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Waymo LLC v. Uber Technologies, Inc.
United States District Court, N.D. California
June 7, 2017
WAYMO LLC, Plaintiff,
UBER TECHNOLOGIES, INC., OTTOMOTTO LLC, and OTTO TRUCKING LLC, Defendants.
CASE MANAGEMENT ORDER, REFERENCE TO MAGISTRATE JUDGE
FOR MEDIATION/ SETTLEMENT, AND FURTHER REFERENCE TO
MAGISTRATE JUDGE FOR DISCOVERY SUPERVISION
WILLIAM ALSUP United State District Judge
case management conference, the Court enters the following
order pursuant to Rule 16 of the Federal Rules of Civil
Procedure (“FRCP”) and Civil Local Rule 16-10:
1. All initial disclosures under FRCP 26 must be completed by
June 21, 2017, on pain of preclusion,
including full and faithful compliance with FRCP
2. Leave to add any new parties or amend pleadings must be
sought by June 22, 2017.
3. The non-expert discovery cut-off date shall be
August 24, 2017.
4. The deadline for waiving privilege has already passed.
5. Subject to the exception in the next paragraph, the last
date for designation of expert testimony and disclosure of
full expert reports under FRCP 26(a)(2) as to any issue on
which a party has the burden of proof (“opening
reports”) shall be August 24, 2017.
Within fourteen calendar days of said
deadline, all other parties must disclose any expert reports
on the same issue (“opposition reports”). Within
seven calendar DAYS
thereafter, the party with the burden of proof must disclose
any reply reports rebutting specific material in opposition
reports. Reply reports must be limited to true rebuttal and
should be very brief. They should not add new material that
should have been placed in the opening report and the reply
material will ordinarily be reserved for the rebuttal or
sur-rebuttal phase of the trial. If the party with the burden
of proof neglects to make a timely disclosure, the other
side, if it wishes to put in expert evidence on the same
issue anyway, must disclose its expert report within the
fourteen-day period. In that event, the party with the burden
of proof on the issue may then file a reply expert report
within the seven-day period, subject to possible exclusion
for “sandbagging” and, at all events, any such
reply material may be presented at trial only after, if at
all, the other side actually presents expert testimony to
which the reply is responsive. The cutoff for all expert
discovery shall be FOURTEEN CALENDAR DAYS
after the deadline for reply reports. In aid of preparing an
opposition or reply report, a responding party may depose the
adverse expert sufficiently before the deadline for the
opposition or reply report so as to use the testimony in
preparing the response. Experts must make themselves readily
available for such depositions. Alternatively, the responding
party can elect to depose the expert later in the
expert-discovery period. An expert, however, may be deposed
only once unless the expert is used for different opening
and/or opposition reports, in which case the expert may be
deposed independently on the subject matter of each report.
At least 21 CALENDAR DAYS before the due
date for opening reports, each party shall serve a list of
issues on which it will offer any expert testimony in its
case-in-chief (including from non-retained experts). This is
so that all parties will be timely able to obtain
counter-experts on the listed issues and to facilitate the
timely completeness of all expert reports. Failure to so
disclose may result in preclusion.
6. As to damages studies, the cut-off date for past
damages will be as of the expert report (or such earlier
date as the expert may select). In addition, the experts may
try to project future damages (i.e., after
the cut-off date) if the substantive standards for future
damages can be met. With timely leave of Court or by written
stipulation, the experts may update their reports (with
supplemental reports) to a date closer to the time of trial.
7. At trial, the direct testimony of experts will be limited
to the matters disclosed in their reports. Omitted material
may not ordinarily be added on direct examination.
This means the reports must be complete and sufficiently
detailed. Illustrative animations, diagrams, charts and
models may be used on direct examination only if they were
part of the expert's report, with the exception of simple
drawings and tabulations that plainly illustrate what is
already in the report, which can be drawn by the witness at
trial or otherwise shown to the jury. If cross-examination
fairly opens the door, however, an expert may go beyond the
written report on cross-examination and/or redirect
examination. By written stipulation, of course, all sides may
relax these requirements. For trial, an expert must learn and
testify to the full amount of billing and unbilled time by
him or his firm on the engagement.
8. To head off a recurring problem, experts lacking
percipient knowledge should avoid vouching for the
credibility of witnesses, i.e., whose version of the
facts in dispute is correct. This means that they may not,
for example, testify that based upon a review of fact
depositions and other material supplied by counsel, a police
officer did (or did not) violate standards. Rather, the
expert should be asked for his or her opinion based -
explicitly - upon an assumed fact scenario. This will make
clear that the witness is not attempting to make credibility
and fact findings and thereby to invade the province of the
jury. Of course, a qualified expert can testify to relevant
customs, usages, practices, recognized standards of conduct,
and other specialized matters beyond the ken of a lay jury.
This subject is addressed further in the trial guidelines
referenced in paragraph 19 below.
9. No summary judgment or further Rule 12 motion may be filed
without advance Court approval. Such approval may be sought
by a three-page précis letter explaining the basis and
need for the motion.
10. The parties shall please meet and confer and agree on a
deadline by which plaintiff must make a final determination
regarding the exact number and lineup of trade secrets to be
tried. The final lineup should consist of less than ten trade
secrets, and the deadline should fall on a date in August
2017 that will permit sufficient preparation time for opening
expert reports. The parties shall please file a statement
with a jointly proposed date for this deadline by
June 16, 2017.
11. The final pretrial conference shall be
on September 27, 2017, at 2:00
p.m. Although the Court encourages argument and
participation by younger attorneys, lead trial counsel must
attend the final pretrial conference. For the form of
submissions for the ...
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