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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JAM CELLARS, INC.,

Plaintiff,

v.

O'NEILL BEVERAGES CO. LLC,

Defendant.

Case No. 17-cv-00690-WHO 

CIVIL PRETRIAL ORDER 

A jury trial has been set in this matter for September 4, 2018, beginning at 8:30 A.M. with an 

attorney conference and jury selection to follow thereafter. A Pretrial Conference has been set for 

August 10, 2018 at 9:00 A.M.

The following scheduling deadlines and hearing dates have been set:

Fact discovery cutoff: January 31, 2018

Expert disclosure: February 16, 2018 

Expert rebuttal: March 16, 2018 

Expert discovery cutoff: April 13, 2018 

Dispositive Motions heard by: June 6, 2018

1. Pretrial Conference and Statement

Not less than 28 days prior to the Pretrial Conference, counsel shall exchange (but not file 

or lodge) the papers described in Civil L.R. 16-10(b)(7), (8), (9) and (10), and any motions in 

limine.

At least 21 days before the Pretrial Conference, lead trial counsel shall meet and confer 

with respect to:

 Preparation and content of the joint pretrial conference statement;

 Resolution of any differences between the parties regarding the preparation and 

content of the joint pretrial conference statement and the preparation and exchange 
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of pretrial materials to be served and filed pursuant to this Order. To the extent 

such differences are not resolved, the parties will present the issues in the pretrial 

conference statement so that the judge may rule on the matter during the Pretrial 

Conference; and

 Settlement.

At least 14 days prior to the Pretrial Conference, the parties shall file a joint pretrial 

conference statement containing the following information: 

a. The Action

(i) Substance of the Action. A brief description of the substance of claims and 

defenses that remain to be decided.

(ii) Relief Prayed. A detailed statement of all the relief claimed, particularly 

itemizing all elements of damages claimed as well as witnesses, documents, or other evidentiary 

material to be presented concerning the amount of those damages. 

b. The Factual Basis of the Action

(i) Undisputed Facts. A plain and concise statement of all relevant facts not 

reasonably disputable, as well as which facts parties will stipulate for incorporation into the trial 

record without the necessity of supporting testimony or exhibits.

(ii) Disputed Factual Issues. A plain and concise statement of all disputed factual 

issues that remain to be decided.

(iii) Agreed Statement. A statement assessing whether all or part of the action

may be presented upon an agreed statement of facts.

(iv) Stipulations. A statement of stipulations requested or proposed for pretrial or 

trial purposes.

c. Disputed Legal Issues

(i) Points of Law. Without extended legal argument, a concise statement of each 

disputed point of law concerning liability or relief, citing supporting statutes and decisions setting 

forth briefly the nature of each party's contentions concerning each disputed point of law, 

including procedural and evidentiary issues.
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(ii) Proposed Conclusions of Law. If the case is to be tried without a jury, unless 

otherwise ordered, parties should briefly indicate objections to proposed conclusions of law.

d. Trial Preparation

(i) Witnesses to be Called. A list of all witnesses likely to be called at trial, other 

than solely for impeachment or rebuttal, together with a brief statement following each name 

describing the substance of the testimony to be given.

(ii) Exhibits, Schedules and Summaries. A list of all documents and other items to 

be offered as exhibits at the trial, other than solely for impeachment or rebuttal, with a brief 

statement following each describing its substance or purpose and the identity of the sponsoring 

witness. Unless otherwise ordered, parties will indicate their objections to the receipt in evidence 

of exhibits and materials lodged and that counsel have conferred respecting such objections.

(iii) Estimate of Trial Time. An estimate of the number of court days needed for

the presentation of each party’s case, indicating possible reductions in time through proposed 

stipulations, agreed statements of facts, or expedited means of presenting testimony and exhibits.

(iv) Use of Discovery Responses. Counsel shall cite possible presentation at trial 

of evidence, other than solely for impeachment or rebuttal, through use of excerpts from 

depositions, interrogatory answers, or responses to requests for admission. Counsel shall indicate 

any objections to use of these materials and that counsel has conferred respecting such objections.

(v) Further Discovery or Motions. A statement of all remaining discovery or 

motions, including motions in limine.

e. Trial Alternatives and Options

(i) Settlement Discussion. A statement summarizing the status of settlement 

negotiations and indicating whether further negotiations are likely to be productive.

(ii) Consent to Trial Before a Magistrate Judge. A statement whether reference of 

all or part of the action to a master or magistrate judge is feasible, including whether the parties 

consent to a court or jury trial before a magistrate judge, with appeal directly to the Ninth Circuit.

(iii) Amendments, Dismissals. A statement of requested or proposed amendments 

to pleadings or dismissals of parties' claims or defenses.
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(iv) Bifurcation, Separate Trial of Issues. A statement of whether bifurcation or a 

separate trial of specific issues is feasible and desired.

2. Witnesses

a. Jury Trials. The Pretrial Conference Statement shall include the witness list 

required in part by 1(d)(i) above. In addition, in the case of expert witnesses, the summary shall 

clearly state the expert’s theories and conclusions and the basis therefore and shall be 

accompanied by a curriculum vitae; if the expert has prepared a report in preparation for the 

testimony, a copy thereof shall be furnished to opposing counsel. Witnesses not included on the 

list may be excluded from testifying.

b. Non-Jury Trials. In non-jury cases, any party may serve and lodge with the Court a 

written narrative statement of the proposed direct testimony of each witness under that party’s 

control in lieu of a summary. Each statement shall be marked as an exhibit and shall be in a form 

suitable to be received into evidence.

3. Jury Instructions

a. Joint Set of Instructions. The parties shall jointly prepare a set of jury instructions, 

and shall file the proposed instructions at least fourteen days prior to the Pretrial Conference. The 

submission shall contain both agreed upon instructions (which shall be so noted), and contested 

instructions, all in the order in which they should be read to the jury. Where contested instructions 

are included, they should be annotated both with the proponent’s authority for seeking the 

instruction and the opponent’s reason for opposition. Counsel shall deliver to Chambers a copy of 

the joint submission on a CD/DVD in Word format. The label shall include the case number and a 

description of the documents.

b. Substance and Format of Instructions. The instructions shall cover all substantive 

issues and other points not covered by the Ninth Circuit Manual of Model Jury Instructions. Each 

requested instruction shall be typed in full on a separate page and citations to the authorities upon 

which the instruction is based shall be included. Instructions shall be brief, clear, written in plain 

English, and free of argument. Pattern or form instructions shall be revised to address the 

particular facts and issues of this case.
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c. Preliminary Statement and Instructions. If the parties wish to have a preliminary 

statement read to the jury, and/or preliminary instructions given to the jury, they shall jointly 

prepare and file the text of the proposed preliminary statement and/or preliminary instructions at 

least fourteen days prior to the Pretrial Conference.

d. Voir Dire and Verdict Forms. Each party shall file proposed questions for jury voir 

dire and a proposed Form of Verdict at least fourteen days prior to the Pretrial Conference.

4. Exhibits

a. Provide Copies of Exhibits to Other Parties. Each party shall provide every other 

party with one set of all proposed exhibits, charts, schedules, summaries, diagrams, and other 

similar documentary materials to be used in its case in chief at trial, together with a complete list 

of all such proposed exhibits. Voluminous exhibits shall be reduced by elimination of irrelevant 

portions or through the use of summaries. Each item shall be pre-marked with a trial exhibit 

sticker (“Trial Exhibit No.__”), not deposition exhibit label, and defendant’s exhibit numbers shall 

be sequenced to begin after plaintiff’s exhibit numbers. If there are numerous exhibits, they 

should be provided in three-ring binders with marked tab separators. All exhibits that have not 

been provided as required are subject to exclusion.

b. Stipulations re Admissibility. At least fourteen days prior to the Pretrial 

Conference, the parties shall make a good faith effort to stipulate to exhibits’ admissibility. If 

stipulation is not possible, the parties shall make every effort to stipulate to authenticity and 

foundation absent a legitimate (not tactical) objection.

c. Objections to Exhibits. In addition to the exhibit list, counsel shall confer with 

respect to any other objections to exhibits in advance of the Pretrial Conference. Each party shall 

file a statement briefly identifying each item objected to, the grounds for the objection, and the 

position of the offering party at least fourteen days prior to the date set for the Pretrial Conference.

d. Provide Copies of Exhibits to Court. One set of exhibits shall be provided to the 

Court in Chambers on the Friday prior to the trial date, in binders, marked, tabbed, and indexed in 

accordance with Local Rule 16-10(b)(7). Exhibits shall be identified as follows:
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Blocks of numbers shall be assigned to fit the needs of the case (e.g., Plaintiff has 1-100, 

Defendant has 101-200). The parties shall not mark duplicate exhibits (e.g., plaintiff and 

defendant shall not mark the same exhibit; only one copy of the exhibit shall be marked).

e. Witness Binders. If all of the exhibits in a case do not fit in one binder, then the 

parties shall prepare a witness binder for each witness that will testify regarding three or more 

exhibits.

f. Disposition of Exhibits after Trial. Upon the conclusion of the trial, each party 

shall retain its exhibits through the appellate process. It is each party’s responsibility to make 

arrangements with the Clerk of Court to file the record on appeal.

5. Motions In Limine

Any party wishing to have motions in limine heard prior to the commencement of trial 

must file them at least fourteen days prior to the date set for the Pretrial Conference. All motions 

in limine shall be contained in one document, limited to 25 pages pursuant to Civil L.R. 7-2(b), 

with each motion listed as a subheading. Opposition to the motions in limine shall be contained in 

one document, limited to 25 pages, with corresponding subheadings, and shall be filed at least

seven days prior to the Pretrial Conference. No reply papers will be considered. The motions will 

be heard at the Pretrial Conference or at such other time as the Court may direct. Nothing in this 

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

TRIAL EXHIBIT 100

CASE NO. _____________________

DATE ENTERED_________________

BY __________________________

DEPUTY CLERK
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provision prevents a party from noticing its motions in limine regularly for hearing on or prior to 

the final date for hearing dispositive motions. No leave to file under seal will be granted with 

respect to motions in limine.

6. Other Pretrial Matters

a. Status Conferences. Any party desiring to confer with the Court may, upon notice 

to all other parties, arrange a conference through the Courtroom Deputy, Jean Davis, at 415-522-

2077 or whocrd@cand.uscourts.gov.

b. Settlement Conferences. Parties wishing to arrange a settlement conference before 

another judge or magistrate judge may do so by contacting the Courtroom Deputy.

c. Daily Transcripts. Should a daily transcript and/or realtime reporting be desired, 

the parties shall make arrangements with Rick Duvall, Court Reporter Supervisor, at 415-522-

2079 or Richard_Duvall@cand.uscourts.gov, at least seven calendar days prior to the trial date.

7. Trial Matters

a. The normal trial schedule will be from 8:00 a.m. to 1:00 p.m. (or slightly longer to 

finish a witness) with two fifteen minute breaks. Trial is usually held from Monday through

Friday.

b. Ordinarily, the Court will set fixed time limits for each side at the Final Pretrial 

Conference.

c. Expert witnesses are limited to the scope of their expert reports on direct 

examination. F.R.C.P. 26(a)(2) and 37(c). 

d. Parties must meet and confer to exchange any visuals, graphics or exhibits to be 

used in opening statements. Unless otherwise agreed, the exchange must occur no later than 

Wednesday before the trial. Any objections not resolved must be filed in writing by Thursday 

before trial. The parties shall be available by telephone Friday before trial to discuss the issue 

raised with the Court.

e. The parties shall disclose the witnesses whom they will call at trial on any given 

day by at least 2:00 p.m. the court day before their testimony is expected. Failure to have a 

witness ready to proceed at trial will usually constitute resting.
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f. The Court takes a photograph of each witness prior to the witness’s testimony.

g. Other than a party or party representative, fact witnesses are excluded from the 

courtroom until they are called to testify, and may not attend in the gallery until their testimony is 

complete.

h. The Court does not typically allow bench conferences. If there are matters that 

need to be raised with the Court outside the presence of the jury, the parties should raise them in 

the morning before trial or during recess. With advance notice, the Court is usually available at 

7:30 a.m. to address such matters.

8. Miscellaneous

a. Please DO NOT call Chambers. If you need to contact the Courtroom Deputy, 

please call (415) 522-2077 and leave a message if the deputy is not available, or email

whocrd@cand.uscourts.gov.

b. Copies. Each document filed or lodged with the Court must be accompanied by a 

three-hole punched copy for use in the Judge’s chambers. In addition, one copy of the witness and 

exhibit lists should be furnished to the court reporter.

IT IS SO ORDERED.

Dated: May 17, 2017

________________________

William H. Orrick

United States District Judge