PRETRIAL ORDER
SHEILA K. OBERTO, Magistrate Judge.
The Court conducted a pretrial conference in this case on February 2, 2017. Dylan Liddiard and Craig Bolton appeared on behalf of Plaintiff/Counter-Defendant G.P.P., Inc., doing business as Guardian Innovative Solutions ("GIS"). Aaron Rudin and Calvin Davis appeared on behalf of Defendant/Counterclaimant Guardian Protection Products, Inc. ("Guardian") and Defendant RPM Wood Finishes Group, Inc. ("RPM"). Pursuant to Federal Rule of Civil Procedure 16(e) and Rule 283 of the Local Rules of the United States District Court, Eastern District of California, the Court issues the following Pretrial Order.
A. JURISDICTION AND VENUE
Jurisdiction is predicated upon 28 U.S.C §§ 1332(a)(1) and 1367(a), and the Eastern District of California is the proper venue pursuant to 28 U.S.C. § 1391(b). The parties do not dispute jurisdiction or venue.
B. JURY TRIAL
This case will be tried before a jury.
C. TRIAL DATE AND ESTIMATED LENGTH
Trial will commence on Tuesday, March 21, 2017, at 8:30 a.m. before U.S. Magistrate Judge Sheila K. Oberto in Courtroom 7 (SKO). The parties estimate that the trial will require approximately 5-7 days. The parties are reminded that this Court holds full trial days and the parties are expected to have witnesses ready every day to avoid wasting jury time.
D. UNDISPUTED FACTS
1. The Parties
a. GIS, a Pennsylvania corporation based in Pitcairn, Pennsylvania, is a Gibson family-run business that, together with its predecessors, has been a warehousing distributor for Guardian for nearly three decades.
b. Frank Gibson is GIS's President.
c. Christopher Nolan is GIS's Executive Vice-President.
d. Guardian was incorporated under the laws of the State of Delaware on January 14, 2000.
e. Guardian's primary place of business is in Hickory, North Carolina.
f. RPM is a Nevada corporation with its primary place of business in Hickory, North Carolina.
g. Ronnie Holman has been President of both Guardian and RPM since October of 2002.
2. The Warehousing Distributor Agreements
a. On or around May 5, 1988, GIS and Guardian's predecessors entered into a Warehousing Distributor Agreement ("WDA") whereby GIS acquired exclusive distribution rights to Guardian's products in certain counties in Pennsylvania (the "Pennsylvania Agreement").
b. As of January 2013, GIS and Guardian were parties to nine valid WDAs (or "Agreements") which grant GIS the exclusive right to distribute Guardian's products" in all or parts of eleven states and the District of Columbia covered by those various Agreements.
c. GIS became a party to the WDAs on May 5, 1988 (Pennsylvania Agreement), December 6, 1988 (Mid-Atlantic Agreement), April 2, 1990 (Ohio Agreement), April 23, 2007 (Cook County Agreement, Indiana Agreement, and Midwest Agreement), and March 5, 2010 (Alabama Agreement, Florida Agreement, and Tennessee Agreement).
d. The WDAs are governed by California law.
e. The WDAs also contain provisions requiring notice and an opportunity to cure with respect to other acts of material breach (i.e., besides failing to meet the minimum purchase quotas). These clauses prohibit the non-breaching party from terminating the Agreements unless the breaching party fails to cure the breach within a 60-day period following notice.
f. As an exception, the Pennsylvania Agreement provides a 90-day notice and cure period, but only with respect to certain breaches.
3. Guardian's Termination of the Alabama, Florida, and Tennessee Agreements
a. On August 19, 2013, Guardian sent GIS three breach notices related to the Alabama, Florida, and Tennessee Agreements.
b. The numbers cited in Guardian's notices of breach of the Alabama, Florida, and Tennessee Agreements included the sale of electronic furniture protection plans.
c. On October 23, 2013, Guardian sent notices of termination of the Alabama, Florida, and Tennessee Agreements.
d. Guardian has not terminated the Pennsylvania, Mid-Atlantic, Ohio, Cook County, Indiana, or Midwest Agreements.
e. On December 9, 2014, in advance of a meeting in Pittsburgh that the parties had scheduled, Guardian sent GIS a memorandum which stated: "In preparation for our upcoming coming meeting, I am sending you a draft Agreement and this Memo to guide our discussion." The December Memo states as follows: "Executive Summary: The old contracts held by GIS are no longer applicable to the current business, nor are they relevant to the current business model. Moreover, the dated quotas do not allow for today's market size. Corporate Guardian is seeking new contracts that reflect the current business relationship, and provide the appropriate market penetration to justify exclusive distribution rights."
E. DISPUTED FACTUAL AND LEGAL ISSUES
1. GIS's Statement of Disputed Factual Issues:
a. Purchase Quotas Under the Alabama, Florida, and Tennessee Agreements
i. Whether Guardian had the right to terminate the Alabama, Florida, and Tennessee Agreements (as opposed to merely asserting a breach of contract) on account of GIS allegedly failing to its meet its purchase quota in any given month; or, whether Guardian's termination rights are limited only to instances where GIS fails to meet its annual quota over a 12-month contract term.
ii. Whether Guardian properly terminated the Alabama, Florida, and Tennessee Agreements on the grounds that GIS allegedly failed to meet its purchase quotas for the specific months of June and July, 2013 in the specific states of Alabama, Florida, and Tennessee.
iii. Whether GIS did, in fact, fail to meet its purchase quota under the WDAs.
iv. Whether Guardian frustrated GIS's contractual right to cure its alleged breach of its quota within 60 days of Guardian's notices of breach, thereby excusing GIS's alleged nonperformance.
b. Implied Covenant of Good Faith and Fair Dealing Under the WDAs
i. Whether Guardian violated the implied covenant of good faith and fair dealing under the WDAs by devising a scheme to improperly terminate the Alabama, Florida, and Tennessee Agreements as a means to deprive GIS of its rights under those Agreements, pressure GIS into giving up the rest of its territory, and accede to a new distribution agreement with terms heavily in Guardian's favor.
ii. Whether Guardian threatened to terminate all WDAs—in addition to the Alabama, Florida, and Tennessee Agreements—if GIS did not agree to a new distribution agreement with terms heavily in Guardian's favor.
iii. Whether Guardian frustrated GIS's right to benefit from the notice-and-cure provisions of the Alabama, Florida, and Tennessee Agreements by refusing to allow GIS to purchase additional products in order to cure any alleged shortfall under those Agreements.
iv. Whether Guardian deprived GIS of revenue it could use to fund a defense against its conduct by selling products directly to customers within GIS's Exclusive Territories (including Bob's Discount Furniture and Renaissance) and refusing to share revenue from those sales with GIS.
c. Bob's Discount Furniture
i. Whether the parties entered into a binding "Bob's Discount Furniture Agreement," supported by valid consideration, concerning Guardian's direct sale of warranties to Bob's Discount Furniture retail locations within GIS's Exclusive Territories.
ii. Whether the Bob's Discount Furniture Agreement, if valid and binding, was unilaterally terminable at will by Guardian; or, whether the Agreement requires Guardian to continue making commission payments to GIS so long as Guardian continues to sell products to Bob's locations within GIS's Exclusive Territories.
iii. Whether Guardian breached the Bob's Discount Furniture Agreement by unilaterally deciding to stop making commission payments in December 2014.
d. Renaissance
i. Whether Guardian breached the Mid-Atlantic Agreement by selling electronic warranties directly to Renaissance without GIS's knowledge or consent.
ii. Whether Guardian's unilateral classification of Renaissance as a "national account" revokes GIS's exclusive right to sell Guardian products covered by the WDAs to that customer under the Mid-Atlantic Agreement.
e. RPM
i. Whether RPM is an alter ego of Guardian.
ii. Whether RPM tortiously interfered with GIS's contractual relationship with Guardian.
f. Electronic Furniture Protection Plans Under the WDAs
i. Whether electronic warranties are covered by the WDAs.
g. Franchise Law and Unfair Competition Claims
i. Whether Defendants' conduct violated the California Corporations Code Sections 31000-21516.
ii. Whether Defendants' conduct violated California Business and Professions Code Sections 17200-17210.
h. dreamGUARD
i. Whether CDFC is an alter-ego of GIS, and thereby bound by the non-compete provisions in the WDAs.
ii. Whether GIS violated the non-compete provisions of the WDAs on account of CDFC's sale of dreamGUARD mattress protector products.
iii. Whether the dreamGUARD mattress protector product is, in fact, a "competing product" as that term is defined under the WDAs.
iv. Whether Guardian, through its conduct, has waived its right to sue GIS or terminate the WDAs on account of dreamGUARD sales, or is estopped from preventing the continued sales of those products in the future.
i. Damages
i. GIS contends that it has suffered, and will continue to suffer, lost profits, increased costs, expenditure of attorneys' fees, and loss of good will as a direct result of Guardian's wrongful termination of the Alabama, Florida, and Tennessee Agreements and threatened termination of all remaining WDAs. For example, GIS contends that the ongoing threat of termination of the WDAs has remained ever present, adversely affecting GIS's business and business decisions and freezing its ability to grow that business. GIS's expert, Peter Wrobel, calculated GIS's lost profits based, among other things, on testimony and documentary evidence provided by Guardian regarding the value of the furniture protection products business in GIS's territories and Guardian's expectation that GIS could achieve an approximate 30% market share in all of those territories. Based on his analysis, Mr. Wrobel determined with reasonable certainty that GIS's lost profits are $74,469,048 as a result of a permanent impairment to GIS's business. Mr. Wrobel also determined that GIS has and will suffer lost commissions totaling $1,050,049 due to Guardian's breach of the Bob's Discount Furniture Agreement, from December 2014 (the time of the breach) through 2024.
2. Defendants' Statement of Disputed Factual Issues:
a. Whether Guardian's transmission of termination notices on October 23, 2013 ("Termination Notices") with regard to the Florida, Alabama, and Tennessee Agreement breached those contracts.
b. Whether GIS suffered any compensable damages as a result of Guardian's transmission of the Termination Notices.
c. Whether any damages that Guardian suffered as a result of Guardian's transmission of the Termination Notices were reasonable foreseeable.
d. Whether GIS mitigated any damages that it may have suffered as a result of Guardian's transmission of the Termination Notices were reasonable foreseeable.
e. Whether GIS satisfied the purchase quotas in the Florida, Alabama, and Tennessee Agreements for the months of June and July 2013.
f. Whether the so-called Bob's Discount Furniture Agreement was a contract.
g. If the so-called Bob's Discount Furniture Agreement was a contract, whether Guardian properly terminated it.
h. If the so-called Bob's Discount Furniture Agreement was a contract, whether Guardian breached it by selling products covered by that "contract" to Bob's Discount Furniture.
i. Whether Guardian was required to register the Mid-Atlantic Agreement with Maryland regulators under the Maryland Franchise Registration and Disclosure Law.
j. Whether Guardian was required to register the Mid-Atlantic Agreement with New York regulators under the New York Franchises Law.
k. Whether Guardian was required to register the Indiana Agreement with Indiana regulators under the Indiana Franchises Law.
l. Whether Guardian was required to register the Illinois Agreement with Illinois regulators under the Illinois Franchise Disclosure Act.
m. Whether Guardian was required to provide a Uniform Offering Circular ("UFOC") or Franchise Disclosure Document ("FDD") under the Maryland Franchise Registration and Disclosure Law, New York Franchises Law, Indiana Franchises Law, Illinois Franchise Disclosure Act, FTC Franchise Rule, and/or the California Franchise Investment Law, with regard to the WDAs or the "2015 Form Agreement."
n. Whether the statute of limitations on GIS's claim under Business & Professions Code section 17200 expired before it filed the instant action.
o. Whether the 2015 Form Agreement constituted a franchise under the California Franchise Investment Law, the FTC Franchise Rule, or any other franchise law.
p. Whether Guardian "offered" the 2015 Form Agreement to GIS.
q. Whether Guardian was required to register the 2015 Form Agreement with any government regulatory body.
r. Whether Guardian was required to present a UFOC or FDD to GIS in connection with the 2015 Form Agreement.
s. Whether Guardian's alleged presentation of the 2015 Form Agreement caused Guardian to suffer any financial loss.
t. Whether GIS is entitled to restitution under California Business & Professions Code section 17200 in connection with the WDAs or the 2015 Form Agreement and, if so, in what amount.
u. Whether the electronic furniture protection plans constitute "Guardian Products" within the meaning of the Pennsylvania Agreement, Ohio Agreement, Cook County Agreement, Indiana Agreement, Midwest Agreement, Alabama Agreement, and Tennessee Agreement and, if so, whether Guardian has the right to establish a purchase quota above in sums additional to the quotas set forth in those WDAs.
v. Whether GIS's alter-ego's sale of micro-fleece mattress pads violates the WDAs.
w. Whether GIS's alter-ego's micro-fleece mattress pads that it sells are of comparable claims or qualities to mattress pads that Guardian sells.
x. Whether RPM directed or caused GIS to fail to perform under the WDAs.
y. Whether Guardian is RPM's alter ego.
z. Whether CDFC, Inc. is GIS's alter ego.
aa. Whether Guardian may be held liable for any acts relating to the WDAs, including breach thereof, by the party that assigned the WDAs to Guardian in 2000 or any of its predecessors.
bb. Pursuant to Local Rule 281(b)(6)(iii), Guardian and RPM incorporate the following Specific Factual Information In Actions Involving Contracts
i. Warehousing Distributor Agreements
• The terms of the nine Warehouse Distributor Agreements ("WDAs") are set forth in the writings attached as exhibits 1 through 9 to CM/ECF Document No. 120.
• The WDAs and any modifications (i.e., addendum and exhibits) are written; not oral. Any modifications are set forth in the writings attached as exhibits 1 through 9 to CM/ECF Document No. 120.
• None.
• GIS breached the WDAs by selling a competing micro-fleece mattress protector under the dreamGUARD brand name and by failing to satisfy the purchase quotas in the Alabama, Florida, and Tennessee Agreements for the months of June and July, 2013.
• No issues of waiver or estoppel.
• Monetary damages, injunctive relief, and attorneys' fees and costs.
• As to monetary damages — benefit of the bargain (i.e., lost profits, etc.)
i. Bob's Discount Furniture Agreement.
• Guardian and RPM deny that the so-called Bob's Discount Furniture Agreement was ever a contract. On December 22, 2010, Guardian's President, Ronnie Holman, orally notified GIS's Charles Gibson, Sr., Frank Gibson, and Christopher Schall, in a face-to-face meeting, that Guardian would do for GIS what it was doing for Metro Guardian, another distributor with an adjacent geographic territory. At that point, Guardian was paying Metro Guardian five percent of the revenue that Guardian received from its sale of so-called "paper" warranties (i.e., those that Guardian issued on paper itself), the only "warranties" that Guardian then sold, if those sales occurred at Bob's locations inside the geographic areas covered by Metro's WDA. Mr. Holman stated that Guardian would to do the same thing for sales of that nature in the territories encompassed by GIS's WDAs. GIS promised nothing in return. Mr. Holman made the representation not in exchange for a GIS promise (which Guardian never received) but, rather, because Mr. Schall had complained about the payments that Guardian was making to Metro Guardian on warranty sales at Bob's locations inside Metro Guardian's territory, payments that Guardian made only as an accommodation to Metro Guardian and not because of any contractual obligation. The parties never discuss the length of the so-called contract nor the circumstance under which Guardian could terminate the so-called "Bob's Discount Furniture Agreement."
• Guardian and RPM contend that no so-called "Bob's Discount Furniture Agreement" was ever made, let alone subsequently modified. Nevertheless, Guardian and RPM note that Messrs. Holman and Schall exchanged e-mails in January of 2011, about Mr. Holman's December 22, 2010, statement.
• Guardian and RPM contend that no so-called "Bob's Discount Furniture Agreement" was ever made and, thus, has no validity.
• Guardian and RPM contend that no so-called "Bob's Discount Furniture Agreement" was ever made, let alone breached.
• Guardian and RPM contend that no so-called "Bob's Discount Furniture Agreement" was ever made. Thus, there are no issues of waiver or estoppel.
• Guardian and RPM seek dismissal of GIS's claims relating to the so-called "Bob's Discount Furniture Agreement."
• Guardian and RPM seek no monetary of other affirmative relief relating to the so-called "Bob's Discount Furniture Agreement."
F. DISPUTED EVIDENTIARY ISSUES
Guardian has offered the expert testimony of Karl Schulze with respect to, among other things, the reasonableness and reliability of Guardian using an internally generated sales report to estimate GIS's purchases on a per-month, per-territory basis. GIS opposes the introduction of this evidence at trial because, inter alia, it is an improper subject for expert testimony and, further, fails to meet the requirements of FRE 702 and 703.
GIS believes that Guardian intends to offer evidence regarding other businesses owned by the Gibson Family, other than GIS and CDFC, Inc. GIS opposes the introduction this evidence because, inter alia, it is inadmissible under FRE 403 as it is irrelevant to the issues in dispute and risks unfairly prejudicing GIS.
GIS believes that any evidentiary disputes should be resolved by motion in limine prior to trial, to the extent practicable for the Court and parties to do so. GIS continues to evaluate its case as it prepares for trial and reserves the right to seek relief with respect to any evidentiary disputes that may develop or arise in the future.
Guardian and RPM seek the opportunity to file motions in limine seeking to exclude certain witness testimony based on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), as well as, the Court's recent ruling on the parties' motions for summary judgment.
G. SPECIAL FACTUAL INFORMATION
Not applicable.
H. RELIEF SOUGHT
GIS seeks (a) a declaration that the Alabama, Florida, and Tennessee Agreements were not properly terminated and are currently valid and in full effect; (b) an award of compensatory damages for breach of contract in an amount according to proof, including but not limited to all lost profits incurred by GIS resulting from Defendants' alleged wrongful terminations and/or breaches of the WDAs and the Bob's Discount Furniture Agreements; (c) treble and punitive damages; (d) pre-judgment interest; (e) costs of suits, including GIS's actual and/or reasonable attorneys' and experts' fees; and (f) such other relief as the Court deems just and proper.
Guardian and RPM seek:
1. As to monetary damages — benefit of the bargain (i.e., lost profits, etc.).
2. Declaratory Relief that the electronic furniture protection plans ("EFFPs") are not "Guardian Products" with the meaning of the Pennsylvania Agreement, Ohio Agreement, Cook County Agreement, Indiana Agreement, Midwest Agreement, Alabama Agreement, and Tennessee Agreement and, if so, whether Guardian has the right to establish a purchase quota above in sums additional to the quotas set forth in those WDAs. The Court's Order of 1/18/2017 found that EFFPs were not "Guardian Products" as that phrase is used in the Florida and Mid-Atlantic Agreements.
3. Injunctive relief.
4. Attorneys' fees and costs.
5. Judgment of dismissal as to GIS's claims.
I. POINTS OF LAW
At this time, the parties are not aware of any points of law which are disputed, but the parties reserve their rights to address disputes of law which may arise as the case continues.
J. AMENDMENTS, DISMISSALS, AND ABANDONED ISSUES
1. Abandoned Issues
GIS does not anticipate abandoning any issues at this time. Defendants abandon their first, sixth, and eleventh affirmative defenses.
2. Dismissals
Guardian filed its counterclaims against GIS on July 31, 2015. (Doc. 36.) GIS then filed the operative Second Amended Complaint on July 29, 2016. (Doc. 67.) Since that time, the Court dismissed the following causes of action by way of summary judgment:
a. GIS's fifth cause of action in the Second Amended Complaint;
b. GIS's California Franchise Investment Law claim based on the parties' warehousing distributor agreements, as provided in the seventh cause of action in the Second Amended Complaint;
c. Guardian's claims in all of its counterclaims that GIS failed to use best efforts; and
d. Guardian's sixth counterclaim.
3. Amendments
None at this time, although GIS indicated at the pretrial conference that it may seek an amendment in the future.
K. BIFURCATION OF ISSUES AT TRIAL
GIS seeks to have all claims, defenses, and issues tried before the jury in a single global trial. Defendants seek to have their declaratory relief claim tried to the bench in advance of the trial of the remaining matters.
During the pretrial conference in this matter, the parties agreed to address the issue of bifurcation through a motion in limine.
L. FURTHER DISCOVERY OR MOTIONS
On January 26, 2017, Guardian filed a Motion for Clarification, or Reconsideration, of the Court's January 18, 2017 Order Granting in Part and Denying in Part the Parties' Motions for Summary Judgment. (Doc. 143.) GIS filed its opposition to this motion on January 31, 2017. (Doc. 150.) By order of the Court, no reply in support of this motion is allowed. (Doc. 151.)
On January 31, 2017, GIS filed a Motion for Reconsideration of this Court's January 18, 2017 order regarding the parties' motions for summary judgment. (Doc. 147.) Defendants may file an opposition to this motion by no later than February 8, 2017. (Doc. 151.) By order of the Court, no reply in support of this motion is allowed. (Id.)
The Court is scheduled to hear oral argument regarding the parties' motions for reconsideration, (Docs. 143 & 147), on February 15, 2017, at 9:30 a.m. in Courtroom 7. The Court reserves the right to vacate this hearing if it determines that oral argument will not aid the Court in ruling on these two motions.
M. SETTLEMENT NEGOTIATIONS
The parties appeared for a settlement conference before U.S. Magistrate Judge Stanley A. Boone on August 23, 2016, but the case did not settle. A further settlement conference has been set for February 16, 2017, at 1:00 p.m. in Courtroom 10 before U.S. Magistrate Judge Erica P. Grosjean. The parties shall submit confidential settlement statements to EPGorders@caed.uscourts.gov by no later than February 9, 2017.
N. WITNESSES
1. Witness Lists
The following are lists of witnesses that the parties expect to call at trial.
a. GIS's Witness List
i. Frank Gibson (c/o Wilson Sonsini, 650 Page Mill Rd., Palo Alto, CA., 94304);
ii. Christopher Nolan (c/o Wilson Sonsini, 650 Page Mill Rd., Palo Alto, CA., 94304);
iii. Kara Himich (c/o Wilson Sonsini, 650 Page Mill Rd., Palo Alto, CA., 94304);
iv. Peter Wrobel (expert) (c/o Wilson Sonsini, 650 Page Mill Rd., Palo Alto, CA., 94304);
v. Ronnie Holman (P.O. Box 22000, Hickory, N.C., 28603);
vi. Johnny Green (P.O. Box 22000, Hickory, N.C., 28603);
vii. Christopher Taylor (P.O. Box 22000, Hickory, N.C., 28603);
viii. Darin Lease (P.O. Box 22000, Hickory, N.C., 28603); and
ix. Karl Schulze (expert) (660 S. Figueroa St., Suite 1280, Los Angeles, CA. 90017).
b. Defendants' Witness List
i. Charles Gibson (c/o Wilson Sonsini, 650 Page Mill Rd., Palo Alto, CA., 94304);
ii. Deborah Gibson (c/o Wilson Sonsini, 650 Page Mill Rd., Palo Alto, CA., 94304);
iii. Frank Gibson (c/o Wilson Sonsini, 650 Page Mill Rd., Palo Alto, CA., 94304);
iv. Christopher Nolan (c/o Wilson Sonsini, 650 Page Mill Rd., Palo Alto, CA., 94304);
v. Peter Wrobel (expert) (c/o Wilson Sonsini, 650 Page Mill Rd., Palo Alto, CA., 94304);
vi. Ronnie Holman (P.O. Box 22000, Hickory, N.C., 28603);
vii. Johnny Green (P.O. Box 22000, Hickory, N.C., 28603);
viii. Christopher Taylor (P.O. Box 22000, Hickory, N.C., 28603);
ix. Darin Lease (P.O. Box 22000, Hickory, N.C., 28603);
x. Karl Schulze (expert) (660 S. Figueroa St., Suite 1280, Los Angeles, CA. 90017); and
xi. Christopher Schall (28762 Greening St. Farmington Hills, MI., 48334).
2. Notice Regarding Witnesses
The parties are cautioned that every witness they intend to call must appear on that party's witness list. The mere fact that a witness appears on the opposing party's witness list is not a guarantee that the witness will be called at trial or otherwise be available for questioning by other parties. The parties must undertake independent efforts to secure the attendance of every witness each party intends to call at trial.
By no later than Wednesday, March 15, 2017, each party shall file and serve a final witness list, including the name of each witness along with the business or home address of each witness, to the extent known, and omitting witnesses listed in the Joint Pretrial Statement whom the parties no longer intend to call. Only witnesses who are listed in this Pretrial Order may appear on the final witness list. Further, no witness, other than those listed in the final witness list, may be called at trial, with the exception of rebuttal or impeachment witnesses, unless the parties stipulate or upon a showing that this order should be modified to prevent "manifest injustice." Fed. R. Civ. P. 16(e).
O. EXPERT WITNESSES
The parties anticipate calling two expert witnesses total"Peter Wrobel and Karl Schulze.
P. EXHIBITS
By no later than Friday, March 3, 2017, the parties shall exchange their proposed exhibits to the extent they have not already done so. The parties' counsel shall meet and conduct an exhibit conference by no later than Friday, March 10, 2017, to prepare exhibit lists to the extent they have not already done so.1 By no later than Wednesday, March 15, 2017, the parties shall file and serve their final lists of respective pre-marked exhibits. Impeachment or rebuttal evidence need not be pre-marked.
Only those exhibits that are listed in this Pretrial Order may appear on the final exhibit list. Further, no exhibit other than those listed in the final exhibit list may be admitted at trial unless the parties stipulate or upon a showing that this order should be modified to prevent "manifest injustice." Fed. R. Civ. P. 16(e).
If a party attempts to admit or use for any purpose evidence that (1) was not previously disclosed during discovery, and (2) should have been disclosed as an initial disclosure under Rule 26(a), or as a supplemental disclosure under Rule 26(e), the Court will prohibit that party from admitting or using for any purpose that evidence at trial, unless the ailure was substantially justified or was harmless. See Fed. R. Civ. P. 37(c)(1).
By no later than Thursday, March 16, 2017, the parties shall submit to the Clerk's Office all pre-marked documentary trial exhibits, including all originals and three copies. As stated at the pretrial conference, the Court encourages the parties to stipulate to the admission of joint exhibits where possible. The parties anticipate using the exhibits listed below.
1. GIS's Exhibit List
Date Description
1 12/6/1988 Warehousing Distributor Agreement
2 4/2/1990 Warehousing Distributor Agreement
3 4/19/2007 2007 Assignment
4 8/30/1988 Warehousing Distributor Agreement
5 3/15/1999 Warehousing Distributor Agreement
6 5/5/1998 Warehousing Distributor Agreement
7 3/5/2010 2010 Assignment of Contract
8 11/4/1997 Warehousing Distributor Agreement
9 11/17/1988 Warehousing Distributor Agreement
10 12/21/2015 Guardian's Responses to Interrogatories (Set One)
11 12/21/2015 Guardian's Responses to Requests for Admission (Set
One)
12 1/25/2016 GIS's Responses and Objections to Guardian's First
Set of Interrogatories
13 10/4/2016 Guardian's Supplemental Responses to GIS's
Interrogatories (Set Two)
14 1/20/2016 30(b)(6) Deposition of Johnny Green
15 4/21/2016 Deposition of Johnny Green
16 5/12/2016 30(b)(6) Deposition of Ronnie Holman
17 5/25/2016 Deposition of Christopher Taylor
18 5/25/2016 30(b)(6) Deposition of Darin Lease
19 6/16/2016 Deposition of Deborah Gibson
20 6/21/2016 Deposition of Frank Gibson
21 6/23/2016 Deposition of Christopher Nolan
22 10/6/2016 Deposition of Darin Lease
23 9/7/2016 Deposition of Peter Wrobel
24 10/7/2016 30(b)(6) Deposition of Christopher Taylor
25 8/12/2013 Memorandum from Johnny Green to Guardian
Distributors
26 8/19/2013 Notice of breach of the Tennessee Agreement from
Johnny Green to Chuck Gibson
27 8/19/2013 Notice of breach of the Alabama Agreement from
Johnny Green to Chuck Gibson
28 8/19/2013 Notice of breach of the Florida Agreement from
Johnny Green to Chuck Gibson
29 8/30/2013 Letter from Charles Gibson to Johnny Green
regarding notices of breach of the Alabama, Florida,
and Tennessee Agreements
30 10/23/2013 Notices of termination of the Alabama, Florida, and
Tennessee Agreements from Johnny Green to Chuck
Gibson
31 12/9/2014 January 2015 form "Distributorship Agreement"
proposed by Guardian to GIS on December 9, 2014
32 1/13/2011 Email correspondence between Ronnie Holman and
Christopher Schall setting forth terms of the Bob's
Discount Furniture Agreement
33 12/6-10/2013 Email correspondence between Johnny Green and
Frank Gibson discussing Mr. Green's proposed
amendment to the Bob's Discount Furniture
Agreement
34 11/12/2014 Notice of termination of the Bob's Discount Furniture
Agreement from Johnny Green to Chuck Gibson
35 12/9/2014 Memorandum from Johnny Green to Frank Gibson
attaching Guardian's proposed form "Distributorship
Agreement"
36 9/12-15/2014 Email correspondence between Christopher Nolan
and third-party Guardian distributor, Guardian North
Central, regarding distributor's purchase of
dreamGUARD products
37 8/14/2013 Internal Guardian email correspondence re
dreamGUARD, dated August 14, 2013
38 6/1/2012 Authorized Extended Service Program Agreement
between Chartis WarrantyGuard, Inc. ("AIG") and
Guardian
39 6/17/2013 Email correspondence between Kevin Warrix of AIG
and Johnny Green and Darin Lease re Pre-Sell
Proposal
40 7/1/2013 Email correspondence between Kevin Warrix of AIG
and Johnny Green and Darin Lease re Pre-Sell
Proposal, and attachment
41 12/10/2014 Email correspondence between Chris Taylor and
Johnny Green re GIS market potential
42 GUARD Memorandum re GIS market potential, authored by
00000827-932 Johnny Green in advance of February 2015
43 11/30/2014 Email from Johnny Green to Christopher Taylor
regarding GIS Shipment Details
44 8/12/2013 Email correspondence from Darin Lease to Johnny
Green re Quota Methodology
45 6/7/2013 Email correspondence from Greg Webb to Johnny
Green re Distributor Quotas
46 1/17/2015 Internal Guardian document entitled "FY2015
Marketing/Sales" sent from Johnny Green to
Christopher Taylor on January 17, 2015
47 GUARD Guardian internal "FY2015 Competitive Review"
00002491-2496
48 2/4/2013 Email correspondence from Greg Webb to Johnny
Green and Ronnie Homan re Mattress Pads
49 11/5/2014 Email correspondence from Johnny Green to Eugene
Alleto re New Pattern (for mattress pads)
50 GUARD Internal presentation entitled "Business Review &
00008834-8873 Analysis: A 30-Day Perspective," presented by
Johnny Green to Guardian executives in January 2013
51 4/21/2016 Letter from Johnny Green to Chuck Gibson re
Records Request
52 11/30/2014 Internal Guardian spreadsheet entitled "Distribution
Sales by Territory FY14"/cover Email
correspondence between Johnny Green and Darin
Lease enclosing same
53 8/30/2013 Guardian spreadsheet entitled "Individual Distributor
Market Share"/cover Email correspondence between
Johnny Green and GIS enclosing same
54 7/12/2013 Email correspondence between Kevin Warrix of AIG
and Johnny Green and Darin Lease re Pre-Sell
Proposal
55 5/23/2016 Printout from RenCom Group, LLC's (a.k.a.
"Renaissance") website regarding Renaissance's
offering of Guardian furniture protection plans,
printed May 23, 2016
56 2/9/2015 Internal Guardian document entitled "GIS Sales
Performance and Market Share Analysis"
57 GUARD Internal Guardian document entitled "Guardian
00002643-47 Protection Products FY2016 Marketing/Sales"
58 8/30/2013 Email correspondence from Chuck Gibson to Johnny
Green enclosing Sales Quota Action Plan
59 8/22/2013 Email correspondence between Kara Copeland and
Johnny Green re Quota Notices
60 9/27/2013 Email correspondence between Chuck Gibson and
Johnny Green re Quota Letter 2
61 10/25/2013 Email from Frank Gibson to Johnny Green and
Ronnie Holman re GIS Terminations
62 12/2/2013 Email from Frank Gibson to Johnny Green enclosing
letter re terminations
63 1/23/2011 Email correspondence between Ronnie Holman and
Chris Schall re mattress pads
64 2/6/2013 Email correspondence from Chris Nolan to Frank and
Debbie Gibson re conversation with Ronnie Holman
65 \ Internal Guardian spreadsheet entitled "Distribution
Sales by Territory FY2014"
66 9/18/2015 Internal Guardian document entitled "Renaissance
Partners Operational Narrative" drafted by
Christopher Taylor
67 9/29/2014 Email correspondence from Christopher Taylor to
Johnny Green attaching letter from Guardian to
Renaissance regarding proposed business partnership
between the two companies
68 GUARD Spreadsheet produced by Guardian entitled "Bob's
00009205 Sales"
69 GUARD 000423 Copy of Pennsylvania Agreement with attached
"Memorandum #78"
70 GUARD Information pamphlet entitled "Guardian
00000762 Underwritten Warranty Programs: Moving to the
Next Generation of Secure and Compliant Programs,"
regarding Guardian's conversion to electronically-registered
furniture protection plans
71 GUARD Addendum to GUARD 00000762 entitled "Guardian
00000761 Brand Warranty Cover Pages" for electronically-registered
furniture protection plans
72 GUARD Addendum to GUARD 00000762 showing "Terms
00000757 and Conditions" for electronically-registered furniture
protection plans
73 7/18/2014 Email correspondence from Chris Nolan to
Renaissance
74 5/22/2014 Email correspondence from Renaissance to Chris
Nolan
75 6/21/2014 Email correspondence between Renaissance and
Chris Nolan
76 GIS_002145 GIS Purchase Reports Detailing and Summarizing
GIS_002244 Purchases of Guardian Products
77 GIS_003323 GIS P&L Statements for 2010-2015
GIS_003328
78 11/11/2016 Screenshot of Guardian's web page regarding its
electronically-registered furniture protection plans,
https://www.guardianproducts.com/protection-plans/,
taken on November 11, 2016
79 12/12/2016 Copy of Bob's Discount Furniture web page
regarding "Bob's Goof Proof,"
http://www.mybobs.com/goof-proof-plus, printed on
December 12, 2016
80 7/1/2016 Report of Peter D. Wrobel
81 10/14/2016 Supplemental Report of Peter D. Wrobel
82 2/10/2015 Email correspondence from Chris Schall to Chris
Nolan, Frank Gibson, Debbie Gibson re Bob and
Stickley's commissions
83 2/6/2013 Email correspondence from Chris Nolan to Frank
Gibson, Debbie Gibson re Bullet Point 0 Ronnie
Holman
84 4/18/2012 Email correspondence from Christopher Schall to
Frank Gibson, Debbie Gibson re Implemenation
Deadline
85 8/1/2012 Memo from Guardian to Greg Webb re
Correspondence Received on August 1, 2012
"Transition to Chartis Warranties Update"
86 GIS_000587 Letters between Charles Gibson and Greg Webb re:
GIS_000593 distribution rights, dated August 9, 2010, August 27,
2010, December 7, 2010
87 4/13/2014 Memorandum from Todd Edwards to Distributors,
Johnny Green re Performance Review
88 GUARD Distributor Sales YOY
00006296
89 11/10/2013 Email correspondence from Johnny Green to Frank
Gibson re New contract
90 9/27/2013 Email correspondence from Charles Gibson to Johnny
Green, Todd Edwards re Quota Letter 2
91 8/30/2013 Letter from Charles Gibson to Johnny Green re Sales
Quota Action Plan
92 9/27/2013 Letter from Charles Gibson to Johnny Green re Sales
Quota: Alabama, Florida and Tennesse
93 2/7/2013 Memo from Johnny Green to Guardian Distributors,
Ronnie Holman, Tim Vaughan, Eric Mawyer, Diann
Ebersole, Damien Narayan re Inventories
94 6/7/2013 Email correspondence from Chris Nolan to Debbie
Gibson, Frank Gibson re Year End/June Distribution
Report
95 1/25/2016 Memo from Johnny Green to Guardian Distributors,
Ronnie Holman re June Report
96 10/29/2013 Email correspondence from Christopher Nolan to
Debbie Gibson, Frank Gibson re Correspondence
w/Johnny re quota letters
97 9/6/2013 Email correspondence from Christopher Nolan to
Debbie Gibson, Frank Gibson re DG distribution
agreement
98 11/7/2013 Email correspondence from Kara Copeland to Debbie
Gibson, Frank Gibson re Monday Quota Conference
Call Notes
99 7/3/2013 June, July and August Quota Report Conference Call
100 1/10/2011 Email correspondence from Ronnie Holman to
Christopher Schall re Follow-up of distributor
agreement
101 4/30/2015 Memo from Chris Taylor to Guardian Distributors re
Notice of Pricing Changes—Effective June 1, 2015
102 GUARD Guardian Protection Plan Pricing— Distributor Price
00001929 List, effective June 1, 2015
103 1/12/2016 Second Amended Notice of Depo of GPP
104 12/6/1988 Guardian Protection Productions, Inc. Warehousing
Distributor Agreement for Areas of Pennsylvania
105 12/6/1988 Guardian Protection Productions, Inc. Warehousing
Distributor Agreement for Pennsylvania, Maryland,
DC, areas of New York
106 4/2/1990 Guardian Protection Productions, Inc. Warehousing
Distributor Agreement for Ohio
107 8/30/1988 Guardian Protection Productions, Inc. Warehousing
Distributor Agreement for Cook County, Illinois
108 3/15/1991 Guardian Protection Productions, Inc. Warehousing
Distributor Agreement of Indiana
109 5/5/1998 Guardian Protection Productions, Inc. Warehousing
Distributor Agreement for Iowa, parts of Illinois,
parts of Missouri
110 11/4/1997 Guardian Protection Productions, Inc. Warehousing
Distributor Agreement for Alabama
111 4/11/1989 Guardian Protection Productions, Inc. Warehousing
Distributor Agreement for Broward and Dade
County, Florida
112 11/4/1997 Guardian Protection Productions, Inc. Warehousing
Distributor Agreement for Tennessee
113 9/17/2013 Memorandum, Johnny Green to Guardian
Distributors re August Results
114 N/A Step-by-step Web-based Warranty Registration
Procedures
115 6/11/2013 GIS Purchase Order to Guardian and Order
Confirmation
116 7/10/2013 GIS Purchase Order to Guardian and Order
Confirmation,
117 6/6/2013 GIS Purchase Order to Guardian and Order
Confirmation
118 10/21/2014 E-mail, Johnny Green to Chris Nolan with GIS-American
Freight — Shipped vs. Registered
attachment
119 GUARD Three-page Excel spreadsheets columns Distributor,
00002052 Territory, Terminated, Status, Strategy, Candidate,
120 3/13/2012 Memo from Greg Webb to Guardian Distributors,
Ronnie Holman, Tim Vaughan, Eric Mawyer,
Damien Narayan, Greg Hadfield, Diann Ebersole re
Distributor Meeting to Introduce National
Underwritten Warranty Program
121 GUARD Timeline created by Johnny Green
00008875-8877
122 12/5/2013 E-mail string Guardian North Central to Johnny
Green, Subject Advertising for sales rep in North and
South Dakota
123 12/8/2014 E-mail correspondence from Ronnie Holman to
Johnny Green re GIS with redaction
124 12/7/2012 Email correspondence from Ronnie Holman to Greg
Webb, Johnny Green, Wesley Harris re Tellor visit
125 12/10/2012 Email corresondence from Johnny Green to Ronnie
Holman re Tellor Meeting
126 120/10/12 Email correspondence from Johnny Green to Ronnie
Holman re GPP Business Review (attached)
127 12/11/2012 Email from J. Green to R. Holman with attachment
128 GUARD Document titled R. Holman Analysis
00001040.xls
129 10/2/2012 Email correspondence from Ronnie Holman to Greg
Webb, Wesley Harris re Guardian Innovative
Solutions P&L (attached)
130 2/11/2013 Email correspondence from Johnny Green to Ronnie
Holman re President's letter
131 1/31/2011 Email correspondence from Ronnie Holman to
Christopher Schall, Greg Webb re pads and ereg
132 4/26/2011 Notice of Subpoena to RPM Wood Finishes Group,
Inc.
133 5/17/2016 Notice of Deposition of Guardian Protection
Products, Inc.
134 5/28/2014 Email correspondence from Darin Lease to Johnny
Green re GIS Bob's Commissions
135 11/30/2014 Email correspondence from Chris Taylor to Johnny
Green, Darin Lease re GIS Shipment Details
136 11/30/2014 Email correspondence from Chris Taylor to Darin
Lease, Johnny Green re GIS Shipment Details
137 4/7/2015 Email correspondence from Chris Taylor to Darin
Lease, Louis Romenstant, Johnny Green re GIS
Accounts
138 1/27/2015 Email correspondence from Chris Taylor to Johnny
Green re Response to GIS
139 1/29/2015 Email string between Chris Taylor to Chris Nolan,
Johnny Green, Todd Edwards re Fw: Web Portal
Request
140 GUARD Excel spreadsheet titled Distribution
00009208
141 GUARD Excel spreadsheet titled Working
00009236
142 GUARD RPM Wood Response to GIS Interrogatories Set One
00009218
143 10/4/2016 GPP's Suppl Response to GIS Interrogs Set Two
144 9/12/2016 Amended Notice of D epo of GPP
145 9/12/2016 Amended Notice of Depo of RPM Wood
146 N/A Web page from RPM Wood
147 N/A Spreadsheet Guardian 62-089
148 9/22/2016 Document entitled RPM Entity; Guardian Protection
Production East Div
149 9/22/2016 Document Titled RPM Entity, RPM Wood Finishes
Group, Inc.
150 3/6/2015 Email string between Chris Taylor, Louis Romestant
re: Renaissance Partners—Guardian Program Outline
151 2/27/2015 Email string between Chris Taylor, Frank Amendola,
Darin Lease re: Renaissance and Pet Damage
Underwriting
152 10/2/2014 Email string between Chris Taylor, Rick Wright re:
Guardian Program Outline for Renaissance (attached)
153 7/27/2015 Email Rick Wright to Chris Taylor
154 7/1/2016 Defendant's Expert Witness Disclosure
155 8/1/2016 Pl's Amended Notice of Deposition of Expert
Schulze
156 N/A Index to Documents in SHL Binders
157 7/13/2016 Invoice #14555 from SHL to Gordon Rees
158 8/1/2016 Supplemental and Rebuttal Report of Karl J. Schulze
159 10/5/2016 Report of K. Schulze re claims related to Renaisance
160 N/A Schulze Testimony Publishing and Speaking History
161 8/5/2013 Guardian Protection Products, Inc. Invoice #2805688
sold to GPP Northeast
162 7/1/2016 Plaintiff's Expert Witness Disclosure
163 5/25/2016 Excerpts from the Deposition of Christopher Taylor
164 4/21/2016 Excerpts from the Deposition of Johnny Green
165 N/A Guardian Protection Products FY2016
Marketing/Sales
166 N/A Bob's Sales Spreadsheet
167 Depo Ex. 126 SHL Binder1 provided by Karl Schulze
168 1/16/1995 Letter from Greg Freeman to Charles Gibson re
distributor relationship between GPP Northeast and
Guardian Protection Products, Inc.
169 GUARD Guardian Residential Furniture Terms and Conditions
000030-33
170 12/18/2014 Letter from Christopher Taylor to Christopher Nolan
re: Sales and Operations Agreement for American
Freight
171 3/3/2009 Distributor Policy Letter for the Sale of Crypton
Branded Products
172 GUARD Fiscal Year 2014 Results spreadsheet
000299-299
173 GUARD R. Holman Analysis, Guardian West spreadsheet
000313-313
174 1/11/2000 Letter from Donald Smith to Jack Castella re: interest
in the state of Kentucky
175 12/9/2015 Redline version of a memo from Johnny Green to
Frank Gibson, Ronnie Holman, Ken Nota, Chris
Taylor re: December 17 Meeting
176 GUARD Redline Distributorship Agreement between GPP and
000628-639 GIS
177 GUARD Guardian Product Catalog
001687-1692
178 GUARD Guardian Underwritten Warranty Programs— Moving
001698-1708 to the Next Generation of Secure and Compliant
Programs
179 1/8/2015 Email string between Frank Gibson to Johnny Green
re: deliveries and shipping issues
180 6/12/2013 Email string between Debbie Gibson, Johnny Green,
Chris Nolan re: Kentucky Agreement
181 1/15/2014 Email from Frank Gibson to Johnny Green re: Tolling
Agreement
182 1/15/2014 Email from Frank Gibson to Johnny Green re:
meeting
183 1/7/2015 Email from Frank Gibson to Johnny Green,
Christopher Nolan re: deliveries and shipping issues
184 5/14/2015 Email from Frank Gibson to Johnny Green re:
purchase order
185 4/1/2016 Email string between Chris Taylor, David Bregler,
Ted Gular re: Guardian/Renaissance/ABV Protection
Plan Orders
186 10/1/2014 Letter from Christopher Taylor to Ted Gular and
David Breglar re: Guardian Protection Plan
Development
187 GUARD Warranty Services Processes, Terms and Conditions
00010583-10583
188 GUARD "What Happens When A Consumer Purchases A
00010903-10903 Guardian Program?"
189 7/23/2014 Email string between Chris Taylor, Johnny Green,
Damien Narayan re: Projects (Rep.Account
Spreadsheet attached)
190 1/27/2015 Email string between Damien Narayan, Chris Taylor,
Kim LeFevers re: New Customer Setup— Tennessee
191 11/5/2014 Email string between Johnny Green, Chris Taylor re:
New Pattern
192 11/30/2014 Email from Chris Taylor to Johnny Green, Darin
Lease re: GIS Shipment Details (GIS Shipment
Details spreadsheet attached)
193 7/25/2014 Email string between Chris Taylor, Johnny Green re:
Guardian Territory (Territory Strategy spreadsheet
attached)
194 1/20/2011 Email string between Ronnie Holman, Greg Webb re:
mattress pads
195 3/26/2012 Email string between Greg Webb, Ronnie Holman,
Christopher Schall, Tim Vaughan, Eric Mawyer,
Greg Hadfield, Chris Nolan re: April Distributor
Meeting
196 7/11/2014 Memo from Todd Edwards to Distributors, Johnny
Green re: Performance Summary
197 8/27/2014 Memo from Todd Edwards to Distributors, Johnny
Green re: Performance Review July
198 2/5/2013 Email string between Johnny Green, Ronnie Holman,
Greg Webb re: GIS—Bob's
199 11/30/2014 Email string between Chris Taylor, Darin Lease,
Johnny Green re: GIS Shipment Details
200 11/30/2014 Email string between Johnny Green, Chris Taylor,
Darin Lease re: GIS Shipment Details
201 11/11/2013 Email string between Todd Edwards, Johnny Green
re: Mattress Pad and Pillow Protector forecast
202 1/29/2013 Email string between Sara Ramseur, Johnny Green re:
Distributor commissions (spreadsheets attached)
203 10/1/2013 Email string between Bob Ellerby, Johnny Green,
Karen Ellerby, Todd Edwards re: September
Numbers
204 1/29/2013 Email string between Eric Foucrier, Johnny Green re:
Update from Las Vegas
205 2/8/2013 Email string between Ronnie Holman, Johnny Green,
Greg Webb re: GIS—Bob's
206 12/5/2013 Email string between Johnny Green, Todd Edwards
re: Advertising for sales rep in North and South
Dakota
207 12/11/2013 Memo from Todd Edwards to Guardian Distributors,
Johnny Green re: November Review
208 11/4/2013 Email string between Damien Narayan, Johnny
Green, Tim Vaughan re: Some Quick Thoughts
209 9/17/2013 Memo from Todd Edwards to Guardian Distributors,
Johnny Green re: Introduction
210 8/12/2013 Memo from Johnny Green to Guardian Distributors,
Ronnie Holman re: July Results
211 10/8/2013 Memo from Todd Edwards to Guardian Distributors,
Johnny Green re: September
212 10/24/2013 Email from Guardian North Central to Johnny Green,
Eric Mawyer, Todd Edwards re: Guardian Bedding
Accessory Program
213 2/25/2014 Email string between Guardian North Central and
Johnny Green re: Contract
214 5/28/2015 Email string between Frank Gibson and Johnny
Green re: follow-up
215 1/6/2014 Email from Johnny Green to Frank Gibson, Todd
Edwards, Ronnie Holman, Ken Nota re: contract
216 3/13/2014 Memorandum from Todd Edwards to Distributors,
Johnny Green re February 2014 Performance Review
217 10/9/2013 Memo from Todd Edwards to Guardian Distributors,
Johnny Green re: September
218 1/10/2014 Memo from Todd Edwards to Distributors, Johnny
Green re: Performance December 2013
219 7/11/2013 Memo from Johnny Green to Guardian Distributors,
Ronnie Holman re: June Report
220 GUARD Handwritten Notes
00000632-632
221 5/23/2011 Furniture Today newspaper front page
222 4/14/2014 Email string between Christopher Nolan, Frank
Gibson, Debbie Gibson, Chuck Gibson re: March
Distributor Update (attached)
223 11/12/2013 Email string between Christopher Nolan, Debbie
Gibson, Frank Gibson, Chuck Gibson re: October
Performance Update (attached)
224 5/14/2012 Email between Christopher Schall, Ronnie Holman,
Greg Web, Joann Seaman, Debbie Gibson, Frank
Gibson, Chris Nolan, Vincent Scaglione re: Ongoing
Sales Opportunities
225 4/18/2012 Email from Christopher Schall to Ronnie Holman,
Greg Web, Tim Vaughan, Eric Mawyer, Debbie
Gibson, Frank Gibson, Chris Nolan re: Reply to
Chicago Meeting (Proposal attached)
226 12/11/2013 Memo from Todd Edwards to Distributors, Johnny
Green re: November Review
227 11/12/2013 Memo from Todd Edwards to Distributors, Johnny
Green re: October
228 9/7/2011 Email string between Christopher Schall, Tom Toma,
Chris Nolan re: dreamGuard Pricing
229 1/2/2013 Email string between Debbie Gibson, Chris Nolan re:
dreamGuard Pricing—Tom Toma Guardian Authority
230 6/28/2013 Email string between Chris Nolan, Debbie Gibson,
Frank Gibson re: Levins
231 3/15/2012 Email string between Christopher Schall, Frank
Gibson, Chuck Gibson, Chris Nolan re: Mandatory
Distributor Meeting (Meeting Letter attached)
232 10/10/2013 Email string between Christopher Nolan, Debbie
Gibson, Frank Gibson, Chuck Gibson re: September
Update (Sales Summary, Performance attached)
233 8/10/2012 Email from Chris Nolan to Greg Webb, Debbie
Gibson, Frank Gibson, Christopher Schall re: Letter
from G IS (attached)
234 10/25/2013 Email string between Debbie Gibson, Christopher
Nolan, Frank Gibson re: Distributor Conference Call
235 5/1/2007 Bill of Sale between Guardian Midwest and GPP, Inc.
236 8/1/2012 Memo from Greg Webb to Guardian Distributors re:
Transition to Chartis Warranties Update
237 8/27/2014 Email string between Christopher Nolan, Debbie
Gibson, Frank Gibson, Chuck Gibson re: July
Performance Update (attached)
238 10/29/2013 Email string between Kara Copeland, Debbie Gibson,
Frank Gibson re: product Branding Update
(Certification attached)
239 11/5/2013 Email string between Guardian North Central and
Chris Nolan re: Guardian Bedding Accessory
Program
240 2/25/2007 Email from Chris Schall to Chris Nolan re: Jack
Castella letter
241 5/10/2005 Email string between Linda Lemar, Chuck Gibson,
Ronnie Holman re: Guardian Neast Name Change
Consent (attached)
242 10/19/2012 Email from Diann Ebersole to various distributors,
Ronnie Holman, Greg Webb, Johnny Green, Eric
Mawyer, Tim Baughan, Greg Hadfield, Damien
Narayan re: Announcement: Johnny Green intro
(attached)
243 5/11/2010 GWDA Conference Call Agenda
244 Aug-14 Guardian Protection Products, Inc. Corporate
Branding Guidelines
245 6/25/2012 Email string between Eric Mawyer, Christopher
Schall re: Licensed to Sell Warranties in California
and Florida
246 7/5/2012 Email string between Christopher Schall, Diann
Ebersole, Chis Nolan, Greg Webb, Geoff Poole,
Frank Gibson, Debbie Gibson re: More Chartis
Conversions from GIS
247 5/2/2012 Email string between Tim Vaughan to Chis Nolan,
Chris Schall, Eric Mawyer, Frank Gibson, Greg
Webb, Tim Vaughan re: The RoomPLace
248 GIS_001 079-1103 Compilation of emails
249 4/18/2012 Email string between Ronnie Holman, Christopher
Schall, Greg Webb re: Implementation Deadline
250 1/21/2014 Memo from Todd Edwards to Guardian Products
Distributors, Johnny Green, Eric Mawyer, Tim
Vaughan re: Guardian Rebranding Initiative
251 9/15/2014 Email from Christopher Nolan to Debbie Gibson,
Frank Gibson Re: Fwd: Mattress Protection Program
email
252 11/5/2013 Email from Christopher Nolan to Debbie Gibson,
Frank Gibson Re: Fwd: Guardian Bedding Accessory
Program
253 2/7/2013 Email from Christopher Nolan to Debbie Gibson,
Frank Gibson Re: Fwd: Memo from Guardian
254 5/4/2012 Email from Greg Webb to Chris Nolan, Crish Schall,
Debbie Gibson, Frank Gibson, Ronnie Holman re:
Meeting with GIS
255 1/15/2014 Email from Johnny Green to Frank Gibson re: Tolling
Agreement
256 6/7/2012 Email from Christopher Schall to Greg Webb, Chris
Nolan, Darin Lease, Damien Narayan re: Update on
Chart Progress
257 3/27/2012 Emails between Christopher Schall, Chris Nolan and
Frank Gibson re: April Distributor Meeting
258 Backup Documents for G IS Purchase Reports (2010 —
2015)
259 Samples of Various Products Distributed by G IS and
Guardian, Including Physical Products, Product
Labels, and Warranty Documents (Terms and
Conditions, Transmission Documents, Cover Sheets,
etc.)
260 GIS 001743 — Various Purchase Orders, Order Confirmations, and
002137; 002245 — Invoices
003322
2. Defendants' Exhibit List
Description
1 Second Amended Notice of Depo of GPP, Inc. w/list of examination topics dated
01/12/16
2 Warehousing Distributor Agreement for Pennsylvania
3 Warehousing Distributor Agreement for Pennsylvania, Maryland, D.C. and New
York
4 Warehousing Distributor Agreement for Ohio
5 Warehousing Distributor Agreement for Illinois
6 Preliminary Guardian Warehousing Distributor Agreement for Indiana
7 Warehousing Distributor Agreement for Iowa
8 Warehousing Distributor Agreement for Alabama
9 Warehousing Distributor Agreement for Florida
10 Warehousing Distributor Agreement for Tennessee
11 Letter dated 08/12/13 to Guardian Distributors, Ronnie Holman and GPP
Directors from Johnny Green re July results (GUARD 001009-1011)
12 Letter dated 09/17/13 to Guardian Distributors, Ronnie Holman and GPP
Directors from Johnny Green re August results (GUARD 001009-1011)
13 Letter dated 08/19/13 to Chuck Gibson from Johnny Green re Sales Quotas for
Tennessee
(GUARD 000869)
14 Letter dated 08/19/13 to Chuck Gibson from Johnny Green re Sales Quotas for
Alabama
(GUARD 000865)
15 Letter dated 08/19/13 to Chuck Gibson from Johnny Green re Sales Quotas for
Florida (GUARD 000863)
16 Letter dated 08/30/13 to Johnny Green from Charles Gibson re Sales Quota Action
Plan
(GUARD 000561-563)
17 Email dated 10/24/13 from Kara Copeland to Frank Gipsonre Distributor
Agreement Termination Notices w/attached notices
18 Distributorship Agreement between Guardian Protection Products, Inc. and G.P.P.,
Inc. (unsigned)
19 Email chain dated 01/13/11 from Chris Schall to Ronnie Holman, cc: Debbie and
Frank Gibson, Greg Webb, R. Holman re Bob's Discount 5%
20 Email dated 08/20/14 to Debbie and Frank Gibson from Chris Nolan re Bob's idea
(2 pages)
21 Letter dated 11/12/14 to Chuck Gibson from Johnny Green re Termination of
Commissions for Bob's Discount Furniture
22 Memorandum dated 12/09/15 to Frank Gibson from Johnny Green Re: December
17th Meeting
23 Step-by-step Web-based Warranty Registration Procedures (GUARD 000017-23)
24 Email chain dated 09/15/14 from Christopher Nolan to Debbie and Frank Gibson
re dreamGUARD products
25 Email dated 08/14/13 from Johnny Green to Ronnie Holman re dreamGUARD
program
(GUARD 001459)
26 Authorized Extended Service Program Agreement 06/01/12 between Chartis
Warranty Guard, Inc. and Guardian Protection Products, Inc., Bates
(GUARD 00008798—8833)
27 Email string, dated 06/17/13 from Kevin Warrix to Johnny Green and Darin Lease
(GUARD 00008892—8895)
28 Email dated 07/01/13 from Darin Lease to Kevin Warrix, Frank Amendola and
others re A IG Guardian Pre-Sell Proposal Working Copy
(GUARD 00008758)
29 Document titled AIG Guardian Program Pre-Sell Proposal (GUARD 00008759-8763)
30 Email dated 12/10/14 from Chris Taylor to Johnny Green re Market Potential —
GIS States w/attached spreadsheet (GUARD 00001845-1846.xlsx)
31 Document re GPP-GIS Meeting dated 02/09/15 re contract discussion (GUARD
00000827-863)
32 Confidential email dated Nov. 2014 from Johnny Green to Chris Taylor re GIS
shipment details
(GUARD 00003979)
33 Email from Darin Lease to Johnny Green dated 08/12/13 re Distributor Sales vs
Quotas Methodology & Assumptions w/attached Warehousing Distributor
Agreement for Florida (GUARD 00005527)
34 Purchase Order # EXT061113AF dated 06/11/13
(GIS 001819 and 001818)
35 Purchase Order # EXT071013C dated 07/10/13
(GIS 001821-1822)
36 Purchase Order # EXT6713AF dated 06/06/13
(GIS 001899-1900); Memo dated 08/12/13 to Guardian Distributors from Johnny
Green re July results (GUARD 001009-1011)
39 E-mail dated 10/21/14 from Johnny Green to Chris Nolan w/attached document re
GIS-American Freight — Shipped vs. Registered (GUARD 00000894-895)
40 Email string dated 06/07/13 from Webb to Green, w/attached Distributor Purchase
Requirement Summary (GUARD 00008554 — 8555)
41 E-mail dated 01/17/15 Green to Taylor w/attached Guardian Protection Products
FY2015 Marketing/Sales (GUARD 00002485-2490)
42 Guardian Protection Products FY2015 Competitive Review document (GUARD
00002491-2496)
43 3-page Excel spreadsheet regarding Distributor territory, Terminated, Status,
Strategy, Candidate (GUARD 00002052)
44 Email string dated 02/04/13 from Greg Webb to Johnny Green and Ronnie
Holman re mattress pads (GUARD 00001666 — 16667)
45 Email dated 11/05/14 from Johnny Green to Eugene Alletto re New Pattern
(GUARD 00006229)
46 Memo dated 03/13/12 to All Guardian Distributors, Ronnie Holman, Tim
Vaughan, Eric Mawyer, Damien Narayan, Greg Hadfield, Dianne Ebersole from
Greg Webb re Distributor Meeting to Introduce National Underwritten Warranty
Program
(GUARD 000444-445; GUARD 000561-563)
47 Guardian Business Review &Analysis, a
30-Day Perspective (GUARD 00008834 — 8873)
48 Timeline titled "Guardian Pre-Johnny Green"
(GUARD 00008875-8877)
49 Email dated 12/05/13 from Guardian North Central to Johnny Green, Todd
Edwards re Advertising for Sales Rep in North and South Dakota
(GUARD 0006150-6155)
50 Redacted email dated 12/08/14 from Ronnie Holman to Johnny Green re GIS
Distribution and Quotas (GUARD 00008467)
51 Letter dated 04/21/16 to Chuck Gibson from Johnny Green; and email dated
04/29/16 from Johnny Green to Frank Gibson re request for GIS' shipping records
52 Email dated 12/07/12 from Ronnie Holman to Greg Webb, Johnny Green and
Wesley Harris re Tellor visit (GUARD 00009101)
53 Email dated 12/10/12 from Johnny Green to Ronnie Holman re meeting with Greg
(GUARD 00009143)
54 Email dated 12/10/12 from Johnny Green to Ronnie Holman w/attached
presentation titled "Guardian Business Review & Analysis"
(GUARD 00009102—9142)
55 Email dated 12/11/12 from Johnny Green to Ronnie Holman Ronnie Holman
w/attached presentation titled "Guardian Business Review & Analysis" (GUARD
00009144—9184)
56 5-page document titled "R Holman Analysis" and "Guardian West" (GUARD
00001040.xls)
57 Email dated 10/02/12 from Ronnie Holman re: Guardian Innovative Solutions
P&L w/attached 4-page spreadsheet
58 Email dated 02/11/13 from Johnny Green to Ronnie Holman re: President's letter
(GUARD 00004035)
59 Email dated 01/31/11 from Ronnie Holman to Chris Schall regarding pads and
competitors ereg system (GUARD 00006742)
60 Notice of Subpoena to RPM Wood Finishes Group, Inc.
61 NOT USED
62 Email chain from Darin Lease to Johnny Green re GIS update by state (GUARD
0008514-8515)
63 Spreadsheet re Distribution Sales by Territory FY14 (GUARD 00008522.xlsx)
64 Email chain dated 08/20/14 from Chris Nolan to Debbie and Frank Gibson re
backup sales data for FL, TN and AL w/attached spreadsheet
65 Email chain dated 07/12/13 from Kevin Warrix to Darin Lease and Frank
Amendola, cc: Johnny Green re AIG Guardian Pre-Sell Proposal Working Copy
(GUARD 00008890-8891)
66 Email dated 05/28/14 from Darin Lease to Johnny Green re GIS Bob's
Commissions
(GUARD 00007774)
70 Advertisement re Renaissance Protection Program
71 Email dated 11/30/14 from Chris Taylor to Johnny Green, cc: Darin Lease re GIS
Shipment details
(GUARD 00001975)
72 Email chain dated 11/30/14 from Chris Taylor to Darin Lease, cc: Johnny Green re
GIS Shipment details and incomplete data
(GUARD 00003463-3464)
73 Email dated 04/07/15 from Chris Taylor to Darin Lease, Louis Romestant, cc:
Johnny Green re GIS accounts (GIS 00008362)
74 GIS Sales Performance and Market Share Analysis dated 02/09/15 (GUARD
00001796-1808)
78 Letter dated 04/19/2007 to Greg Webb from GPP Northeast re intent to transfer
rights to Frank Gibson
79 Assignment of Contract dated 03/17/2010 by Greg Webb
80 Memo dated 03/26/12 from Christopher Schall to rholman@rpmwfg.com, Greg
Webb, Tim Vaughan, Greg Hadfield, cc: Chris Nolan, Frank Gibson re April
Distributor Meeting (G IS 000022-023)
81 Email dated 08/30/13 from Charles Gibson to Johnny Green, cc: Chris Nolan
forwarding attached Sales Quota Action Plan (GUARD 00000327; 503-505 and
GUARD 00001262; 1438-1440)
82 Email dated 08/22/13 from Kara Copeland to Johnny Green, cc: Debbie and Frank
Gibson re Quota Notices (GUARD 00000510-511; 328, 502, 514 and GUARD
00001445-1446; 1263, 1437, 1449)
83 Email dated 09/27/13 to Johnny Green from Charles Gibson, cc: Todd Edwards re
Quota Letter 2 w/attached letter (GUARD 00000994-998)
84 Letter from Frank Gibson to R. Holman, J. Green re GIS Terminations (GUARD
00000333; 1268)
85 Email dated 12/02/13 from Frank Gibson to Johnny Green, cc: Debbie Gibson,
Chris Nolan re response to terminations (GUARD 00007482-7484)
86 Email chain dated 01/26/11 from Christopher Schall to Vincent Scaglione, cc:
Debbie Gibson re mattress pads (GIS_001119-1120)
87 Email chain dated 02/05/13 from Chris Nolan to Frank and Debbie Gibson re
Guardian response
(GIS_000432)
88 Email dated 10/08/13 from Johnny Green to Kara Copeland, cc: Chris Nolan re
Bobs
(GUARD 00006925-6926)
89 Email dated 02/05/13 from Chris Nolan to Frank and Debbie Gibson re bullet
point — Ronnie Holman
(GIS 000407-408)
90 Letter dated 03/21/12 from GIS to Damien Narayan re SC Warranty Replacement/Exchange
96 Spreadsheet re Distribution Sales by Territory FY14
(GUARD 00009208.xlsx)
97 Spreadsheet re Distribution
(GUARD 00009236.xlsx)
98 Spreadsheet re Working
(GUARD 00009218.xlsx)
99 Defendant RPM Wood Finishes Group, Inc.'s Response to Plaintiff G.P.P., Inc.'s
Interrogatories, Set One, Numbers 8, 16, 17 & 18
101 Amended Notice of Deposition of Guardian Protection Products, Inc.
102 Amended Notice of Deposition of RPM Wood Finishes Group, Inc.
103 Information re RPM Wood Finishes Group
104 Spreadsheet re Guardian; marked "Highly Confidential — Attorney Eyes Only"
(Guardian062-089)
105 Spreadsheet re RPM — Entity: Guardian Protection Prod Inc — East Div
(US222.US22211); marked "Highly Confidential — Attorneys' Eyes Only
(Guardian060-061)
106 Spreadsheet re RPM — Entity: RPM Wood Finishes Group, Inc. (USA.US307);
marked "Highly Confidential — Attorneys' Eyes Only
(Guardian058-059)
107 E-mail chain, top e-mail 03/06/2015, Christ Taylor to Louis Romestant (GUARD
00010309-313)
108 Renaissance Partners Operational Narrative September 18, 2015 (GUARD
00010919)
109 E-mail chain, top e-mail 02/27/2015, Chris Taylor to Frank Amendola and Darin
Lease
(GUARD 00010314-316)
110 E-mail chain, top e-mail 10/02/2014, Chris Taylor to rick@thewrightreps.com,
with 10/1/2014 Letter attachment Christopher Taylor to Ted Gular and David
Breglar (GUARD 00009455-458)
111 E-mail dated 09/29/2014 Chris Taylor to Johnny Green with attachment
Renaissance Program Outline 2014 letter dated 09/29/2014
(GUARD 00009474-476)
112 E-mail dated 07/27/2015 from Rick Wright to Christ Taylor (GUARD 00010614)
113 Defendant's Expert Witness Disclosure
114 Plaintiff's Amended Notice of Deposition of Defendants' Expert Karl J. Schulze
115 G.P.P., Inc. d/b/a Guardian Innovative Solutions v. Guardian Protection Products,
Inc. Index to Documents in SHL Binders
116 Invoice #14555 dated 07/13/16 submitted to Calvin E. Davis from Schulze Hayne
Loevenguth & Co.
(7-pages)
117 Supplemental and Rebuttal Report of Karl J. Schulze
118 Report of Karl J. Schulze, CPA, CVA, CFE, CFF (Regarding Claims Related to
Renaissance)
119 Karl J. Schulze, CPA, CVA, CFE, CFF document re Testimony, Publishing and
Speaking History
120 Invoice 2805688; marked "CONFIDENTIAL" (GIS_001950)
121 Plaintiff's Expert Witness Disclosure
122 Transcript of the Videotaped Deposition of Christopher Patrick Taylor, taken May
25, 2016
123 Transcript of the Videotaped Deposition of Johnny Wayne Green, Junior, taken
April 21, 2016
124 Guardian Protection Products FY2016 Marketing/Sales; marked
"CONFIDENTIAL" (GUARD 00002643-2647)
125 Document titled "Bob's Sales" marked "CONFIDENTIAL SUBJECT TO
PROTECTIVE ORDER" (GUARD 00009205-9206)
126 SHL Binder 1 provided by Karl J. Schulze
Q. DISCOVERY DOCUMENTS
GIS states that it included all discovery documents it intends to use in its case-in-chief in GIS's Exhibit List. Defendants state that they anticipate offering GIS's answers to Special Interrogatories 1 through 17.The parties intend to rely on deposition testimony of all listed witnesses if those witnesses are offered for live testimony. The parties have requested to reserve the right to offer the entirety of the deposition testimony of individuals who were deposed in this litigation in the event that the other party does not call them for live testimony.
By no later than Wednesday, March 15, 2017, the parties shall file and serve a final list of discovery documents that they intend to use at trial. Only those discovery documents listed in this Pretrial Order may appear on the final discovery document list. Further, no discovery document, other than those listed in the final exhibit list, may be admitted at trial for any purpose including for rebuttal unless the parties stipulate or upon a showing that this order should be modified to prevent "manifest injustice." Fed. R. Civ. P. 16(e).
Discovery documents (or relevant portions thereof) may be either separately marked and indexed as a trial exhibit (as part of the exhibit marking process described above) or, if admissible, read directly into evidence. By no later than Thursday, March 16, 2017, the parties shall submit to the Court, through the Clerk's Office, all pre-marked discovery documents.
R. DUTIES OF COUNSEL REGARDING EVIDENCE
1. General Evidentiary Matters
During the course of trial, the parties' counsel shall meet with the Court each morning and advise the Court as to which items of evidence will be used that day and which have not already been admitted into evidence. The Court will rule on any objections, to the extent possible, prior to the commencement of trial each day out of the presence of the jury. If such ruling depends on the receipt of testimony or other evidence, the Court will rule as appropriate upon receipt of such testimony or evidence. If evidentiary problems are anticipated, the parties' counsel are required to notify the Court immediately that a hearing outside the jury's presence will be required. During the time set for conducting the trial before the jury, the Court will not hear argument outside the jury's presence on such matters.
2. Witnesses
During the trial, the parties' counsel shall provide to the Court and the other counsel, no less than one court day before a witness is called, with the name of the witness to be called. If evidentiary problems are anticipated, the parties' counsel are required to notify the Court immediately that a hearing will be required.
3. Duty of Parties' Counsel
The Court respects the jury's time and expects issues that must be presented outside the jury's presence to be raised such that the jury's service is not unnecessarily protracted. To the extent possible, the parties shall raise issues that must be presented to the Court outside of the jury's presence (1) in the morning before the jury sits, (2) during breaks, (3) in the afternoon after the jury is excused, or (4) during any other appropriate time that does not inconvenience the jury. For example, if evidentiary problems can be anticipated, the parties should raise the issue with the Court before the jury sits so that there is no delay associated with specially excusing the jury. Issues raised for the first time while the jury is sitting when the issue could have been raised earlier will be looked upon with disfavor and counsel may be sanctioned for any fees, costs or other expenses caused by their failure to raise the issue at a more convenient time.
4. Post-Trial Exhibit Retention
The party's counsel who introduces evidence at trial shall retrieve the original exhibits from the Courtroom Deputy following the verdict in the case. The parties' counsel shall retain possession of and keep safe all exhibits until final judgment and all appeals are exhausted.
S. MOTIONS IN LIMINE
The Court ORDERS the parties' counsel to meet and confer on anticipated motions in limine and to distill evidentiary issues. The Court further ORDERS the parties to file motions in limine as to only important matters in that most evidentiary issues can be resolved easily with a conference among the Court and counsel. If, after conferring, any party chooses to file motions in limine, the party shall file and serve its motions in limine by no later than Thursday, March 2, 2017. Oppositions to motions in limine shall be filed and served by no later than Wednesday, March 8, 2017. The Court will conduct a hearing regarding pending motions in limine on Monday, March 13, 2017, at 3:00 p.m. in Courtroom 7. Telephonic appearances are approved for the hearing regarding motions in limine; counsel appearing telephonically shall confer to place one conference call to the Court at the time and date for the hearing.
T. TRIAL PREPARATION AND SUBMISSIONS
1. Trial Briefs
By no later than Wednesday, March 15, 2017, the parties may file and serve optional trial briefs pursuant to Local Rule 285.
2. Neutral Statement of the Case
By no later than Friday, March 3, 2017, the parties shall serve a proposed neutral statement of the case on the opposing party. By no later than Friday, March 10, 2017, the parties shall meet and confer regarding a joint neutral statement of the case. The parties shall jointly file a neutral and brief statement of the case, which is suitable for reading to the jury, by no later than Thursday, March 16, 2017.
3. Proposed Voir Dire
The parties shall file and serve any proposed jury voir dire by no later than Wednesday, March 15, 2017.
4. Proposed Jury Instructions
The parties shall serve their proposed jury instructions on one another by no later than Friday, March 3, 2017. The parties shall conduct a conference to address their proposed jury instructions by no later than Friday, March 10, 2017. At the conference, the parties SHALL reach an agreement on the jury instructions for use at trial. The parties shall file and serve all agreed-upon jury instructions, and identify them as such, by no later than Thursday, March 16, 2017.
For those jury instructions on which the parties cannot agree, by no later than Thursday, March 16, 2017, the parties may file and serve no more than ten total proposed jury instructions and identify them as instructions upon which the parties could not agree. Without prior order, the Court will not consider additional proposed jury instructions past the first ten.
All jury instructions shall indicate the party submitting the instruction (i.e., joint/agreed-on, GIS's, Guardian's, or Defendants'), the number of proposed instruction in sequence, a brief title for the instruction describing the subject matter, the text of the instruction, and the legal authority supporting the instruction.
Ninth Circuit Model Jury Instructions SHALL be used where the subject of the instruction is covered by a model instruction. Similarly, CACI or BAJI instructions SHALL be used where the subject of the instruction is covered by CACI or BAJI. All instructions shall be short, concise, understandable, neutral, and accurate statements of the law. Argumentative or formula instructions will not be given and must not be submitted. Quotations from legal authorities without reference to the issues at hand are unacceptable.
The parties shall, by italics or underlining, designate any modifications of instructions from statutory or case authority, or any pattern instruction, such as the Ninth Circuit Model Jury Instructions, CACI, BAJI, or any other source of pattern instructions, and must specifically state the modification made to the original form instruction and the legal authority supporting the modification.
By no later than Friday, March 17, 2017, the parties may file and serve any written objections to disputed jury instructions proposed by another party. All objections shall be in writing, set forth the proposed instruction, and shall include a citation to legal authority to explain the grounds for the objection and why the instruction is not proper. A concise argument concerning the instruction may be included. Where applicable, the objecting party shall submit an alternative proposed instruction covering the subject or issue of law.
5. Proposed Verdict Form
The parties shall serve their proposed verdict form on one another by no later than Friday, March 3, 2017. The parties shall conduct a conference to address their proposed verdict form by no later than Friday, March 10, 2017. At the conference, the parties SHALL reach agreement on the verdict form for use at trial. The parties shall file and serve the agreed-upon verdict form, and identify it as such, by no later than Thursday, March 16, 2017. If a party seeks additions to the agreed-upon verdict form, the party may file and serve, by no later than Friday, March 17, 2017, a proposed verdict form which includes the agreed-upon portions and additions which are clearly indicated on the party's proposed verdict form. The Court will strike and will not accept separately proposed verdict forms upon which the parties do not agree.
6. Other Matters
All proposed jury instructions and verdict forms shall be e-mailed as a Word document attachment to SKOorders@caed.uscourts.gov by no later than Thursday, March 16, 2017. Jury instructions and verdict forms will not be given or used unless they are e-mailed to the court. The Court will not accept a mere list of numbers of form instructions from the Ninth Circuit Model Jury Instructions, CACI, BAJI, or other instruction forms. The proposed jury instructions must be in the form and sequence which the parties desire to be given to the jury. All blanks to form instructions must be completed. Irrelevant or unnecessary portions of form instructions must be omitted.
U. COURTROOM ACCESS
To the extent either party has video or DVD evidence they wish to present, the only method of displaying such evidence will be through the use of the parties' laptop(s) which will be projected to the courtroom monitors. The parties' laptop(s) will have to serve as the device that plays these videos or DVDs—our courtroom equipment no longer provides any technology to play such evidence.
The parties should contact Courtroom Deputy Alice Timken at 559-499-5975 by no later than Monday, March 13, 2017, to coordinate access to the courtroom and training with IT on equipment.
V. SUMMARY OF PRETRIAL DEADLINES AND HEARINGS
Deadline Event
February 8, 2017 • Defendants may file their opposition to GIS's Motion to Reconsider,
(Doc. 147).
February 15, 2017 • Hearing on the parties' motions to reconsider, (Docs. 143 & 147),
unless the Court vacates the hearing.
February 16, 2017 • Settlement Conference before the Honorable Erica P. Grosjean at
1:00 p.m. in Courtroom 10.
March 2, 2017 • File motions in limine.
March 3, 2017 • Exchange proposed exhibits;
• Serve proposed neutral statement of the case on opposing party;
• Serve proposed jury instructions on opposing party; and
• Serve proposed verdict forms on opposing party.
March 8, 2017 • File oppositions to motions in limine.
March 10, 2017 • Exhibit conference;
• Meet and confer to draft joint neutral statement of the case;
• Meet and confer regarding jury instructions; and
• Meet and confer regarding verdict form.
March 13, 2017 • Contact Courtroom Deputy to coordinate access to courtroom and
IT equipment; and
• Hearing on motions in limine at 3:00 p.m. in Courtroom 7 (SKO).
March 15, 2017 • Serve and file final witness lists;
• Serve and file final exhibit lists;
• Serve and file final list of discovery documents;
• File optional trial brief; and
• File any proposed voir dire.
March 16, 2017 • Submit all pre-marked trial exhibits to the Clerk's Office;
• Submit all pre-marked discovery documents to the Clerk's Office;
• Submit all deposition transcripts reasonably anticipated for use for
any purpose at trial to the Clerk's Office;
• Serve opening statement materials (e.g., demonstrative exhibits) on
opposing parties and provide a copy to the Court;
• File and email agreed-upon jury instructions;
• File and email joint verdict form;
• File and email joint neutral statement of the case; and
• File up to 10 proposed jury instructions on which the parties could
not agree (no more than 10 total will be considered).
March 17, 2017 • File any objections to separately proposed jury instructions; and
• File any additions to the agreed-upon verdict form.
March 21, 2017, at • Trial begins.
8:30 a.m.
W. STRICT COMPLIANCE
Strict compliance with this Pretrial Order and its requirements is mandatory. The Court will strictly enforce the requirements of this Pretrial Order, especially those portions pertaining to jury instructions and a verdict form. Counsel and the parties are subject to sanctions for failure to Dfully comply with this order and its requirements. The Court will modify this order "only to prevent manifest injustice." Fed. R. Civ. P. 16(e).
IT IS SO ORDERED.
