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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

FEDERAL TRADE COMMISSION,

Plaintiff,

v.

D-LINK SYSTEMS, INC.,

Defendant.

Case No.17-cv-00039-JD 

FINAL PRETRIAL ORDER

The bench trial will be conducted under the terms of this order on January 14, 2019, or at a 

later date set by the Court in response to the government shutdown. 

I. SCHEDULE 

1. The trial days are Monday through Thursday. The Court reserves Friday for other 

matters. 

2. Trial will be held from 9:00 a.m. to 2:00 p.m. each trial day, with two 15-minute 

breaks and no lunch recess. 

3. Each side will have a total of 17.5 hours for all in-court proceedings, including

opening remarks of up to 30 minutes per side. The Court will take closing 

arguments off the clock. 

4. No motions may be filed during trial without prior approval by the Court. 

5. After both sides rest, the Court will set a date for final argument and the submission 

of proposed findings of fact and conclusions of law. The parties should assume 

that there will be one week between close of evidence and final argument. 

II. TRIAL PROCEDURES

1. Chambers copies. The Court reminds the parties that they must submit chambers 

copies as directed by the Court’s Standing Orders for Civil Cases and Jury Trials. 

In particular, the parties should coordinate and submit joint copies of exhibits and 

any other materials. 

2. Deposition designations. The parties should complete their designations of 

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United States District Court

Northern District of California

deposition testimony before trial. The Court will take as evidence deposition 

testimony that is presented during trial. Testimony not presented in court may not 

be used by either party in post-trial proceedings, briefs or arguments. 

3. Oversize exhibits. The Court will accept e-copies of admitted oversize exhibits in 

lieu of printed versions. Oversize exhibits should be accompanied by a printed

chart or summary highlighting the portions of the exhibit the sponsoring party is 

relying on. 

4. Witnesses. All witnesses are excluded from hearing testimony by any means 

until they are excused from the stand. FRE 615. By joint agreement, each side 

will disclose the next day’s witnesses and exhibits by 5:00 p.m. the court day 

before. That means Friday for Monday testimony. For each witness called to 

testify, the examining party should have a separate binder of testimony exhibits 

ready for the Court. 

5. Exchange of opening demonstratives. The parties should exchange any 

demonstratives for opening statements by 5:00 p.m. on the court day before trial. 

6. Computer set-up: The parties should contact the Courtroom Deputy, Lisa Clark, 

to arrange access to the courtroom for computer set-up. 

III. MOTIONS IN LIMINE

1. FTC No. 1: GRANTED. D-Link failed to disclose Kuang-Chun Hung in its 

initial disclosures or amended disclosures, and did not provide a good reason or 

justification for this omission. The FTC has established prejudice from the 

untimely identification of Hung. D-Link’s contention that the FTC knew about 

Hung from other sources is no excuse for D-Link’s default. Ollier v. Sweetwater 

Union High Sch. Dist., 768 F.3d 843, 862-63 (9th Cir. 2014). The failure to 

disclose also violated the Court’s Standing Order for Civil Cases. Hung is 

excluded as a witness. Fed. R. Civ. P. 26, 37(c). 

2. FTC No. 2: TENTATIVELY GRANTED. D-Link won dismissal of its 

Taiwanese parent corporation, D-Link Corporation, based on its representations 

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Northern District of California

that the parent had nothing to do with D-Link Systems, Inc.’s statements to 

consumers or its security practices. The Court will not allow an end run around 

those representations at trial. A final ruling on admissibility is deferred pending a 

proffer at trial by D-Link about the relevance and admissibility of any materials it 

intends to use from the parent corporation. 

3. FTC No. 3: GRANTED. All foreign language documents must have a certified 

translation into English as a condition of admissibility. Foreign language 

documents without a translation will not be admitted. To the extent a party intends 

to use documents with portions in English and a foreign language, the English parts 

can be used and the foreign language parts should be completely redacted if they 

are not accompanied by a translation. 

4. FTC No. 4: DEFERRED pending proof at trial. 

5. D-Link No. 1: GRANTED as warranted for specific evidence at trial. 

6. D-Link No. 2: GRANTED as warranted for specific evidence at trial. 

7. D-Link No. 3: GRANTED as warranted for specific evidence at trial. 

IV. OTHER ISSUES

1. Interpreter. At D-Link’s request, the Court will request a Mandarin language 

interpreter to be available during trial.

2. Newer lawyers. The vitality of our trial courts depends on training the next 

generation of trial counsel. The Court encourages the parties to have lawyers in 

their first five years of practice examine a witness or handle some other in-court 

proceeding that has a speaking role. 

IT IS SO ORDERED.

Dated: January 4, 2019

JAMES DONATO

United States District Judge

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