangements with the Clerk of Court to file the record on appeal.
VIII. SCHEDULING OF JURY SELECTION
The jury will be selected February 3. Opening statements and the first witness will be called February 4.
IX. SUMMARY OF CASE STATEMENT
By January 14, the parties must jointly submit an agreed-upon summary of the case, not to exceed one page. This statement of the case will be read to the jury at jury selection. If the parties cannot agree on such a statement, each party must submit their own summary, not to exceed one page.
X. SETTLEMENT CONFERENCE
The parties should indicate whether they request referral to a magistrate judge for settlement conference before trial.
XI. TRIAL LIMITS
The Court will impose time limits on each side to present their case. The parties should propose what time limits they believe are appropriate.
XII. MISCELLANEOUS
A. Witness Photographs
The Court may take a photograph of each witness prior to the witness' testimony to assist the trier of fact with recalling the testimony. Please advise your witnesses.
B. Electronic Equipment
If a party wishes to use electronic equipment or other large items (such as bookshelves), the party must file a request and proposed order with the Court by October 10.
Equipment not provided by the Court must be tested in the courtroom prior to the day when it will be used. Arrangements may be made with the Courtroom Deputy, Lili Harrell at (415) 522-2039 or (408) 535-5343, as to an appropriate time for doing so.
C. Questions from Jury
The Court will give an instruction to allow questions from the jury in accordance with Ninth Circuit Model Instruction 1.15 ("Questions to Witnesses by Jurors").
IT IS SO ORDERED.
TRIAL PREPARATION STANDING ORDER MAGISTRATE JUDGE NATHANAEL M. COUSINS
MEET AND CONFER REQUIREMENT
Counsel for all parties must meet and confer at least twenty days prior to the pretrial conference to discuss the content of the joint pretrial conference statement, the preparation, exchange, and lodging of other pretrial materials, and the settlement of the action.
PRETRIAL CONFERENCE STATEMENT
No less than fourteen days before the pretrial conference, the parties must file in ECF a joint pretrial statement that contains (1) a brief description of the issues to be decided; (2) a detailed description of the relief sought and the evidentiary material to be presented in support of such relief; (3) a concise statement of all undisputed and stipulated facts; (4) a list of all factual issues to be tried; (5) a list of proposed stipulations for pretrial and trial purposes; (6) a concise statement by each party of each disputed point of law concerning liability or relief; (7) each party's proposed conclusions of law if the action is to be tried without a jury; (8) a list of witnesses that each party intends to call at trial and a description of the testimony each witness will give; (9) a list of items to be offered as exhibits at trial, including a description of the substance of and each party's objections to each exhibit; (10) an estimate of the number of court days each party will need to present its case; (11) a list of all outstanding motions; (12) the status of settlement negotiations and a statement as to whether further negotiations would be productive; and (13) a statement concerning whether bifurcation or a separate trial of individual issues is necessary.
WITNESSES
No party will be permitted without leave of court to call in its case-in-chief any witness who is not disclosed in that party's pretrial statement.
EXPERT WITNESSES
A party intending to call an expert witness must provide to all other parties and submit to the Court a copy of the curriculum vitae of and any reports prepared by the expert witness.
JURY INSTRUCTIONS
If applicable, the parties must submit jointly to the Court via mail and via email in WordPerfect format to ncpo@cand.uscourts.gov a set of jury instructions no less than fourteen days before the pretrial conference. If any instructions are contested, each party must state the legal basis for proposing or opposing the instructions.
EXHIBITS
Each party must provide to every other party a copy of all proposed exhibits. No less than fourteen days prior to the pretrial conference, the parties must stipulate to the admissibility of each proposed exhibit. If a stipulation is not possible with respect to any exhibit, each party must describe in the joint pretrial statement the basis for offering or objecting to that exhibit. No party will be permitted without leave of court to offer any exhibit in its case-in-chief that is not disclosed in that party's exhibit list.
AGENDA FOR PRETRIAL CONFERENCE
At the pretrial conference, the Court will (1) set a briefing schedule for any pretrial motions, including motions in limine; (2) allocate a fixed amount of time to each party for the direct and cross-examination of witnesses and for opening and closing statements; (3) set specific dates and times for the trial; (4) for jury trials, determine the number of prospective jurors to be summoned and seated and establish whether a jury questionnaire will be used to assist in jury selection; and (5) consider any other relevant trial management matter.
SETTLEMENTS AND CONTINUANCES
Unless and until a stipulated dismissal or judgment is filed, all parties must be prepared to proceed with the pretrial conference and trial as scheduled. Only a continuance expressly approved by the Court will release the parties from their obligation to proceed. The parties must notify the Court immediately in writing if they expect to reach a final settlement before the pretrial conference or trial.
SANCTIONS
Sanctions under Federal Rule of Civil Procedure 16(f) may be imposed on any party that fails to comply with this order.
IT IS SO ORDERED.
