EDWARD M. CHEN, District Judge.
A Final Pretrial Conference was held in this matter on September 20, 2011. Pursuant to Federal Rule of Civil Procedure 16(e), this order memorializes the Court's rulings and/or the parties' stipulations. Also attached are the Court's standing Guidelines for Trial.
The trial shall begin on October 3, 2011, Courtroom 5, 17th Floor. There shall be a total of twelve court days.
Trial shall be conducted from 8:30 a.m. to 2:00 p.m. (or slightly longer to finish a witness), with one 15-minute break and one 40-minute lunch break. Parties must arrive by 8:00 a.m. or earlier as needed for any matters to be heard out of the presence of the jury. The jury will be called at 8:30 a.m. The trial week is Monday through Thursday, excluding holidays. Fridays are dark. If there are matters that need to be discussed (e.g., objections to exhibits or witnesses), counsel should be prepared to meet with the Court at 8:00 a.m.
Plaintiff shall have 22 hours to present her evidence, and Defendant 22 hours. This includes direct examination by one side of its witnesses, cross-examination by that side of the opposing party's witnesses, and any rebuttal. This does not include jury selection, jury instructions, opening statements, or closing arguments. The Court may impose separate time limits for openings and closings.
Bayer's Motion in Limine requests that the Court exclude four categories of evidence.
Bayer seeks to prevent Onyx from introducing evidence as to the unexpressed intent and understanding of Onyx's negotiators to the Collaboration Agreement. Mot. in Limine, Docket No. 140 ("Mot."), at 1. These witnesses are Frank McCormick, Bob Jones, and Hollings Renton. Bayer contends that their testimony as to the meaning of the contract is inadmissible under Rule 402 and 403 because they merely testify as to their own subjective, which is irrelevant under California law. Mot. at 2. Bayer asks the Court to restrict the testimony of these witnesses to objective, expressed intent rather than subjective, understood intent. Onyx counters that these witnesses will testify not as to their subjective intent, but rather the parties' mutual intent and understanding of the contract terms. It argues that the witnesses are permitted to testify as to expressed and unexpressed representations during the course of negotiations. Opp. at 1.
Bayer overstates California law's restrictions on witness testimony as to a contract's meaning under the objective theory of contracts. Bayer seeks to exclude these witnesses' testimony based on their admissions at some point in their depositions that they did not recall "specific discussions" during the course of negotiations as to the meaning of certain specific words in the contract. See Mot. at 2-3 (citing portions of Renton depo.); id. at 4 (citing portions of McCormick depo.); id. (citing portions of Jones depo.). However, contrary to Bayer's implication, these admissions do not amount to any broad concession that these witnesses remember nothing from the negotiations that would inform their memory of and testimony as to the parties' expressed intent. A lack of specific recollection does not change the nature of the testimony, only its weight. None of the cases to which Bayer cites require witnesses to quote from negotiations or provide a detailed account of "specific discussions" in order to testify as to their memory of those negotiations. For example, Bayer cites to Founding Members of Newport Beach Country Club v. Newport Beach Country Club, Inc., 109 Cal.App.4th 944, 960, 135 Cal.Rptr.2d 505 (2003). However, Founding Members does not stand for the broad proposition that all testimony as to a negotiator's understanding of contract terms is inadmissible. Rather, Founding Members merely holds that conversations between members of the same side in a negotiation, conversations between those persons and a sales assistant, conversations with undisclosed third parties, and undisclosed statements of individual intent are not relevant under the "objective theory of contracts." Id. Other cases on which Bayer relies for support similarly do not discuss or require the specificity it requests that this Court impose. See Winet v. Price, 4 Cal.App.4th 1159, 1166, 6 Cal.Rptr.2d 554 (1992) (disregarding "testimony as to what [the witness] subjectively understood and intended the release to encompass"); Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga, 175 Cal.App.4th 1306, 1339, 96 Cal.Rptr.3d 813 (2009) (affirming exclusion of self-described subjective statement: "I on behalf of Sage Council and Habitat Trust contemplated that the contract purpose of the Settlement Release Agreement (Exhibit 41) was to ...," where the witness "does not indicate that she expressed her asserted intention to anyone before or at the time of contracting" and "her prior language, acts and conduct evidence a contrary intention").
Moreover, while Bayer is correct that courts have excluded evidence of the unexpressed intent of the parties, other courts applying California law have allowed witnesses to testify about their understanding of a contract when that understanding is not simply a private interpretation, but rather is founded in personal knowledge of the negotiations and the parties' expressed intent. See First Nat'l Mortg. Co. v. Fed. Realty Inv. Trust, 631 F.3d 1058, 1068 (9th Cir.2011) (witness testified as to "his understanding of the `subject only to approval' clause"); Mickey Bearman Co. v. John Morrell & Co., No. CV-00-05616 CAS (MCX), 2001 WL 36097432, at *3, 2001 U.S. Dist. LEXIS 26233, at *6-7 (C.D.Cal. Oct. 29, 2001) (attorney "who participated in the negotiations of the [contract], is entitled to testify as to what he, as a representative of [Defendant], thought the ambiguous terms meant."); ASP Properties Group v. Fard, Inc., 133 Cal.App.4th 1257, 1271, 35 Cal.Rptr.3d 343 (2005) ("When [Defendant's negotiator] was asked whether he understood at the time of negotiating the Amendment [that] Tenant would be required to improve the Premises, he answered, `Absolutely not.'"); Pacific Gas & Elec. Co. v. G.W. Thomas Drayage & Rigging Co., 69 Cal.2d 33, 39, 69 Cal.Rptr. 561, 442 P.2d 641 (1968) (offering, as example of circumstance warranting extrinsic evidence, situations in which "the parties' understanding of the words used may have differed from the judge's understanding" and requiring the court to consider evidence that would place it "in the same situation in which the parties found themselves at the time of contracting"); Wolf v. Superior Court, 114 Cal.App.4th 1343, 1359-60, 8 Cal.Rptr.3d 649 (2004) (finding triable issue of fact and lamenting the fact that "neither side presented any direct or objective evidence regarding the negotiating parties' understanding of the term `gross receipts' at the time the parties entered into the contract.").
The Court cannot discern any requirement that testimony must be supported by specific quotations of the words stated in negotiation. Rather, California case law merely stands for the proposition that a negotiator's testimony as to contract terms must be grounded in some foundation of personal knowledge as to the parties' expressed intent and understanding during the course of negotiations, rather than
Accordingly, Bayer's motion is DENIED as to this point, without prejudice to Bayer's objections at trial if certain portions of the witnesses' testimony are in fact based solely on their subjective, unexpressed intent.
Bayer seeks to preclude Onyx from introducing testimony with regard to Bayer's other allegedly improper conduct in the course of developing Nexavar in indications beyond CRC-KRAS and Breast AI, as Onyx has not claimed compensatory damages with respect to that conduct. See Mot. at 1. Bayer argues that such evidence is irrelevant under Rule 402, prejudicial under Rule 403, and inadmissible character evidence under Rule 404(b).
At oral argument, Onyx agreed to drop four of the five indications and trials at issue — pulmonary arterial hypertension ("PAH"); gastrointestinal stromal tumor ("GIST"); thyroid cancer; and breast cancer in combination with the chemotherapy agent capecitabine ("Breast Cape"). Thus, the Court only considers the parties' arguments regarding 1st line colorectal cancer ("CRC").
With respect to relevance, Bayer contends that evidence of Bayer's alleged efforts to block Nexavar's development in CRC is irrelevant because Onyx does not claim any damages from this conduct, and the fact of damages is a necessary component of Onyx's claims for breach of contract and breach of fiduciary duty. See Mot. at 6. But as the Court pointed out at the hearing, the alleged conduct as to 1st line CRC, if proven to be part of a larger campaign to promote DAST and undermine Nexavar, is probative to Bayer's motive and conduct vis-a-vis the blocking of Nexavar trials for which damages are sought. As Onyx noted, both provisions of § 3.6 arguably import (at least the jury may so find) motive as an element of the breach claims. Section 3.6 makes Bayer's motive for blocking Nexavar relevant to whether it has breached the contract because if Bayer blocked Nexavar for legitimate business reasons and in good faith, there is no violation of § 3.6. These documents are also relevant not just to show Bayer's "motive" to breach, but as direct evidence of its alleged bad faith generally in violation of the implied covenant of good faith and fair dealing. See Universal Sales Corp. v. California Press Mfg. Co., 20 Cal.2d 751, 772, 128 P.2d 665 (1942) ("In every contract there is an implied covenant that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract."). In addition, as discussed above, Bayer's argument against offering evidence of motive is, at the least, inapplicable to Onyx's tort-based claims.
Even assuming Bayer is correct that this conduct would be irrelevant for Onyx's damages claims, Bayer neglects to address Onyx's remaining claims, including a claim for declaratory relief in the form of "a declaration that Bayer cannot allow its products outside the Collaboration to prejudice
In addition, because Onyx will seek to show that Bayer's conduct is sufficiently outrageous to warrant punitive damages, evidence of the scope of Bayer's allegedly wrongful conduct is relevant to such a claim. Bayer points to the general and undisputed requirement that punitive damages must bear some relationship to compensatory damages as support for its position that evidence of Bayer's other alleged wrongdoing cannot support punitive damages. See Reply at 9 (citing O'Neil v. Spillane, 45 Cal.App.3d 147, 161, 119 Cal.Rptr. 245 (1975)); BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 580, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996); Bains LLC v. Arco Prods. Co., 405 F.3d 764, 776-77 (9th Cir. 2005); Lew Wenzel & Co. of S. Cal., Inc. v. London Litho Supply Co., 563 F.2d 1367, 1368 (9th Cir.1977). However, these cases do not stand for the broad proposition that only evidence which is attached to a specific compensatory damages claim is relevant to a claim for punitive damages. Rather, these cases merely discuss the difficulty of awarding punitive damages when the plaintiff has suffered no compensable harm whatsoever, or when the amount of damages is out of proportion to the amount of compensatory damages. This does not answer the question of whether evidence for which the plaintiff does not claim damages may nonetheless inform a jury's determination of whether the defendant's conduct is worthy of punitive damages.
Indeed, on this question, BMW indicates that evidence that does not go directly to compensatory damages is nonetheless relevant and admissible. In BMW, the Supreme Court explicitly noted that conduct which could not form the basis of a punitive damages award — BMW's out-of-state conduct which was not unlawful in those states — was nonetheless relevant. See BMW, 517 U.S. at 574 n. 21, 116 S.Ct. 1589 ("Of course, the fact that the Alabama Supreme Court correctly concluded that it was error for the jury to use the number of sales in other States as a multiplier in computing the amount of its punitive sanction does not mean that evidence describing out-of-state transactions is irrelevant in a case of this kind. To the contrary, as we stated in TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 462, n. 28, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993), such evidence may be relevant to the determination of the degree of reprehensibility of the defendant's conduct."). The Court also considered evidence of potential harm. Id. at 575, 581-82, 116 S.Ct. 1589. Bayer can thus point to no case that suggests that each specific example of wrongdoing must be attached to a compensable damages claim in order to be relevant to its claim that Bayer breached its
Accordingly, Bayer has failed to demonstrate that this evidence is irrelevant. See Fed.R.Evid. 401 (defining relevant evidence broadly to include any testimony "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence").
Bayer also contends that this evidence would be prejudicial under Rule 403, and should be excluded on that basis. However, given its relevance as noted above, Bayer has failed to demonstrate that the prejudicial result from its introduction would substantially outweigh its probative value. Fed.R.Evid. 403. Bayer asserts that this evidence would distract and mislead the jury, and lead to a series of mini-trials. However, Onyx has alleviated most of these concerns by eliminating most of the indications at issue. In addition, the fact that Bayer will need to put on additional witnesses to explain and defend its conduct with respect to the same plaintiff, under the same contract, does not lead to the kind of prejudice or potential confusion that substantially outweighs the probative value of this evidence. Cf. Tennison v. Circus Circus Enterprises, Inc., 244 F.3d 684, 690 (9th Cir.2001) (in sexual harassment case, finding that the exclusion of evidence regarding complaints by other, non-plaintiff employees years prior to the conduct at issue in that action was not an abuse of discretion). The evidence is admissible under 403.
Finally, Bayer argues that this evidence is inadmissible character evidence under Rule 404(b), which prohibits "[e]vidence of other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith." The Court is not persuaded. As with its arguments discussed above, here Bayer ignores Onyx's non-damages claims, for which evidence of Bayer's alleged blocking of Nexavar in other indications is not "other crimes, wrongs, or acts," but rather is part of the same conduct Onyx challenges here and against which it seeks declaratory and punitive relief. Moreover, Rule 404(b) allows for such character evidence where it may show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." While Bayer is correct that motive is not relevant in an action seeking contract damages, see Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal.4th 503, 516, 28 Cal.Rptr.2d 475, 869 P.2d 454 (1994), Onyx has asserted tort claims as well as contract claims in this action, and as explained at the hearing, Bayer's motive is relevant to a claim sounding in tort.
Bayer seeks to exclude any documents related to Project Othello, its internal codename for discussions about its potential acquisition of Onyx in 2009. Mot. at 8. Bayer argues that these documents are irrelevant because Bayer never acquired Onyx, and prejudicial under Rule 403.
Given the content of these documents — which include admissions that Onyx may use to seek to rebut numerous positions Bayer is taking in this litigation — Bayer has failed to demonstrate that they are irrelevant or substantially more prejudicial than probative. As Onyx points out, see Opp. at 16-17, the fact that Bayer never acquired Onyx does not negate the relevance of its discussions to this litigation, as those discussions concerned the relationship and acknowledged potential conflicts between DAST and Nexavar, Bayer's obligations under the contract, and Bayer's ongoing relationship with Onyx. See, e.g., Trial Exh. 384 at -082-83, (indicating that the "[c]ommercial value of DAST is limited by Onyx partnership" and that DAST is in "direct competition with Nexavar" and has "very similar molecular structure"); Trial Exh. 397 (evaluating economic effects of developing DAST for certain indications instead of Nexavar); Trial Exh. 416 (discussing options for switching certain Nexavar trials to DAST); Trial Exh. 440 (discussing benefits of developing DAST over Nexavar in certain indications). This evidence is probative of Bayer's knowledge and thus its potential motives irrespective of the fact that it ultimately did not acquire Onyx.
Finally, as with the evidence discussed above in the second motion in limine, here Bayer has failed to demonstrate prejudice that would substantially outweigh the probative value of these documents as a whole. Again, Bayer assumes that this litigation solely involves a claim for breach of contract. See Reply at 14. Though the Court need not determine whether this evidence would be admissible if only contract claims were asserted, because bad faith and breach of fiduciary duty are at issue here, this evidence is sufficiently probative — notwithstanding its potential damaging effect on Bayer — to bring it outside the confines of 403.
Bayer's motion to exclude these documents is DENIED without prejudice to more tailored objections on a case-by-case basis.
Bayer seeks to exclude any testimony from Onyx's damages expert, Iain Cockburn, as to Onyx's claimed damages from lost profits due to Bayer's alleged blocking of Nexavar's development in Breast AI and CRC-KRAS indications. Mot. at 11. Bayer argues that Cockburn's testimony cannot establish that Onyx suffered damages with reasonable certainty, as is required under California law. See Vestar Development II, LLC v. General Dynamics Corp., 249 F.3d 958, 961 (9th Cir.2001) ("It has long been settled in California that `the proof must establish with reasonable certainty and probability that damages will result in the future to the person
Bayer's arguments are nearly identical to those it raised in its motion for summary judgment, which Judge Patel denied. Indeed, much of Bayer's motion appears to have been cut and pasted from its earlier summary judgment motion. In her order, Judge Patel rejected Bayer's assertion that a 57% percent chance of FDA approval is insufficient to qualify as "reasonably certain." See Memorandum & Order, Docket No. 143, at 20. She found that "Onyx has raised at least an issue of fact as to the propriety of its requested damages." Id. Bayer has not requested leave to file a motion for reconsideration of that ruling. See Civ. L.R. 7-9.
Moreover, viewed independently, this Court agrees with Judge Patel's conclusion. Bayer argues that a 57-62% chance of FDA approval is insufficient as a matter of law to create a "reasonable certainty." Mot. at 13. In addition, Bayer contends that Onyx should not be permitted to present evidence of "risk-adjusted damages," which it claims demonstrate that Onyx's damages claims are speculative. See Mot. at 15-16. As Onyx has agreed at oral argument not to introduce any evidence of risk-adjusted damages, the Court considers only the reasonable certainty argument.
Bayer can point to no case, nor has Judge Patel or this Court uncovered such a case, in which California courts have mandated a percentage of certainty above 57% in order to constitute "reasonable certainty." See Memorandum & Order, Docket No. 143, at 20. Rather, most cases addressing reasonable certainty adhere to a qualitative approach, and the cases Bayer cites do not support the kind of wholesale rejection of evidence that Bayer requests from this Court. For example, as Judge Patel found, the principal case on which Bayer relies for its assertion that recovering damages for lost profits in pharmaceutical products is "exceedingly difficult," see AlphaMed Pharm. Corp. v. Arriva Pharm., Inc., 432 F.Supp.2d 1319 (S.D.Fla.2006), aff'd, 294 Fed.Appx. 501 (11th Cir.2008), is distinguishable on numerous grounds from the instant case. See Memorandum & Order at 19 (emphasizing that AlphaMed, unlike this case, involved a product that had never been tested, might have been illegal to distribute, and for which it was uncertain whether there was a sufficient research and development budget, among other differences). In another case on which Bayer relies, Matthews v. Atchison, Topeka & Santa Fe Railway Co., 54 Cal.App.2d 549, 560, 129 P.2d 435 (1942), the court was referring to a case in which the court reduced, rather than eliminated, damages to account for their lack of certainty.
Under California law, damages evidence found to be too speculative faced more uncertainty than is present in this case, in which Nexavar has already been approved for two cancer indications and the parties have experience successfully promoting its sale. See, e.g., Kids' Universe v. In2Labs, 95 Cal.App.4th 870, 887-888, 116 Cal.Rptr.2d 158 (2002) (finding expert testimony insufficient to demonstrate lost profits where a small toy store claimed that flood damage to the store caused by defendant led to $50 million in lost profits because Plaintiff's new website would have allowed it to compete in the Internet toy marketing business); Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 962 (9th Cir.2001) (finding lost profits claim too speculative for breach of agreement to negotiate where plaintiff sought "future profits that it hoped to earn from the shopping center it had planned to build on the parcel it was attempting to buy"); Eisenmayer v. Leonardt, 148 Cal. 596, 601, 84 P. 43 (1906) (affirming exclusion of testimony as
Those cases that do attach some mathematical component to the reasonable certainty analysis further support Onyx's view that a probability of greater than 50% is sufficient to create a "reasonable certainty." See Wagner v. Apex Marine Ship Mgmt. Corp., 83 Cal.App.4th 1444, 1452, 100 Cal.Rptr.2d 533 (2000) (discussing the need for a more flexible construction of the statute of limitations in latent disease cases because otherwise "most plaintiffs will be unable to prove that the likelihood of the future illness is "reasonably certain," i.e., greater than 50 percent, as courts generally require [for damages].") (quoting Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 119 (D.C.Cir.1982) ("Recovery of damages for speculative or conjectural future consequences
At the least, then, California law provides no indication that an estimated 57% likelihood of FDA approval cannot satisfy the reasonable certainty requirement. Moreover, as Judge Patel noted, Onyx has pointed out that 57% is a low bar in this case, as it estimates an 80% likelihood that at least one of the indications will succeed.
A witness or exhibit not listed in a party's pretrial conference statement may not be called or used without good cause. This rule does not apply to true rebuttal witnesses (other than experts). Defense witnesses are normally considered case-in-chief witnesses, not "rebuttal" witnesses.
The parties shall file their final witness lists by noon, September 30, 2011.
The parties shall lodge all expert reports, including their supplemental expert reports, with the Court no later than Wednesday, September 28, 2011.
Attached to this order as Exhibit A, the Court provides its rulings on Onyx's representative exhibits to which Bayer's objects. Attached as Exhibit B, the Court provides its rulings on Bayer's representative exhibits to which Onyx objects. At the pretrial conference herein, the Court explained the principles it employs in adjudicating relevance and admissibility. The parties are directed to meet and confer and resolve any remaining differences on objections. The parties shall submit a revised narrowed list of exhibits and any remaining objections by September 28, 2011.
The Court has considered the parties' representative deposition designations and objections, Docket No. 202. With respect to Bayer's designation number 5, Robert Jones 22:23-23:1, the Court reserves this question for trial as to whether Bayer has laid a sufficient foundation for the necessity of impeachment. With respect to Bayer's designation number 6, Robert Jones 113:25-114:22, the Court reserves the question for trial as it is keyed to Exhibit 1077, for which the Court has tentatively overruled Onyx's hearsay objection subject to a proper foundation at trial. See Exhibit B. With respect to all other representative deposition designations, the Court overrules the objections. As with the exhibits, the parties shall meet and confer and resolve objections. The parties shall submit a revised (narrowed) list by September 28, 2011.
Based on the parties' submissions and the Court's general practice, the Court intends to ask the following voir dire questions during jury selection. Counsel will be allowed a brief (20 minutes) follow-up voir dire after the Court's questioning.
The Court shall address the verdict form at a subsequent date.
Regarding instructions, as the Court noted at the pretrial conference, the parties are directed to meet and confer and try to reach an agreement on the instructions. The parties shall file with the Court no later than noon Friday, September 23, 2011, a set of agreed upon instructions and the parties' respective positions and proposed language where they disagree.
In addition to the above, the parties shall provide the Court with any stipulated facts to be read to the jury, to be filed on
IT IS SO ORDERED.
# Exh. Description Onyx Statement of Bayer Onyx Court's # Relevance Objection Response to Ruling * Objections 1 185 Nexavar This video, prepared 802; 805 Bayer's Overruled Launch jointly by Onyx and statements are Video 004 Bayer, contains party-opponent (native statements by Onyx admissions video) and Bayer scientists and are and physicians therefore not regarding the discovery hearsay. and development of Bayer Nexavar, including endorsed the statements on technical statements by issues relating to the Onyx and "recognition" that third parties, DAST met the Exhibit which were D standard (which is also made in relevant to the the regular Collaboration course of Compound dispute) business. and concerning the adverse effect profile of Nexavar (which is relevant to Onyx's claims under § 3.6 of the Collaboration Agreement). 2 219 Email from This exhibit 402; 403; The document Overruled P. Pucci to demonstrates Bayer's subject of is relevant A. Busch et competing interests in MIL and probative al. re: Re: Nexavar and DAST in to Onyx's § Sorafenib — the context of the 3.6 claim. Relief For development of Any risk of Many Nexavar for treatment prejudice, Sufferers of of pulmonary confusion, or Pulmonary hypertension (also waste of time Hypertension known as "PAH") (See does not also Onyx's "substantially Opposition to Bayer's outweigh" the Motion in Limine.) probative value of the document.
3 315 Nexavar in This exhibit reveals 402; 403; The document Overruled PAH - Recommended Bayer's concern with subject of is relevant Path allowing Nexavar MIL and probative Forward development in PAH to Onyx's § Presentation due to the risk of 3.6 claim. creating a competitor Any risk of to DAST. (See also prejudice, Onyx's Opposition to confusion, or Bayer's Motion in waste of time Limine.) does not "substantially outweigh" the probative value of the document. 4 365 Email from This internal Bayer 402; 403 The document Overruled R. Rosen to document shows that is relevant H. Bishop Bayer oncology and probative et al. re: EC personnel initially were to Onyx's § Alignment-Please prepared to support the 3.6 claim. Read development of Any risk of Nexavar in 2nd line prejudice, CRC-KRAS. After confusion, or Bayer decided to waste of time develop DAST in does not CRC, and performed "substantially calculations showing outweigh" the that it would realize probative greater profits from value of the developing DAST in document. CRC, Bayer refused to authorize the Nexavar trial in CRC KRAS. 5 384 Oncology As explained in detail 402; 403; The document Overruled Strategy - BoM in Onyx's opposition to subject of is relevant Presentation Bayer's Motion in MIL and probative Limine (at 11-15), this to Onyx's § exhibit contains 3.6 claim. numerous highly Any risk of relevant facts that prejudice, contradict Bayer confusion, or positions. (See also waste of time Onyx's Opposition to does not Bayer's Motion in "substantially Limine at 11-17.) outweigh" the probative value of the document.
6 397 Spreadsheet This exhibit contains 402; 403; The document Overruled Model re: Bayer's economic subject of is relevant General modeling of various MIL and probative Project development options to Onyx's § Information for DAST. It reveals, 3.6 claim. for DAST among other things, Any risk of that DAST and prejudice, Nexavar would confusion, or "cannibalize" one waste of time another if both drugs does not were developed in the "substantially same indications and outweigh" the that Bayer would probative potentially earn value of the hundreds of millions of document. dollars of additional profits if it developed DAST, rather than Nexavar, as a treatment for CRC. (See also Onyx's Opposition to Bayer's Motion in Limine at 11-17.) 7 416 Email from This internal document 402; 403; The document Overruled P. Sandor to circulated among subject of is relevant R. Rosen et Bayer's senior MIL and probative al. re: oncology team reveals to Onyx's § DAST vs. that Bayer reached a 3.6 claim. NXV decision to develop Any risk of DAST extensively by prejudice, mid - January, less than confusion, or one week before Onyx waste of time proposed its Phase 3 does not trials of Nexavar in "substantially CRC KRAS and Breast outweigh" the AI. The email chain probative also contains a value of the discussion of Bayer's document. "switching strategy," which is highly relevant for the reasons discussed in Onyx's Opposition to Bayer's Motion in Limine. (See also Onyx's Opposition to Bayer's Motion in Limine at 17-19.)
8 439 Email from This exhibit contains 602 This is an Overruled L. Adnane statements from Bayer internal email to B. Lu et scientists concerning between al. re: their recognition that Bayer DAST Nexavar and DAST personnel, MOA inhibit cancer through produced the same mechanism of from Bayer's action, and evidences files. Rule Bayer's knowledge 602 does not that DAST would preclude the compete directly with admission Nexavar. into evidence of this internal Bayer document. 9 440 DAST in This exhibit presents 402; 403; The document Overruled Development Bayer's economic 602; is relevant Scenarios-Assumptions modeling showing that subject of and probative and developing DAST in MIL to Onyx's § Results competition to Nexavar 3.6 claim. Presentation was far more profitable Any risk of than limiting DAST to prejudice, indications in which confusion, or Nexavar was not being waste of time developed. It also does not establishes that an even "substantially more profitable option outweigh" the for Bayer than probative developing DAST and value of the Nexavar in competing document. indications would be for Bayer to block Nexavar development in any indication in which Bayer planned to develop DAST. (See also Onyx's Opposition to Bayer's Motion in Limine at 11-19.)
10 497 Email from This exhibit shows that 802 Qualifies for Overruled T. Coles to Onyx asked Bayer business A. Fibig et about the structure of records al. re: DAST in March 2009. exception. DAST In response, Bayer disclosed the structure to Onyx. The timing of this disclosure is relevant to Bayer's statute of limitations and laches defenses. 11 503 Email from This exhibit 402; 802; The document Overruled B. Flannelly demonstrates that 805; is relevant to T. Coles Bayer blocked subject of and probative et al. re: Nexavar's MIL to Onyx's § CRC 1st development as a first 3.6 claim. Line line treatment for Any risk of colorectal cancer. prejudice, Onyx explained the confusion, or relevance of Bayer's waste of time strong arm tactics does not disclosed in its "substantially document in its outweigh" the opposition to Bayer's probative Motion in Limine. value of the (See Onyx's document. Opposition to Bayer's Qualifies for Motion in Limine at 8-9.) business records exception to hearsay. In addition, Bayer's statements are party-opponent admissions.
12 506 Email from This exhibit, an 402; 403; The document Overruled H. Bishop internal Bayer e-mail, subject of is relevant to R. Rosen describes Bayer's MIL and probative et al. re: opposition to Onyx's to Onyx's § CRC 1st proposal to pursue a 3.6 claim. Line clinical trial of Any risk of Nexavar in CRC. prejudice, Among other things, confusion, or the e-mail includes the waste of time statement that "we also does not need to keep in mind "substantially that it [i.e., CRC] is outweigh" the most likely a place probative where we would put value of the DAST which make document. [sic] the issue more convoluted." The relevance of this evidence is discussed in greater length in Onyx's opposition to Bayer's Motion in Limine (See Onyx's Opposition to Bayer's Motion in Limine at 8-9.) 13 509 Email from This exhibit 402; 403; The document Overruled A. Wagner demonstratives Bayer's subject of is relevant to B. Lu et desire to keep secret its MIL and probative al. re: ITOG competing interests in to Onyx's § DAST as of March 3.6 claim. 2009 and to steer key Any risk of opinion leaders to prejudice, DAST, and away from confusion, or Nexavar. waste of time does not "substantially outweigh" the probative value of the document.
14 539 Email from This exhibits 402; 403; Onyx's Overruled J. Lasowski underscores the 802; proposal to to T. Coles different approaches to subject of Bayer to et al. re: the collaboration MIL pursue a joint Ardea exhibited by the two business parties and the role of transaction is DAST in coloring a business Bayer's conduct record and towards Onyx. In this not hearsay. exhibit, Onyx invited Moreover, the Bayer to join Onyx in exhibit was evaluating a possible offered to joint transaction demonstrate involving Ardea, a that Onyx company developing a made its drug that held promise proposal. as a combination partner for Nexavar. Bayer ignored Onyx's invitation, pursued secret discussions with Ardea, culminating in an exclusive license agreement, and is now planning combination trials with Ardea's drug and DAST. 15 540 Email from This exhibit contains 402; 403; The document Overruled H. Bishop Onyx's reaction to the subject of is relevant to A. announcement that MIL and probative Higgins, cc: Bayer had entered into to Onyx's § A. Fibig re: an agreement with 3.6 claim. Onyx/Tony Ardea that excluded Any risk of Coles Onyx, followed by an prejudice, internal Bayer e-mail confusion, or admitting that Bayer's waste of time "aspirations for this does not molecule go beyond "substantially Nexavar." outweigh" the probative value of the document.
16 838 Email from This exhibit contains 402; 403; Not hearsay Overruled B. Flannelly Bayer's notification to 802 since offered to J. Onyx, made six months to show Lasowski et after Onyx's original Bayer email al. re: Bayer invitation to pursue a received by and Ardea joint transaction, that Onyx. BioSciences Bayer had entered into Announcement an exclusive license agreement with Ardea, along with a cover note from the recipient to Onyx management notifying them of Bayer's disclosure. 17 867 Minutes of This document 402; 403; The document Overruled the Bayer provides the minutes of Subject of is relevant Schering the meeting at which MIL and probative Pharma AG the Oncology Strategy to Onyx's § Board of Project slides were Any risk of Management presented to Bayer 3.6 claim. Meeting management and prejudice, (BoM) provides the best confusion, or 01/09 evidence of the date on waste of time which the meeting took does not place. It is therefore "substantially relevant and probative outweigh" the to Onyx's claims of probative breach of § 3.6 of the value of the Collaboration document. Agreement. * All objections that are overruled are without prejudice as to lack of foundation (e.g., business records). Evidence to which objections are overruled is still subject to foundation requirements.
PRETRIAL CONFERENCE ORDER EXHIBIT B — BAYER EXHIBITS WITH ONYX OBJECTIONS # Exh. Description Bayer Onyx Bayer Response to Ruling * # Statement of Objection Onyx's Objection Relevance 1 Exh. Onyx Shows Onyx's 501, 802, Privilege log is by Sustained 1048 Privilege knowledge of Cal Code definition not Log DAST and its Evid 913 privileged, it's a actions in 801(d)(2) party response to that admission, and knowledge California evidence rules don't apply to federal court proceeding. Even if it did, not seeking any inference about the privileged actions, merely the existence of the communications about the subjects listed. 2 Exh. 1053 Data from 802 It is an 803(6) Overruled Spreadsheet Bayer's files business record. R&D project showing how This is an output of costs much Bayer specific financial spent 2007-2011 data kept in the for ordinary course of development of an electronic DAST. business by Bayer in database. 3 Exh. Onyx Q4 Transcript of 802 It is an 801(d)(2) Overruled 1070 2010 Onyx's party admission. Earnings statements Conf call shows its characterization of the development of Nexavar as well as its other pipeline drugs.
4 Exh. 4/26/06 Post Onyx internal 403 Onyx improperly Overruled 1071 email to email shows its claims prejudice for Renton re: position a document based Other regarding both on the fact that it indications parties potential helps prove Bayer's interest in case. There is no developing prejudice evident drugs in from Onyx's Senior indications that VP of R&D might also be discussing his available for understanding of Nexavar, and how Bayer and how Bayer and Onyx's interests in Onyx's development for interests might Nexavar and other diverge. compounds might align. 5 Exh. 1/25-26/94 Contemporaneous 802 It is an 803(6) Overruled 1077 meeting memo that business record, it minutes documents contains 801(d)(2) between negotiations of party admissions of Onyx and Collaboration Onyx during Bayer/Miles Agreement negotiations, and the Bayer statements contained within provide necessary context for Onyx's admissions. Deposition testimony from Klaus Brandau supports that the author of the minutes had the responsibility for taking meeting notes and subsequently turning them into minutes. 6 Exh. 4/3/09 Bayer email to 802 It is an 803(6) Overruled 1102 Bishop email Onyx reflects business record and to Coles re: consistent it contains both DAST belief that 801(d)(2) Onyx DAST is not a party admissions collaboration and also context for compound. understanding those admissions.
7 Exh. 11/25/09 Letter from 402 Section 3.6 is a Sustained 1121 Rhyu letter Onyx's lawyer disputed section in to Swanson containing this case and re: Onyx's position evidence relating to Discovery regarding its Onyx's Issues interpretation of interpretation of that section 3.6 section is probative of that dispute. 8 Exh. 9/21/05 It relates to 402, 403, It is an 801(d)(2) Sustained 1127 Schenker Bayer/Onyx 802 party admission. email string negotiations of Any potential to Quigley an amendment prejudice from re: Revised to redactions can be Draft Co-Promotion Collaboration cured by Court's Agreement Agreement. instruction to jury on privilege, if necessary. 9 Exh. 11/12/93 This documents 802 It is an 803(6) Overruled 1137 Bayer/Onyx negotiations of business record, it meeting Collaboration contains 801(d)(2) minutes Agreement. party admissions of Onyx during negotiations, and the Bayer statements contained within provide necessary context for Onyx's admissions. Deposition testimony from Klaus Brandau supports that the author of the minutes had the responsibility for taking meeting notes and subsequently turning them into minutes.
10 Exh. 7/29/93 It reflects Onyx 402, 403 There's no evident Sustained 1151 Onyx BOD update to its prejudice associated meeting board of with Board Minutes, minutes directors on and does not status of substantially negotiation of outweigh probative the value of evidence Collaboration that Onyx's Board Agreement in of Directors July 1993. discussed negotiations in this time period. 11 Exh. 3/9/11 Turck Reflects 802 It is an 803(6) Overruled 1162 email to Bayer's notice business record of Brege on to Onyx that it Bayer/Onyx going would agree to dealings, and it is forward with proceed with necessary context AI modified Breast for Onyx 801(d)(2) AI study. party admissions regarding the Breast AI study. 12 Exh. 9/6/01 Reflects Bayer 802 It is an 803(6) Overruled 1193 Shimei and Onyx business record of fax/letter to dealing with Bayer/Onyx Giotta re: prior disputes dealings in the Pho Kinase over whether Collaboration. Inhibitor Bay compounds are 60-8829 Collaboration Compounds, showing Onyx's awareness of the issue yet failure to take action in 2005. This is relevant to the laches defense, as well as contract interpretation.
13 Exh. 12/8/05 Reflects Bayer 802 It is an 803(6) Overruled 1198 conference public business record. It call statements may also not be transcript re: about DAST used for the truth of Bayer R&D development, the matter asserted Investor Day which Onyx (DAST development 2005 representatives plans), but rather as admitted that evidence that Bayer they heard. made the statements Onyx's lack of contained within the action document about following this DAST, and that call is relevant Onyx witnesses to to the laches the conference call defense as well heard those as contract statements regarding interpretation. DAST. 14 Exh. 3/5/08 Reflects Onyx's 802 It is an 803(6) Sustained 1213 Southerton development of business record of email to non-Nexavar Pfizer/Onyx Giotta re: drugs for dealings on their status of treatment of joint compound PD332991 cancer, under development. clinical including development indications that it is also interested in developing Nexavar 15 Exh. 11/13/09 This is the letter 402 This is the letter to Sustained 1422 Swanson to which Exh which Exh 1121 is letter to 1121 is responding, and Rhyu responding, and relates to Onyx's relates to interpretation of Onyx's section 3.6 of the interpretation of Collaboration section 3.6 of Agreement. It is the necessary for Collaboration context and Agreement. It understanding of is necessary for Onyx's statements context and in Exh. 1121. understanding of Onyx's statements in Exh. 1121.
16 Exh. 8/12/09 Reflects Bayer 802 It is an 803(6) Sustained 1549 Bishop email internal notice business record. to Rosen et regarding al. re: DAST principles for and Nexavar DAST testing development (guiding principles for development) 17 Exh. 3/28/01 Reflects 802 Contains 801(d)(2) Overruled 1592 Brocks email discussion of party admissions string to Nexavar and context for Busse re: development those admissions. Onyx and Onyx's Also functions as an nonoptioning plans regarding 803(6) business of co-development that record. development. 18 Exh. 1/20/11 Reflects 802 It is an 803(6) Overruled 1674 presentation: updates and business record of Frontline discussions of Bayer/Onyx Aromatase Nexavar development Inhibitor development in discussions, like the Breast the disputed AI many other Cancer indication. examples of similar Business powerpoints in the Case exhibits for which Overview no objection was leveled. 19 Exh. 9/26/07 Reflects 403, 802 Contains 801(d)(2) Sustained 1708 Malik email discussions of party admissions of string to bringing DAST Onyx and context Moeller re: into for those PAH Collaboration admissions. sorafenib with Onyx. Onyx improperly claims prejudice for a document based on the fact that it helps prove Bayer's case.
20 Exh. Urea Spreadsheet of 802 It is an 803(6) Overruled 1776 Spreadsheet. data from business record. xls & ".DB" Bayer's files of This is an output of file the relevant specific chemical compositions of data kept in the matter made ordinary course of and tested by business by Bayer in Bayer during an electronic the database that tracks Collaboration all chemistry and and the RKI2 biology work done project, at Bayer. including dates of synthesis. 21 Exh. 1/28/10 Reflects issues 802 It is an 803(6) Overruled 1778 Breast AI of Nexavar's business record of PPT for EC development in Nexavar the disputed AI development, indication. prepared for the joint Executive Committee. It also contains 801(d)(2) Onyx party admissions and context for those admissions. 22 Exh. Spreadsheet Data showing 802, 901 It is an 803(6) Overruled 1796 how much business record. Bayer spent This is an output of 2007-2011 for specific financial development of data kept in the DAST, ordinary course of Nexavar, and business by Bayer in all other an electronic oncology drugs. database. Onyx has no reasonable belief that the document is not authentic given that its format and content is consistent with and corroborated by other similar business records like Exh. 1053 and Exh. 1089 that are outputs from the same database.
23 Exh. 4/14/11 Joint Reflects 802 It is an 803(6) Overruled 1826 Development discussions and business record of Committee presentations Nexavar meeting on Nexavar development. Agenda and development at slides JDC (both Bayer and Onyx have members), including in indications in dispute in this case 24 Exh. 1/19/05 Relates to 402, 403 It is an 803(6) Overruled 1833 presentation Nexavar business record. re: Sorafenib development, There's no apparent Full including issues prejudice in the Potential in disputed document and it "Back of the indications. doesn't outweigh its Envelope" probative value Assessment regarding evaluations of potential Nexavar development. Onyx improperly claims prejudice for a document based on the fact that it helps prove Bayer's case. 25 Exh. 6/30/08 Post Internal Onyx 403 There is no Overruled 1834 email to email shows prejudice associated Fuchs re: Onyx's with Onyx's ACT Biotech knowledge knowledge of regarding DAST. Onyx DAST, relevant improperly claims to the laches prejudice for a defense as well document based on as contract the fact that it helps interpretation. prove Bayer's case. Any potential prejudice from redactions can be cured by instructions from the Court. * All objections that are overruled are without prejudice as to lack of foundation (e.g., business
1. Should a daily transcript and/or real-time reporting be desired, the parties shall make arrangements with the Supervisor of the Court Reporting Services at (415) 522-2079, at least ten calendar days prior to the trial date.
2. During trial, parties may wish to use, e.g., overhead projectors, laserdisk/computer graphics, poster blow-ups, models, or specimens of devices. The
1. Trial will normally be conducted from 8:30 a.m. to 2:00 p.m. (or slightly longer to finish a witness), with one 15-minute break and one 40-minute lunch break. Parties must arrive by 8:00 a.m. or, in a jury trial, earlier as needed for any matters to be heard out of the presence of the jury. The jury will be called at 8:30 a.m. The trial week is Monday through Thursday, excluding holidays. Fridays are dark.
1. In civil jury cases, there are no alternate jurors, and the jury is typically selected as follows. At the outset, 18 potential jurors are called and seated in the jury box and front courtroom bench in the order their names are drawn from the drum. This placement will determine their order in the selection process. The Court will first conduct its voir dire of the entire panel (not just the seated 18) to determine hardships. Jurors excused from the seated 18 will be replaced from those drawn from the panel. The Court will then voir dire the seated 18 for cause. Afterwards, the parties will be allowed a brief follow-up voir dire (15 minutes). Once all voir dire is completed, the Court will address all challenges for cause and excuse those potential jurors who have been successfully challenged. After a short recess, each side may exercise its allotment of peremptory challenges. The plaintiff has the first challenge, the defendant the next two, the plaintiff the next two, and so forth. The default number of peremptory challenges per party or side is three. Any party that passes will be deemed to have used a challenge. The eight (or such other size as will constitute the jury) surviving the challenge process with the lowest numbers become the final jury. Once the jury selection is completed, the jurors' names will be read again, and they will be seated in the jury box and sworn in. The Court may alter the above procedure in its discretion.
2. Jurors may take notes. Note pads will be distributed at the beginning of each trial. The pads will remain in the jury room at the end of each day. Jurors will be instructed on the use of notes both in the preliminary and final jury instructions.
1. Ordinarily, the Court shall set fixed time limits for the presentation of evidence by each side at the final pretrial conference. The time limit includes all examination time (whether direct, cross, re-direct, or re-cross) for each witness regardless of which party called the witness. Opening and closing time limits shall be separately considered.
1. Each side may be subject to a predetermined time limit for its opening statement.
2. Parties must cooperate and meet and confer to exchange any visuals, graphics, or exhibits to be used in the opening statements, allowing for time to work out objections and any reasonable revisions one court day in advance of trial.
3. In a jury case, parties should be prepared to give opening statements as soon as the jury is sworn.
1. At the close of each trial day (at 2:00 p.m.), parties shall exchange a list of witnesses for the next full court day and the exhibits that will be used on direct and cross-examination (other than for impeachment of an adverse witness). By 4:00 p.m.
2. Parties should always have their next witness ready and in the Courthouse. Failure to have the next witness ready may constitute resting.
3. Parties are expected to cooperate with each other in the scheduling and production of witnesses. Witnesses may be taken out of order if necessary. Every effort shall be made to avoid calling a witness twice (as an adverse witness and later as a party's witness).
4. If a witness is testifying at the time of a recess or adjournment and has not been excused, the witness shall be seated back on the stand when court reconvenes. If a new witness is to be called immediately following recess or adjournment, the witness should be seated in the front row, ready to be sworn.
5. Immediately before each new witness takes the stand, counsel calling the witness shall place on the witness stand a clearly marked copy of each exhibit that counsel expects to have the witness refer to during his or her direct examination. Immediately before beginning cross-examination, counsel conducting cross-examination shall do the same with any additional exhibits to be referenced on cross.
6. If counsel intends to have the witness draw diagrams or put markings on visual exhibits or diagrams prepared by the party calling the witness, the witness shall do so before taking the stand. Once on the stand, the witness shall adopt the diagrams and/or markings and explain what they represent. If the diagram or visual exhibit is prepared by the opposing party, the witness shall not make any markings on the diagram or visual exhibit without leave of the Court.
7. A witness or exhibit not listed in the joint pretrial conference statement may not be called or used without good cause. This rule does not apply to true rebuttal witnesses (other than experts). Defense witnesses are normally considered case-in-chief witnesses, not "rebuttal" witnesses.
1. Depositions used at trial for impeachment shall comply with the following procedure:
1. The following procedure applies only to witnesses who appear by deposition. It does not apply to live witnesses whose depositions are read in while they are on the stand. To prepare designated deposition testimony, counsel shall photocopy the cover page, the page where the witness is sworn, and each page from which any testimony is proffered, including pages containing a counter-designation made by opposing counsel. Counsel should redact objections or colloquy unless needed to understand the question. In addition, counsel should redact any testimony that has not been designated or any testimony to which an objection has been made and sustained by the Court. Any corrections must be interlineated and references to exhibit numbers must conform to the trial numbers. The finished packet should then be the actual script and should smoothly present the identification and swearing of the witness and testimony desired.
2. Counsel is free to play a videotaped version of any deposition testimony, but counsel must have a system for immediate display of the precise testimony omitting any properly redacted passages.
1. Use numbers only, not letters, for exhibits, preferably the same numbers as were used in depositions. Blocks of numbers should be assigned to fit the need of the case (e.g., Plaintiff has 1 to 100, Defendant A has 101 to 200, Defendant B has 201 to 300, etc.). A single exhibit should be marked only once. If the plaintiff has marked an exhibit, then the defendant should not re-mark it. Different versions of the same document, e.g., a copy with additional handwriting, must be treated as different exhibits. To avoid any party claiming "ownership" of an exhibit, all exhibits shall be marked and referred to as "Trial Exhibit No. _____," not as "Plaintiff's Exhibit" or "Defendant's Exhibit." If an exhibit number differs from that used in a deposition transcript, however, then the latter must be conformed to the new trial number if and when the deposition testimony is read (so as to avoid confusion over exhibit numbers).
2. Exhibits are not to be filed but rather shall be submitted to chambers (two sets). Exhibits must be premarked. In addition, one set of exhibits must be tagged. Exhibits shall be three-hole punched and shall be submitted in binders. Sample tags may be obtained from the Courtroom Deputy and are attached as Exhibit A hereto.
3. Parties must consult with each other and with the Courtroom Deputy at the end of each trial date and compare notes as to which exhibits are in evidence and any limitations thereon. If there are any differences, parties should bring them promptly to the Court's attention.
4. In a jury trial, before the case goes to the jury, parties must confer with the Courtroom Deputy to make sure the exhibits going to the jury room are all in evidence and in good order. Parties may, but are not required to, jointly provide a revised list of all exhibits actually in evidence (and no others) stating the exhibit number and a brief, non-argumentative description (e.g., letter from A to B, dated August 17, 1999). This list may go into the jury room to help the jury sort through exhibits. In a bench trial, parties may follow a similar procedure to help the Court sort through exhibits.
1. Counsel shall stand when making objections and briefly state the basis of the objection.
3. There can be only one lawyer per witness per party for all purposes, including objections.
4. In a jury trial, sidebar conferences are discouraged. The procedures outlined in these guidelines should eliminate the need for most sidebars.
5. In a jury trial, to maximize jury time, parties must alert the Court in advance of any problems that will require discussion outside the presence of the jury so that the conference can be held before court begins or after the jury leaves for the day.
1. Shortly before trial or a final pretrial conference, parties occasionally wish jointly to advise the Courtroom Deputy that a settlement has been reached and seek to take the matter off calendar, but it turns out later that there was only a settlement "in principle" and disputes remain. Cases, however, cannot be taken off calendar in this manner. Unless and until a legally binding settlement is reached, all parties must be prepared to proceed with the final pretrial conference as scheduled and to proceed to trial on the trial date, or face dismissal of the case for lack of prosecution or entry of default judgment. To facilitate settlement, the Court is available to place the material terms of a settlement on the record. Only an advance continuance expressly approved by the Court will release parties from their obligation to proceed to trial. If parties expect that a settlement will be final by the time of trial or the final pretrial conference, they should notify the Court immediately in writing or, if it occurs over the weekend before the trial or conference, by voicemail to the Courtroom Deputy. The Court will attempt to confer with the parties as promptly as circumstances permit to determine if a continuance will be in order or if it can assist the parties in putting the settlement on the record. Pending such a conference, however, parties must prepare and make all filings and be prepared to proceed with trial.
2. Civil Local Rule 40-1 provides that jury costs may be assessed as sanctions for failure to provide the Court with timely written notice of a settlement. Please be aware that any settlement reached on the day of trial, during trial, or at any time after the jury or potential jurors have been summoned will normally require the parties to pay juror costs.
