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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`META PLATFORMS, INC.,
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`Plaintiff.
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`v.
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`BRANDTOTAL LTD., et al.,
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`Defendants.
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`Case No. 20-cv-07182-JCS
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`CASE MANAGEMENT AND
`PRETRIAL ORDER (JURY)
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`IT IS HEREBY ORDERED THAT:
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`I. TRIAL DATE
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`A. Jury trial will begin on October 31, 2022, at 8:30 a.m., in Courtroom TBD, U.S. District
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`Court, 450 Golden Gate, San Francisco, California.
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`B. The length of the trial will be not more than eight (8) days.
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`II.
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`PRETRIAL CONFERENCE
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`A Final Pretrial Conference shall be held on October 7, 2022, at 2:00 p.m., by Zoom (Zoom
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`Webinar: 161 926 0804. Password: 050855). Each party shall attend by lead trial counsel.
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`III. TRIAL PROCEDURES
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`A. Counsel shall not prepare a Joint Pretrial Conference Statement. Instead, thirty
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`(30) calendar days in advance of the Final Pretrial Conference, please do the following:
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`1. In lieu of preparing a Joint Pretrial Conference Statement, the parties shall meet
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`and confer in person, prepare and file a jointly signed Proposed Final Pretrial
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`Order that contains: (a) a brief description of the substance of claims and defenses
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`which remain to be decided; (b) a statement of all relief sought; (c) all stipulated
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`facts; (d) a list of all factual issues that remain to be tried, stating the issues with
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`Revised 5-9-18
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`Case 3:20-cv-07182-JCS Document 371 Filed 08/30/22 Page 2 of 15
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`the same generality/specificity as any contested elements in the relevant jury
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`instructions and organized by counts; (e) a joint exhibit list in numerical order,
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`including a brief description of the exhibit and Bates numbers, a blank column for
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`when it will be offered into evidence, a blank column for when it may be received
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`into evidence, and a blank column for any limitations on its use; and (f) each
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`party’s separate witness list for its case-in-chief witnesses (including those
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`appearing by deposition) providing, for all such witnesses, a short statement of
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`the substance of his/her testimony and, separately, what, if any, non-cumulative
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`testimony the witness will offer. If non-cumulative testimony is not spelled out,
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`the Court will presume the witness is cumulative. For each witness, state an
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`hour/minute time estimate for the direct examination (only). Items (e) and (f)
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`should be appendices to the proposed order. The proposed order should also state
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`which issues, if any, are for the Court to decide, rather than the jury. The
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`objective is to convert the proposed order to a final order with the benefit of any
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`discussion at the Final Pretrial Conference.
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`2. File a joint set of proposed instructions on substantive issues of law arranged in a
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`logical sequence. If undisputed, an instruction shall be identified as "Stipulated
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`Instruction No.__ Re__," with the blanks filled in as appropriate. Disputed
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`instructions shall be identified as "Disputed Instruction No.__ Re__." Where the
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`parties offer competing versions of a disputed instruction, both versions shall be
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`inserted together, back to back, in their logical place in the overall sequence. All
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`disputed versions of the same basic instruction shall bear the same number. For
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`all disputed instructions, regardless of whether the parties offer competing
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`versions of a disputed instruction or a disputed instruction on a particular subject
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`is offered by only one party, each party shall provide a brief explanation of its
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`position, with citations to relevant authority. These explanations should be
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`inserted in the joint jury instructions on the page(s) immediately following the
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`disputed instruction(s). Even if stipulated, an instruction shall be supported by
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`citation to relevant authority and/or identifying the source of the proposed
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`instruction in the case of form instructions. Any modification to a form
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`instruction should be plainly identified. With respect to form preliminary
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`instructions, general instructions, or concluding instructions, the parties should
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`use the Ninth Circuit Model Jury Instructions when available. As to those
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`instructions, the parties may simply cite to the numbers of the requested
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`instructions in the current edition of the Ninth Circuit Model Jury Instructions.
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`Other than citing the numbers, the parties need not include preliminary, general,
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`or concluding instructions in the packet.
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`3. File a joint set of proposed voir dire questions supplemented as necessary by
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`separate requests for good cause only.
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`4. Any motions in limine shall be submitted as follows: at least thirty (30) calendar
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`days before the conference, the moving party shall serve, but not file, the opening
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`brief. The responding party shall serve the opposition, ensuring that it is
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`delivered to the moving party no later than noon Pacific Time at least twenty (20)
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`calendar days before the conference. There will be no reply. When the
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`oppositions are received, the moving party should collate the motion and the
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`opposition together, back-to-back, and then file the paired sets at least twenty
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`(20) calendar days before the conference. Each motion should be presented in a
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`separate memorandum and properly identified, for example, “Plaintiff’s Motion
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`in Limine No. 1 to Exclude . . . .” Please limit motions in limine to circumstances
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`that really need a ruling in advance. Usually five or fewer motions per side is
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`sufficient. Each motion should address a single, separate topic, and contain no
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`more than seven pages of briefing per side. Leave of Court will be required for
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`more or longer motions.
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`5. File trial briefs on any controlling issues of law.
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`6. File proposed verdict forms, joint or separate.
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`B. Not less than ten (10) days before the Pretrial Conference, counsel or the parties
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`shall file and serve any objections to exhibits.
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`C. Exhibits and witnesses not included in the Proposed Joint Pretrial Order pursuant to
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`Paragraph III.A. may not be used in a party’s case-in-chief and may not be used during cross
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`examination of the other side's case- in-chief (other than for impeachment). Defense witnesses are
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`not rebuttal witnesses. Objections not raised pursuant to Paragraph III.B. are waived.
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`D. Chambers’ copies of the aforementioned documents shall submitted in .pdf format
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`and emailed to JCSPO@cand.uscourts.gov. Please do not submit paper copies unless requested by
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`the Court. The Joint Proposed Final Pretrial Order, jury instructions, and verdict form shall be
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`submitted via e-mail as attachments, in MS Word format, to Judge Spero's Law Clerk
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`Melissa_Dawson@cand.uscourts.gov, or Sam_Wheeler@cand.uscourts.gov
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` and to Judge Spero's Courtroom Deputy Karen_Hom@cand.uscourts.gov. Please do not submit
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`papers copies unless requested by the Court.
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`E. At the Final Pretrial Conference, the above submissions shall be considered and
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`argued. The parties shall submit a joint summary of all rulings in proposed order format.
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`PRETRIAL ARRANGEMENTS
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`F. Should a daily transcript and/or real-time reporting be desired, the parties shall
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`make arrangements with Richard Duvall, Supervisor of the Court Reporting Services, at (415)
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`522-2079, or Richard_Duvall@cand.uscourts.gov, at least fourteen (14) calendar days prior to the
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`trial date.
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`G. During trial, counsel may wish to use overhead projectors, computer graphics,
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`poster blow-ups, models, or specimens of devices. Equipment should be shared by all counsel to
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`the maximum extent possible. The Court has an AV cart that can be made available to counsel. If
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`the parties are interested in using the Court's AV cart, they should contact the deputy clerk one (1)
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`week prior to the final pretrial conference to inquire about availability. The AV cart can't be
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`reserved until the day of the final pretrial conference. Once the AV cart has been reserved, the
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`deputy clerk will make arrangements with counsel for training on the AV cart. If the AV cart is
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`not available, the Court can only provide an easel. The United States Marshal requires a court
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`order to allow equipment into the courthouse. For electronic equipment, parties should be
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`prepared to maintain the equipment or have a technician handy at all times. The parties shall tape
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`Case 3:20-cv-07182-JCS Document 371 Filed 08/30/22 Page 5 of 15
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`extension cords to the carpet for safety. The parties may work with the deputy clerk, Karen Hom
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`(415-522-2035), on all courtroom-layout issues.
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`SCHEDULING
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`H. Trial will be conducted from 8:30 a.m. to 2:30 p.m. (or slightly longer to finish a
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`witness) with one fifteen-minute break and one forty-five (45) minute lunch break, Monday
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`through Thursday, excluding holidays. Counsel must arrive by 8:15 a.m., or earlier as needed for
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`any matters to be heard out of the presence of the jury. The jury will be called at 8:30 a.m. Jury
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`deliberations will be allowed on Fridays.
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`THE JURY
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`I. No later than on the first day of trial, counsel shall jointly submit a simplified
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`Statement of the Case to be read to the jury during voir dire as part of the proposed jury
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`instructions. Unless the case is extremely complex, this statement should not exceed one page.
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`The Court will usually conduct the voir dire.
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`J. In civil cases, there are no alternate jurors and the jury is selected as follows:
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`Twenty jurors are called to fill the jury box and the row in front of the bar, and are given numbers
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`(1 through 20). The remaining potential jurors will be seated in the public benches. Hardship
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`excuses will usually be considered at this point. The Court will then ask questions of those in the
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`box and in the front of the bar. Counsel may then conduct a limited voir dire. Challenges for
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`cause will then be addressed out of the presence of the potential jurors. The Court will consider
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`whether to fill in the seats of the stricken jurors. If so, questions will be asked of the additions and
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`cause motions as to them will be considered. After a short recess, each side may exercise its
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`allotment of peremptory challenges out of the presence of the potential jurors. The eight (or such
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`other size as will constitute the jury) surviving the challenge process with the lowest numbers
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`become the final jury. For example, if the plaintiff strikes 1, 5, and 7 and the defendant strikes 2,
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`4, and 9, then 3, 6, 8, 10, 11, 12, 13, and 14 become the final jury. If more (or fewer) than eight
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`jurors are to be seated, then the starting number will be adjusted. So too if more than a total of six
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`peremptories is allowed. Once the jury selection is completed, the jurors’ names will be read
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`again and they will be seated in the jury box and sworn. The Court may alter the procedure in its
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`discretion.
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`K. Jurors may take notes. Note pads will be distributed at the beginning of each trial.
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`The note pads will be collected at the end of each day and locked in the jury room. Jurors will be
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`instructed on the use of notes both in the preliminary and final jury instructions.
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`OPENING STATEMENTS
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`L. Each side will have a predetermined time limit for its opening statement (usually no
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`more than 45 minutes per side). Counsel must cooperate and meet and confer to exchange any
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`visuals, graphics, or exhibits to be used in the opening statements, allowing for time to work out
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`objections and any reasonable revisions. Opening statements will commence as soon as the jury is
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`sworn.
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`WITNESSES
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`M. At the close of each trial day, all counsel shall exchange a list of witnesses for the
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`next two full court days and the exhibits that will be used during direct examination (other than for
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`impeachment of an adverse witness). Within 24 hours of such notice, all other counsel shall
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`provide any objections to such exhibits and shall provide a list of all exhibits to be used with the
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`same witness on cross-examination (other than for impeachment). The first notice shall be
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`exchanged prior to the first day of trial. All such notices shall be provided in writing.
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`N. The parties and counsel shall have all upcoming witnesses ready to testify. Failure
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`to have the next witness ready or to be prepared to proceed with the evidence will usually be
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`deemed to constitute resting. If counsel plans to read in a transcript of a deposition, counsel must
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`have a deposition prepared and vetted early on to read into the record.
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`O. Counsel shall prepare two (2) sets of witness binders with the exhibits they plan to
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`use with that witness. The second set will be given to the Court on the day the witness testifies.
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`P. When there are multiple parties, counsel are responsible for coordination of the
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`cross-examination to avoid duplication.
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`Q. If there are multiple parties on a side, counsel for only one party may cover a
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`subject matter; reiteration of the examination, whether direct or cross, will not be permitted.
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`EXPERTS
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`R. At trial, direct testimony of experts will be limited to the matters disclosed in their
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`reports. Omitted material may not ordinarily be added on direct examination. Illustrative
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`animations, diagrams, charts, and models may be used on direct examination only if they were part
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`of the expert report, with the exception of simple drawings and tabulations that plainly illustrate
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`the content of the report, which can be drawn by the witness at trial or otherwise shown to the
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`jury. If cross-examination fairly opens the door, however, an expert may go beyond the written
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`report on cross-examination and/or re-direct examination. By written stipulation, all parties may
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`relax these requirements. The Court will not permit Federal Rule of Evidence 703 to be used to
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`admit otherwise inadmissible evidence through the expert (i.e., through the “back door”).
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`S. As to damages studies, the cut-off date for past damages will be as of the expert
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`report (or such earlier date as the expert may select). In addition, the experts may try to project
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`future damages (i.e., after the cut-off date) if the substantive standards for future damages can be
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`met. With timely leave of Court or by written stipulation, the experts may update their reports
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`(with supplemental reports) to a date closer to the time of trial.
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`USE OF DEPOSITIONS TO IMPEACH AND SHORT READ-INS
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`T. Depositions can be used at trial to impeach a witness testifying at trial or, in thecase
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`of a party deponent, “for any purpose.” The parties shall abide by the following procedure:
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`1.
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`On the first day of trial, counsel shall bring the original and clean
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`copies of any deposition(s) intended to be used during the course of
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`the trial. Any corrections must be readily available. If counsel need
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`to use the deposition during a witness examination, they shall provide
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`the Court with a copy with any corrections at the outset of the
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`examination. This will minimize delay between the original question
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`and the read-ins of the impeaching material. Opposing counsel should
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`have their copy immediately available.
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`2.
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`When counsel reads a passage into the record, counsel should seek
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`permission from the Court. For example, counsel should state: “I wish
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`to read in page 210, lines 1 to 10 from the witness’ deposition.” A
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`brief pause will be allowed for any objection.
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`3.
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`The first time a deposition is read, counsel shall state the deponent’s
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`name, the date of the deposition, the name of the lawyer asking the
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`question, and if it was a Federal Rule of Civil Procedure 30(b)(6)
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`deposition. The first time a deposition is read, the Court will give an
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`appropriate explanation to the jury about depositions. Do not
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`embellish with follow-on questions.
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`4.
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`When reading in the passage, counsel shall state “question” and then
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`read the question exactly, followed by,“answer” and then read the
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`answer exactly. Stating “question” and “answer” is necessary so the
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`jury and the court reporter can follow who was talking at the
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`deposition. Once the passage is on the record, move on. Opposing
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`counsel may then immediately ask to read such additional testimony
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`as is necessary to complete the context.
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`5.
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`To avoid mischaracterizing the record, counsel should not ask,
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`“Didn’t you say XYZ in your deposition?” It is unnecessary to ask a
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`witness if he “recalls” the testimony or otherwise to lay a foundation.
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`6.
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`Subject to Federal Rule of Evidence 403, party depositions may be
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`read into the record whether or not they contradict trial testimony (and
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`regardless of who the witness is on the stand). For example, a short
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`party deposition excerpt may be used as foundation for questions for a
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`different witness on the stand.
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`DEPOSITION DESIGNATION
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`U. The following procedure applies only to witnesses who appear by deposition. It
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`does not apply to live witnesses whose depositions are read into the record while they are on the
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`stand.
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`1. To designate deposition testimony, counsel shall photocopy the cover
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`page, the page where the witness is sworn, and then each page containing
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`any testimony to be proffered, with lines through portions of such pages
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`not proffered. In addition, counsel shall line through objections or
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`colloquy unless they are needed to understand the question. Any
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`corrections must be interlineated, and references to exhibit numbers must
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`conform to the trial numbers. Such interlineations should be done by
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`hand. The finished packet should then be the actual script and should
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`smoothly present the identification and swearing of the witness and
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`testimony desired. The packet must be provided to all other parties at
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`least twenty (20) calendar days before the Pretrial Conference. For the
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`rare case of voluminous designations, more lead time will be required.
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`Counsel are advised to be reasonable.
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`2. All other parties must promptly review the packet and highlight in yellow
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`any passages objected to and write in the margin the legal basis for the
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`objections. If a completeness objection is made, the objecting party must
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`insert into the packet the additional passages as needed to cure the
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`completeness objection. A completeness objection generally should be
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`made only if a few extra lines will cure the problem. Such additions shall
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`be highlighted in blue and an explanation for the inclusion shall be legibly
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`handwritten in the margin. Counsel must line out or x-out any irrelevant
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`portions of the additional pages.
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`3. The packets, as adjusted, must then be returned to the proffering party, for
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`consideration of whether to accept the adjustments. Next, counsel shall
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`meet and confer. Counsel for the proffering party must collate and
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`assemble a final packet that covers the proffer and all remaining issues.
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`At least ten (10) calendar days before the Pretrial Conference, the
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`proponent must provide the Court with the final packet, with any
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`objected-to portions highlighted and annotated as described above. If
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`exhibits are needed to resolve the objections, counsel should include
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`copies, with the relevant passages highlighted and tagged. The Court will
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`then read the packet and indicate its rulings in the margin in a distinctive
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`manner. Ordinarily, argument will not be needed.
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`4. Counter-designations must be made by providing a packet with the
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`counter-designated passages to the proponent at the same time any
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`objections to the original proffer are returned to the first proffering party,
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`who must then supply its objections in the same manner.
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`5. When the packet is read to the jury, the examiner shall read the questions
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`(and any relevant colloquy) from the lectern while a colleague sits in the
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`witness stand and reads the answers. While reading the deposition the
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`reader and “witness” shall refrain from undue emoting, emphasis or other
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`dramatization.
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`6. When a video deposition is to be played, the video should omit any dead
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`time, long pauses, and objections/colloquy not necessary to understand
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`the answers.
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`REQUESTS FOR ADMISSIONS AND INTERROGATORIES
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`V. Please designate responses to requests for admissions and interrogatory answers in
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`the same manner and under the same timetable as deposition designations.
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`EXHIBITS
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`W. Prior to the Final Pretrial Conference, counsel must meet and confer in person to
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`consider all exhibit numbers and objections and to eliminate duplicate exhibits and confusion over
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`the precise exhibit.
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`X. Use numbers only, not letters, for exhibits, preferably the same numbers as were
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`used in depositions. Blocks of numbers should be assigned to fit the need of the case (e.g.,
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`Plaintiff has 1 to 100, Defendant A has 101 to 200, Defendant B has 201 to 300, etc.). A single
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`exhibit should be marked only once, just as it should have been marked only once in discovery
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`pursuant to this Court’s discovery guidelines. If the plaintiff has marked an exhibit, then the
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`Case 3:20-cv-07182-JCS Document 371 Filed 08/30/22 Page 11 of 15
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`defendant should not re-mark the exact document with another number. Different versions of the
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`same document, e.g., a copy with additional handwriting, must be treated as different exhibits with
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`different numbers. To avoid any party claiming “ownership” of an exhibit, all exhibits shall be
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`marked and referred to as “Trial Exhibit No. _____,” not as “Plaintiff’s Exhibit” or “Defendant’s
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`Exhibit.” If an exhibit number differs from that used in a deposition transcript, then the latter
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`transcript must be conformed to the new trial number if and when the deposition testimony is read
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`to the jury (so as to avoid confusion over exhibit numbers). The jury should always hear any
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`given exhibit referred to by its unique number. There should be no competing versions of the
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`same exhibit number; any discrepancies must be brought to the Court’s attention promptly.
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`Y. The exhibit tag shall be in the following form:
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`TRIAL EXHIBIT 100
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`Case No. ________________
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`Date Entered _____________
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`By______________________
`Deputy Clerk
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`Counsel preferably will make the tag up in a color that will stand out (yet still allow for
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`photocopying), but that is not essential. Place the tag on or near the lower right-hand corner or, if
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`a photograph, on the back. Counsel should fill in the tag but leave the last two spaces blank.
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`The parties must jointly prepare a single set of all trial exhibits that will be the official record set
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`to be used with the witnesses and on appeal. Each exhibit must be tagged, three-hole-punched,
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`separated with a label divider identifying the exhibit number, and placed in 3-ring binders. Spine
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`labels should indicate the numbers of the exhibits that are in the binders. Each set of exhibit
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`binders should be marked as "Original". Deposit the exhibits with the deputy clerk ten (10) days
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`before the Pretrial Conference.
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`Z. Counsel must consult with each other and with the deputy clerk at the end of each
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`trial day and compare notes as to which exhibits are in evidence and any limitations thereon. If
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`there are any differences, counsel should bring them promptly to the Court’s attention.
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`AA.
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`In addition to the official record exhibits, a single, joint set of bench binders
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`containing a copy of the exhibits must be provided to the Court ten (10) days before the Pretrial
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`Conference, and should be marked as "Chambers Copies". Each exhibit must be separated with a
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`label divider identifying the exhibit number. (An exhibit tag is unnecessary for the bench set.)
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`Spine labels should indicate the numbers of the exhibits that are in the binders.
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`BB. Before the closing arguments, counsel must confer with the deputy clerk to make
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`sure the exhibits in evidence are in good order. Counsel may, but are not required to, jointly
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`provide a revised list of all exhibits actually in evidence (and no others) stating the exhibit number
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`and a brief, non-argumentative description (e.g., letter from A. B. Case to D. E. Frank, dated
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`August 17, 1999). This list may go into the jury room to help the jury sort through exhibits in
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`evidence.
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`CC. Exhibit notebooks for the jury will not be permitted without prior permission from
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`the Court. Publication must be by poster blow-up, overhead projection, or such other method as is
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`allowed in the circumstances. It is permissible to highlight, circle or underscore in the
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`enlargements as long as it is clear that it was not on the original.
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`OBJECTIONS
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`DD. Counsel shall stand when making objections and shall not make speeches. Simply
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`give the legal basis for your objection (e.g., “calls for speculation” or “objection, hearsay”).
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`EE.
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`There can only be one lawyer per witness per party for all purposes, including
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`objections. Only one lawyer will be permitted to make the opening statement and closing
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`argument unless the Court has given prior approval to more than one lawyer doing so.
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`FF.
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`Side bar conferences are discouraged.
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`GG. To maximize jury time, counsel must alert the Court in advance of any problems
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`that will require discussion outside the presence of the jury, so that the conference can be held
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`before court begins or after the jury leaves for the day.
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`STIPULATIONS
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`HH. You must read all stipulations to the jury in order for them to become a part of the
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`record.
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`TIME LIMITS
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`II.
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`Ordinarily, the Court shall set fixed time limits at the final pretrial conference. All
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`of your examination time (whether direct, cross, re-direct or re-cross) for all witnesses must fit
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`within your time limit. Opening and closing time limits shall be considered separately. The time
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`taken at a side bar or on objections will still be charged to the examining party unless otherwise
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`ordered.
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`CHARGING CONFERENCE
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`JJ.
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`As the trial progresses and the evidence is heard, the Court will fashion a
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`comprehensive set of jury instructions to cover all issues actually being tried. Prior to the close of
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`the evidence, the Court will provide a draft final charge to the parties. After a reasonable period
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`for review, one or more charging conferences will be held at which each party may object to any
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`passage, ask for modifications, or ask for additions. Any instruction request must be renewed
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`specifically at the conference or it will be deemed waived, whether or not it was requested prior to
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`trial. If a party still wishes to request an omitted instruction after reviewing the Court’s draft, then
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`it must affirmatively re-request it at the charging conference in order to give the Court a fair
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`opportunity to correct any error. Otherwise, as stated, the request will be deemed abandoned or
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`waived.
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`JUROR QUESTIONNAIRE
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`The attached voir dire questionnaire shall be given to the potential jurors and copies of the
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`responses will be made available to counsel at the beginning of voir dire.
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`IT IS SO ORDERED.
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`Case 3:20-cv-07182-JCS Document 371 Filed 08/30/22 Page 14 of 15
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`Dated: August 30, 2022
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`______________________________________
`JOSEPH C. SPERO
`United States Chief Magistrate Judge
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`Case 3:20-cv-07182-JCS Document 371 Filed 08/30/22 Page 15 of 15
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`CONFIDENTIAL
`JUROR QUESTIONNAIRE
`Please fill out this form as completely as possible and print clearly. Since we want to make copies
`for the attorneys and the Court, do not write on the back of any page. If you need more room,
`continue at the bottom or on the side of the page. Thank you for your cooperation.
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`1.
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`8.
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`Your name:
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`Your age:
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`City in which you reside:
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`Your place of birth:
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`Do you rent or own your own home?
`Yes
`Are you married or do you have a domestic partner?
`Please list the occupation of your spouse or domestic partner:
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` No
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`If you are not married and do not have a domestic partner, are you (circle one, if
`applicable):
`( ) Widowed
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`( ) Divorced
`( ) Separated
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`( ) Single
`If you have children, please list their ages and sex and, if they are employed, please give
`their occupations:
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`10. What is your occupation and how long have you worked in it? (If you are retired, please
`describe your main occupation when you were working.)
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`11. Who is (or was) your employer?
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`12.
`How long have you worked for this employer?
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`13.
`Please describe your education background:
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`Highest grade completed:
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`College and/or vocational schools you have attended:
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`Major areas of study:
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`14.
`Have you ever had jury experience?
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`If yes: State/County Court
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` Federal Court
`When?
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`Was it a civil or criminal case?