Case 8:16-cv-02641-VMC-JSS Document 23 Filed 10/28/16 Page 1 of 17 PageID 258
`
`United States District Court
`Middle District of Florida
`Tampa Division
`
`AMIT AGARWAL,
`
`Plaintiff,
`
`v.
`
`Case No: 8:16-cv-2641-33JSS
`
`TOPGOLF INTERNATIONAL, INC.,
`
`Defendant.
` /
`PATENT SCHEDULING ORDER
`
`The Court supplements its Case Management and Scheduling Order with more
`
`detailed deadlines and procedures with respect to claims construction in this patent case.
`
`Importantly, the Court limits the parties to 10 claims. In that regard, the parties shall
`
`jointly identify the 10 terms likely to be most significant to resolving the parties' dispute,
`
`including those terms for which construction may be case or claim dispositive. Having
`
`considered the case management report prepared by the parties, see Fed. R. Civ. P. 26 (f)
`
`and Local Rule 3.05 (c), the Court enters this case management and scheduling order:
`
` Mandatory Initial Disclosures (pursuant to Fed. R. Civ. P.
` 26(a)(1))
` Certificate of Interested Persons and Corporate Disclosure
`Statement
`
` Motions to Add Parties or Amend Pleadings
`
` Plaintiff shall serve Disclosure of Asserted Claims and Preliminary
` Infringement Contentions and accompanying document production
`
` Defendants shall serve the Preliminary Invalidity Contentions and
` accompanying document production
`
`November 14, 2016
`
`November 25, 2016
`
`December 23, 2016
`
`COMPLETED
`February 3, 2017
`
`

`

`Case 8:16-cv-02641-VMC-JSS Document 23 Filed 10/28/16 Page 2 of 17 PageID 259
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` Parties shall exchange Proposed Terms and Claim Elements for
` Construction
`
` Parties shall exchange Preliminary Claim Constructions and
`Extrinsic Evidence
` Parties shall file Joint Claim Construction and Prehearing Statement
`
` Claim Construction Discovery shall be completed
`
` First Mediation Conference:
` Mediation Deadline:
` Mediator:
`
` D e s i g n a t e d L e a d C o u n s e l Attorney Name:
` Pursuant to Local Rule 9.04(a)(3)
`Lead Counsel Telephone Number Telephone Number:
` Plaintiff shall file Opening Claim Construction Brief
`
` Defendants shall file Claim Construction Opposition Brief
`
` Plaintiff shall file Claim Construction Reply Brief
`
` Claim Construction Hearing
`
` Second Case Management Hearing
`
` Factual Discovery Closes
`
` Parties shall serve Opening Expert Reports
`
` Parties shall serve Rebuttal Expert Reports
`
` Expert Discovery Closes
`
` Second Mediation Conference
` Last day to file summary judgment motions
`
` Last day to file opposition to summary judgment motions
` Last day to file replies to summary judgment motions
`
`-2-
`
`
`
`March 3, 2017
`
`March 17, 2017
`
`March 31, 2017
`
`April 14, 2017
`
`TBD
`May 1, 2017
`TBD
`
`Amit Agarwal
`
`310-351-6596
`May 15, 2017
`
`June 1, 2017
`
`June 12, 2017
`
`TBD
`
`TBD
`
`TBD
`
`TBD
`
`TBD
`
`TBD
`
`TBD
`TBD
`
`TBD
`TBD
`
`

`

`Case 8:16-cv-02641-VMC-JSS Document 23 Filed 10/28/16 Page 3 of 17 PageID 260
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` Parties shall file motions in limine and Daubert motions
`
` Parties shall file pretrial statement and single set of jointly proposed
` jury instructions and verdict form
` The Court will hold the pretrial conference
`
` Trial Term Begins
`
`Estimated Length of Trial
`
`TBD
`
`TBD
`
`TBD
`
`TBD
`
`4-5 days
`
`All Parties Consent to Proceed Before Assigned Magistrate Judge
`
`No
`Likely to agree in the future : No
`
`The purpose of this order is to discourage wasteful pretrial activities, and to secure the
`
`just, speedy, and inexpensive determination of the action. See Fed. R. Civ. P. 1; Local Rule
`
`1.01(b). This order controls the subsequent course of this proceeding. Fed. R. Civ. P. 16(b),
`
`(e). Counsel and all parties (both represented and pro se) shall comply with this order, with the
`
`Federal Rules of Civil Procedure, with the Local Rules of the United States District Court for
`
`the Middle District of Florida, and with
`
`the Administrative Procedures
`
`for Case
`
`Management/Electronic Case Filing. A copy of the Local Rules and Administrative Procedures
`
`may be viewed at http://www.flmd.uscourts.gov. Counsel shall also comply with the Ideals and
`
`Goals of Professionalism adopted by the Board of Governors of the Florida Bar on May 16,
`
`1990 available at www.floridabar.org (Professional Practice-Henry Latimer Center for
`
`Professionalism); Local Rule 2.04(g).
`
`I.
`
`DISCOVERY
`
`Certificate of Interested Persons and Corporate Disclosure Statement – This
`A.
`Court has previously ordered each party, governmental party, intervenor, non-party movant,
`and Rule 69 garnishee to file and serve a Certificate of Interested Persons and Corporate
`Disclosure Statement using a mandatory form. No party may seek discovery from any source
`before filing and serving a Certificate of Interested Persons and Corporate Disclosure
`Statement. A motion, memorandum, response, or other paper – including emergency motion
`– may be denied or stricken unless the filing party has previously filed and served a Certificate
`of Interested Persons and Corporate Disclosure Statement. Any party who has not already
`
`-3-
`
`

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`Case 8:16-cv-02641-VMC-JSS Document 23 Filed 10/28/16 Page 4 of 17 PageID 261
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`filed and served the required certificate shall do so within the time required by this order, or
`sanctions will be imposed.
`
`Discovery Not Filed – The parties shall not file discovery materials with the Clerk
`B.
`except as provided in Local Rule 3.03. The Court encourages the exchange of discovery
`requests on diskette or by email. See Local Rule 3.03(e).
`
`Limits on Discovery – Absent leave of Court, the parties may take no more than
`C.
`ten depositions per side (not per party). Fed. R. Civ. P. 30(a)(2)(A); Fed. R. Civ. P. 31(a)(2)(A).
`Absent leave of Court, the parties may serve no more than twenty-five interrogatories, including
`sub-parts. Fed. R. Civ. P. 33(a). Absent leave of the Court or stipulation by the parties, each
`deposition is limited to one day of seven hours. Fed. R. Civ. P. 30(d)(2). The parties may
`agree by stipulation on other limits on discovery within the context of the limits and deadlines
`established by this Case Management and Scheduling Order, but the parties may not alter the
`terms of this Order without leave of Court. See, e.g., Fed. R. Civ. P. 29.
`
`Discovery Deadline – Each party shall timely serve discovery requests so that
`D.
`the Rules allow for a response prior to the discovery deadline. The Court may deny as untimely
`all motions to compel filed after the discovery deadline.
`
`Disclosure of Expert Testimony – On or before the date set forth in the above
`E.
`table for the disclosure of expert reports, the party shall fully comply with Fed. R. Civ. P.
`26(a)(2) and 26(e). Expert testimony on direct examination at trial will be limited to the
`opinions, bases, reasons, data, and other information disclosed in the written expert report
`disclosed pursuant to this Order. Failure to disclose such information may result in the
`exclusion of all or part of the testimony of the expert witness.
`
`Confidentiality Agreements – The parties may reach their own agreement
`F.
`regarding the designation of materials as “confidential.” There is no need for the Court to
`endorse the confidentiality agreement. The Court discourages unnecessary stipulated motions
`for a protective order. The Court will enforce stipulated and signed confidentiality agreements.
`See Local Rule 4.15. Each confidentiality agreement or order shall provide, or shall be deemed
`to provide, that “no party shall file a document under seal without first having obtained an order
`granting leave to file under seal on a showing of particularized need.” See also “Motions to File
`Under Seal” below.
`
`II.
`
`MOTIONS
`
`Certificate of Good Faith Conference – Before filing any motion in a civil case,
`A.
`the moving party shall confer with the opposing party in a good faith effort to resolve the issues
`raised by the motion, and shall file with the motion a statement certifying that the moving party
`has conferred with the opposing party, and that the parties have been unable to agree on the
`resolution of the motion. Local Rule 3.01(g); Fed. R. Civ. P. 26(c). A certification to the effect
`that opposing counsel was unavailable for a conference before filing a motion is insufficient to
`satisfy the parties' obligation to confer. See Local Rule 3.01(g). No certificate is required in
`
`-4-
`
`

`

`Case 8:16-cv-02641-VMC-JSS Document 23 Filed 10/28/16 Page 5 of 17 PageID 262
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`a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss
`or to permit maintenance of a class action, to dismiss for failure to state a claim upon which
`relief can be granted, or to involuntarily dismiss an action. Local Rule 3.01(g). Nonetheless,
`the Court expects that a party alleging that a pleading fails to state a claim will confer with
`counsel for the opposing party before moving to dismiss and will agree to an order permitting
`the filing of a curative amended pleading. Fed. R. Civ. P. 15. The term "counsel" in Rule
`3.01(g) includes pro se parties acting as their own counsel, thus requiring movants to confer
`with pro se parties and requiring pro se movants to file Rule 3.01(g) certificates. The term
`“confer” in Rule 3.01(g) requires a substantive conversation in person or by telephone in a good
`faith effort to resolve the motion without court action and does not envision an exchange of
`ultimatums by fax, letter or email. Counsel who merely “attempt” to confer have not “conferred.”
`Counsel must respond promptly to inquiries and communications from opposing counsel.
`Board of Governors of the Florida Bar, Ideals and Goals of Professionalism, ¶ 6.10 and Creed
`of Professionalism ¶ 8 (adopted May 16, 1990), available at www.floridabar.org (Professional
`Practice-Henry Latimer Center for Professionalism.) The Court will deny motions that fail to
`include an appropriate, complete Rule 3.01(g) certificate.
`
`B.
`
`Extension of Deadlines
`
`The deadlines established in this Case Management and Scheduling Order are not
`advisory but must be complied with absent approval of the Court.
`
`Dispositive Motions Deadline and Trial Not Extended – Motions to
`1.
`extend the dispositive motions deadline or to continue the trial are generally denied. See Local
`Rule 3.05(c)(2)(E). The Court will grant an exception only when necessary to prevent manifest
`injustice. A motion for a continuance of the trial is subject to denial if it fails to comply with
`Local Rule 3.09. The Court cannot extend a dispositive motion deadline to the eve of trial. In
`light of the district court’s heavy trial calender, a period of at least four months is required
`before trial to receive memoranda in opposition to a motion for summary judgment, and to
`research and resolve the dispositive motion.
`
`Extensions of Other Deadlines Disfavored – Motions for an extension
`2.
`of other deadlines established in this order, including motions for an extension of the discovery
`period, are disfavored. The deadline will not be extended absent a showing of good cause.
`Fed. R. Civ. P. 16(b); Local Rule 3.09(a). Failure to complete discovery within the time
`established by this Order shall not constitute cause for continuance. A motion to extend an
`established deadline normally will be denied if the motion fails to recite that: 1) the motion is
`joint or unopposed; 2) the additional discovery is necessary for specified reasons; 3) all parties
`agree that the extension will not affect the dispositive motions deadline and trial date; 4) all
`parties agree that any discovery conducted after the dispositive motions date established in this
`Order will not be available for summary judgment purposes; and 5) no party will use the
`granting of the extension in support of a motion to extend another date or deadline. The filing
`of a motion for extension of time does not toll the time for compliance with deadlines
`established by Rule or Order.
`
`-5-
`
`

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`Case 8:16-cv-02641-VMC-JSS Document 23 Filed 10/28/16 Page 6 of 17 PageID 263
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`Motions to Compel and for Protective Order – Motions to compel and motions
`C.
`for a protective order will be denied unless the motion fully complies with Local Rule 3.04,
`requiring the motion to quote in full each interrogatory, question, or request; to quote in full
`opposing party’s objection and grounds, or response which is asserted to be insufficient; and
`to state the reasons the motion should be granted.
`
`Motions to File Under Seal – Whether documents filed in a case may be filed
`D.
`under seal is a separate issue from whether the parties may agree that produced documents
`are confidential. Motions to file under seal are disfavored, and such motions will be denied
`unless they comply with Local Rule 1.09.
`
`Memoranda in Opposition – Each party opposing any written motion, except a
`E.
`motion for summary judgment under Section II H below, shall file and serve, within fourteen
`days after being served with such motion, a legal memorandum with citation of authorities in
`opposition to the relief requested. Local Rule 3.01(b). Where no memorandum in opposition
`has been filed, the Court routinely grants the motion as unopposed. Motions titled as
`“unopposed” or “agreed” normally come to the Court’s attention prior to the deadline for
`response.
`
`Emergency Motions – The Court may consider and determine emergency
`F.
`motions at any time. Local Rule 3.01(e). Counsel should be aware that the designation
`“emergency” may cause a judge to abandon other pending matters in order to immediately
`address the “emergency.” The Court will sanction any counsel or party who designates a
`motion as “emergency” under circumstances that are not a true emergency. It is not an
`emergency when counsel has delayed discovery until the end of the discovery period. Promptly
`after filing an emergency motion, counsel shall place a telephone call to the chambers of the
`presiding judge to notify the court that an emergency motion has been filed.
`
`Page Limits - No party shall file a motion and supporting memorandum in excess
`G.
`of twenty-five pages. Local Rule 3.01(a). No party shall file an opposing brief or memorandum
`in excess of twenty pages. Local Rule 3.01(b). A motion requesting leave to file either a
`motion in excess of twenty-five (25) pages, a response in excess of twenty (20) pages, or a
`reply or further memorandum shall not exceed three (3) pages, shall specify the length of the
`proposed filing, and shall not include, as an attachment or otherwise, the proposed motion,
`response, reply, or other paper. Local Rule 3.01(d). Motions for relief from page limitations are
`disfavored and will not be granted without a specific showing of good cause.
`
`Motions for Summary Judgment : Required Materials – A motion for summary
`H.
`judgment shall specify the material facts as to which the moving party contends there is no
`genuine issue for trial, and shall include a memorandum of law, and shall be accompanied by
`affidavits and other evidence in the form required by Fed. R. Civ. P. 56. The motion for
`summary judgment and supporting memorandum of law shall be presented in a single
`document of not more than twenty-five pages. Local Rule 3.01(a).
`Each party opposing a motion for summary judgment shall serve, within thirty days
`after being served with such motion, a legal memorandum with citation of authorities in
`
`-6-
`
`

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`Case 8:16-cv-02641-VMC-JSS Document 23 Filed 10/28/16 Page 7 of 17 PageID 264
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`opposition to the relief requested as required by Local Rule 3.01(b) of not more than twenty
`pages. The memorandum in opposition shall specify the material facts as to which the
`opposing party contends there exists a genuine issue for trial, and shall be accompanied by
`affidavit(s) and other evidence in the form required by Fed. R. Civ. P. 56. The moving party
`may file a reply memorandum, not exceeding ten pages, within fourteen days after the
`response is served. NOTE: The thirty-day response deadline and the fourteen-day reply
`deadline are NOT entitled to the additional three days provided for in Federal Rule of
`Civil Procedure 6(d).
`Both the movant and the party opposing summary judgment shall provide pinpoint
`citations to the pages and lines of the record supporting each material fact. General references
`to a deposition are inadequate. On or before the date on which the memorandum in opposition
`is due, the parties may also file a stipulation of agreed material facts signed by the movant and
`the parties opposing summary judgment pursuant to Local Rule 4.15. Material facts set forth
`in the stipulation will be deemed admitted for the purposes of the motion.
`
`Daubert and Markman Motions – On or before the date established in the above
`I.
`table for the filing of motions for summary judgment, any party seeking a ruling pursuant to
`Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (admissibility of expert
`opinions) or pursuant to Markman v. Westview Instruments, Inc., 517 U.S.370 (1996)
`(interpretation of a patent claim) shall file and serve an appropriate motion. The parties shall
`prepare a glossary of technical or scientific terms where appropriate for the Court.
`
`All Other Motions Including Motions In Limine – On or before the date
`J.
`established in the above table, the parties shall file and serve all other motions including
`motions in limine. Local Rule 3.01(g) applies, and the parties shall confer to define and limit
`the issues in dispute.
`
`III.
`
`JOINT FINAL PRETRIAL STATEMENT
`
`Meeting In Person – On or before the date established in the above table, lead
`A.
`trial counsel for all parties and any unrepresented parties shall meet together in person
`pursuant to Local Rule 3.06(b) in a good faith effort to:
`
`settle the case; the parties shall thoroughly and exhaustively discuss
`1.
`settlement of the action before undertaking the extensive efforts needed to conduct final
`preparation of the case for trial and to comply with the requirements of this order;
`
`stipulate to as many facts and issues as possible; in order to assist the
`2.
`Court, the parties shall make an active and substantial effort to stipulate at length and in detail
`as to agreed facts and law, and to limit, narrow, and simplify the issues of fact and law that
`remain contested; as a rule, parties who have complied with this requirement in good faith will
`file a Joint Final Pretrial Statement listing far more agreed facts and principles of law than those
`that remain for determination at trial;
`
`-7-
`
`

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`tag, mark, identify, examine, copy, and list all original trial exhibits
`3.
`(including actual document exhibits) that any party will offer in evidence or otherwise tender to
`any witness during trial [Local Rule 3.06(b)(3) and 3.07(a)] (instructions for pre-marking of
`exhibits attached to this order); and prepare and exchange a final exhibit list on the Clerk’s
`approved form (attached to this order) bearing a description identifying each exhibit and
`sponsoring witness [Local Rule 3.07(b)]; it is anticipated that counsel will agree to the
`admission of the bulk of the opposing parties’ exhibits without objection and shall designate on
`the exhibit list the exhibits which the Court may admit without objection at trial. Absent good
`cause, the Court will not receive in evidence over objection any exhibits – including charts,
`diagrams, and demonstrative evidence – not presented to opposing counsel or unrepresented
`parties for inspection and copying at the required meeting or not listed in the joint final pretrial
`statement. Photographs of sensitive exhibits (i.e., guns, drugs, valuables) and of non-
`documentary evidence, and reductions of documentary exhibits larger than 8 ½” by 14” to be
`substituted for original exhibits after conclusion of the trial must be presented to opposing
`counsel for examination at the meeting to prepare the Joint Final Pretrial Statement.
`Objections to such photographs or reductions of exhibits must be listed in the Joint Final
`Pretrial Statement. The parties are directed to contact the trial judge’s courtroom deputy clerk
`to discuss exhibits and equipment to be used during trial; and
`
`exchange the names and addresses of all witnesses and state whether
`4.
`they will likely be called.
`
`B.
`
`The Joint Final Pretrial Statement
`
`Form of Joint Final Pretrial Statement – On or before the date
`1.
`established in the above table, the parties shall file a Joint Final Pretrial Statement that strictly
`conforms to the requirements of Local Rule 3.06(c) and this Order. This case must be fully
`ready for trial at the time that the Joint Final Pretrial Statement is due. Anticipated length
`of trial based on issues remaining at the time of the pretrial conference must be included as a
`separate line item in the parties Joint Final Pretrial Statement. Lead trial counsel for all parties,
`or the parties themselves if unrepresented, shall sign the Joint Final Pretrial Statement.
`Sanctions may be imposed for failure to comply, including the striking of pleadings. At the
`conclusion of the final pretrial conference, all pleadings are deemed to merge into the Joint
`Final Pretrial Statement, which will control the course of the trial. Local Rule 3.06(e).
`
`Exhibit List – The exhibit list filed in compliance with Local Rules
`2.
`3.06(c)(4) and 3.07(b) must be on the Clerk’s approved form (attached to this order). Unlisted
`exhibits will not be received into evidence at trial, except by order of the Court in the
`furtherance of justice. See Local Rule 3.06(e). The Joint Final Pretrial Statement must attach
`each party’s exhibit list on the approved form listing each specific objection (“all objections
`reserved” does not suffice) to each numbered exhibit that remains after full discussion and
`stipulation. Objections not made – or not made with specificity – are waived.
`
`Witness List – On the witness list required by Local Rule 3.06(c)(5), the
`3.
`parties and counsel shall designate which witnesses will definitely be called, and also designate
`
`-8-
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`

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`which witnesses may be called. Absent good cause, the Court will not permit over objection
`testimony from unlisted witnesses at trial. This restriction does not apply to true rebuttal
`witnesses (i.e., witnesses whose testimony could not reasonably have been foreseen to be
`necessary). Records custodians may be listed but will not likely be called at trial, except in the
`rare event that authenticity or foundation is contested. For good cause shown in compelling
`circumstances,
`the Court may permit presentation of
`testimony
`in open court by
`contemporaneous transmission from a different location. Fed.R.Civ.P. 43(a).
`
`Depositions – The Court encourages stipulations of fact to avoid calling
`4.
`unnecessary witnesses. Where a stipulation will not suffice, the Court permits the use of
`depositions. At the required meeting, counsel and unrepresented parties shall agree upon and
`specify in writing in the Joint Final Pretrial Statement the pages and lines of each deposition
`(except where used solely for impeachment) to be published to the trier of fact. The parties
`shall include in the Joint Final Pretrial Statement a page-and-line description of any testimony
`that remains in dispute after an active and substantial effort at resolution, together with
`argument and authority for each party’s position. The parties shall prepare for submission and
`consideration at the final pretrial conference or trial an edited and marked copy (as to the
`portion offered by each party) of any deposition or deposition excerpt which is to be offered in
`evidence.
`
`Five (5) days prior to trial, the parties shall file with the Court color-coded copies of
`deposition transcripts (preferably mini-script versions), reflecting, in different highlighted colors,
`the deposition excerpts designated by each party to be read at trial, with objections noted in
`the margin. Unresolved objections to videotape depositions shall be submitted to the Court
`ten (10) days prior to trial.
`
`Joint Jury Instructions, Verdict Form, Voir Dire Questions – In cases
`5.
`to be tried before a jury, the parties shall attach to the Joint Final Pretrial Statement a single
`jointly-proposed set of jury instructions in order of presentation to the jury, together with
`a single jointly-proposed jury verdict form. Local Rule 5.01(c). The parties should be
`considerate of their jury, and therefore should submit short, concise special verdict forms. The
`Court prefers pattern jury instructions approved by the United States Court of Appeals for the
`Eleventh Circuit. A party may include at the appropriate place in the single set of jointly-
`proposed jury instructions a contested charge, so designated with the name of the requesting
`party and bearing at the bottom a citation of authority for its inclusion, together with a summary
`of the opposing party’s objection. The Court will deny outright a proposed instruction that is
`“slanted” in any way. The Court requires that the parties, send to the Chamber's email
`[chambers flmd covington@flmd.uscourts.gov] the single set of jury instructions and
`verdict form, in Microsoft Word®. The parties may include in the Joint Final Pretrial
`Statement a single list of jointly-proposed questions for the Court to ask the venire during voir
`dire.
`
`Coordination of Joint Final Pretrial Statement – All parties are responsible for
`C.
`filing a Joint Final Pretrial Statement in full compliance with this order. Plaintiff’s counsel (or
`plaintiff if all parties are proceeding pro se) shall have the primary responsibility to coordinate
`
`-9-
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`compliance with the sections of this order that require a meeting of lead trial counsel and
`unrepresented parties in person and the filing of a Joint Final Pretrial Statement and related
`material. See Local Rule 3.10 (relating to failure to prosecute). If the plaintiff is proceeding pro
`se, defense counsel shall coordinate compliance. If counsel is unable to coordinate such
`compliance, counsel shall timely notify the Court by written motion or request for a status
`conference.
`
`D.
`Notebooks
`
`Trial Briefs, Proposed Findings of Fact and Conclusions of Law, and Exhibit
`
`Trial Briefs – Unless the Court specifically directs otherwise, Trial Briefs are not
`required in any civil case. If a party chooses to file a Trial Brief, such Trial Brief may be filed
`anytime, until and including the date of trial.
`
`Proposed Findings of Fact and Conclusions of Law – In the case of a non-
`jury trial, the parties are directed to file Proposed Findings of Fact and Conclusions of Law after
`the trial. The due date will be specified by the Court at the Final Pretrial Conference, and will
`usually fall between 30 and 60 days after the conclusion of the trial depending on the Court
`Reporter’s schedule. Proposed Findings of Fact and Conclusions of Law should contain
`citations to the record.
`
`Exhibit Notebook – On the first day of a jury trial or non-jury trial, the parties shall
`provide to the Court a bench notebook containing marked copies of all exhibits. The parties
`may contact the courtroom deputy clerk for the trial judge to determine whether this
`requirement may be waived.
`
`IV.
`
`MEDIATION
`
`Purpose – To minimize costly pretrial procedures in a case that may be equitably
`A.
`settled, and to secure the just, speedy, and inexpensive determination of this action, all parties
`shall participate in good faith in mediation. See Fed.R.Civ.P. 1; Fed.R.Civ.P. 16(a)(5); Local
`Rules 1.01(b), 9.01(b).
`
`The Mediator – This Court prefers to appoint the certified and approved mediator,
`B.
`if any, chosen by the parties in their Case Management Report. The mediator shall conduct
`the mediation conference in the conference room of the mediator’s law firm or office at a time
`and date selected by the mediator within the confines of this order.
`
`Last Date to Mediate – The parties shall complete the mediation conference on
`C.
`or before the mediation date set forth earlier in the above table. Despite Local Rule 9.05(d),
`neither the mediator nor the parties have authority to continue the mediation conference
`beyond this date except on express order of the Court. In any Track Three case, complex
`case, or case involving multiple parties, the mediator has the authority to conduct the mediation
`in a series of sessions and in groups of parties so that mediation is complete by the last date
`to mediate.
`
`-10-
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`Mediator’s Authority – The mediator shall have all powers and authority to
`D.
`conduct a mediation and to settle this case as are described in Chapter Nine of the Local
`Rules, except as limited by this order. The mediation shall continue until adjourned by the
`mediator. In order to coordinate the mediation conference, the mediator may set an
`abbreviated scheduling conference prior to the scheduled mediation. At such time, the
`mediator may designate one or more coordinating attorneys who shall be responsible for
`conferring with the mediator regarding the mediation conference. If necessary, the coordinating
`attorney may coordinate the rescheduling of a mediation conference within the time allowed
`in this order.
`
`E.
`
`General Rules Governing Mediation Conference
`
`Case Summaries – Not less than two days prior to the mediation
`1.
`conference, each party shall deliver to the mediator a written summary of the facts and issues
`of the case.
`
`Identification of Corporate Representative – As part of the written case
`2.
`summary, counsel for each corporate party shall state the name and general job description
`of the employee or agent who will attend and participate with full authority to settle on behalf
`of the corporate party.
`
`Attendance Requirements and Sanctions – Each attorney acting as lead
`3.
`trial counsel, and each party (and in the case of a corporate party, a corporate representative)
`with full authority to settle, shall attend and participate in the mediation conference. In the case
`of an insurance company, the term “full authority to settle” means authority to settle for the full
`value of the claim or policy limit. The Court will impose sanctions upon lead counsel and
`parties who do not attend and participate in good faith in the mediation conference.
`
`Personal Attendance Required – All counsel, parties, corporate
`4.
`representatives, and any other required claims professionals shall be present at the Mediation
`Conference with full authority to negotiate a settlement. The Court does not allow mediation
`by telephone or video conference. Personal attendance is required. See Local Rule 9.05(c).
`
`Authority to Declare Impasse – Participants shall be prepared to spend
`5.
`as much time as may be necessary to settle the case. No participant may force the early
`conclusion of a mediation because of travel plans or other engagements. Only the mediator
`may declare an impasse or end the mediation.
`
`Restrictions on Offers to Compromise – Evidence of an offer to
`6.
`compromise a claim is not admissible to prove liability for or invalidity of the claim or its amount.
`Fed. R. Evid. 408 (includes evidence of conduct or statements made in compromise
`negotiations); Local Rule 9.07(b). All discussion, representations and statements made at the
`mediation conference are privileged settlement negotiations. Except in a supplemental
`proceeding to enforce a settlement agreement, nothing related to the mediation conference
`shall be admitted at trial or be subject to discovery. Local Rule 9.07; Fed. R. Evid. 408. A
`
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`Case 8:16-cv-02641-VMC-JSS Document 23 Filed 10/28/16 Page 12 of 17 PageID 269
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`communication between a party and a mediator during a private caucus is also confidential,
`unless the party tells the mediator that it is not.
`
`Compensation of Mediators – Absent agreement of the parties and the
`F.
`mediator, mediators shall be compensated at a reasonable hourly rate provided by order of the
`Court after consideration of the amount in controversy, the nature of the dispute, the resources
`of the parties, the prevailing market rate for mediators in the applicable market, the skill and
`experience of the mediator, and other pertinent factors. Unless altered by order of the Court,
`the cost of the mediator's services shall be borne equally by the parties to the mediator
`conference.
`
`Settlement and Report of Mediator – A settlement agree