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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CALEB AVERY TBEAR,

Plaintiff,

v.

BARRY FORMAN,

Defendant.

Case No. 17-cv-00796-JSC 

PRETRIAL ORDER NO. 2

Following the Further Case Management Conference held on February 8, 2018, IT IS 

ORDERED THAT: 

I. CASE MANAGEMENT SCHEDULE

Plaintiff’s Deadline to Produce Corporate Documents1: February 12, 2018

Plaintiff’s Deadline to Produce Patent Documents: February 20, 2018

Fact Discovery Cut-Off: May 31, 2018

Expert Witness Disclosures: June 29, 2018

Rebuttal Expert Witness Disclosures: July 27, 2018

Expert Discovery Cutoff: August 31, 2018

Deadline for Hearing Dispositive Motions: November 1, 2018

II. TRIAL DATE

A. Jury trial will begin on January 7, 2019, at 8:30 a.m., in Courtroom F, 15th Floor, 

U.S. District Court, 450 Golden Gate, San Francisco, California.

B. The Court is expecting the length of the trial to not exceed 10 court days.

 

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The “Corporate Documents” and “Patent Documents” are those described in the parties’ recent 

discovery letter briefs, Docket Nos. 51 and 52.
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III. PRETRIAL CONFERENCE

A Final Pretrial Conference shall be held on December 13, 2018, at 2:00 p.m., in 

Courtroom F, 15th Floor. Lead trial counsel for each party shall attend.

A. At least seven days prior to date of the Final Pretrial Conference the parties shall do 

the following:

1. In lieu of preparing a Joint Pretrial Conference Statement, the parties shall 

meet and confer in person, and then prepare and file a jointly signed Proposed Final Pretrial Order 

that contains: (a) a brief description of the substance of claims and defenses which remain to be 

decided; (b) a statement of all relief sought; (c) all stipulated facts; (d) a joint exhibit list in 

numerical order, including a brief description of the exhibit and Bates numbers, a blank column 

for when it will be offered into evidence, a blank column for when it may be received into 

evidence, and a blank column for any limitations on its use; and (e) each party’s separate witness 

list for its case-in-chief witnesses (including those appearing by deposition), including, for all such 

witnesses (other than party plaintiffs or defendants), a short statement of the substance of his/her 

testimony and, separately, what, if any, non-cumulative testimony the witness will offer. For each 

witness, state an hour/minute time estimate for the direct examination (only). Items (d) and (e) 

should be submitted as appendices to the proposed order. The proposed order should also state 

which issues, if any, are for the Court to decide, rather than the jury. 

2. File a joint set of proposed instructions on substantive issues of law 

arranged in a logical sequence. If undisputed, an instruction shall be identified as “Stipulated 

Instruction No. ____ Re ___________,” with the blanks filled in as appropriate. If disputed, each 

version of the instruction shall be inserted together, back to back, in their logical place in the 

overall sequence. Each such disputed instruction shall be identified as, for example, “Disputed 

Instruction No. ____ Re ____________ Offered by _________________,” with the blanks filled 

in as appropriate. All disputed versions of the same basic instruction shall bear the same number. 

Any modifications to a form instruction must be plainly identified. If a party does not have a 

counter version and simply contends that no such instruction in any version should be given, then 

that party should so state (and explain why) on a separate page inserted in lieu of an alternate 
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version. With respect to form preliminary instructions, general instructions, or concluding 

instructions, please simply cite to the numbers of the requested instructions in the current edition 

of the Ninth Circuit Model Jury Instructions. Other than citing the numbers, the parties shall not 

include preliminary, general, or concluding instructions in the packet.

3. File a separate memorandum of law in support of each party’s disputed 

instructions, if any, organized by instruction number. 

4. File a joint set of proposed voir dire questions supplemented as necessary 

by separate requests. 

5. File trial briefs on any controlling issues of law. 

6. File proposed verdict forms, joint or separate.

7. File and serve any objections to exhibits.

8. File a joint simplified Statement of the Case to be read to the jury during 

voir dire as part of the proposed jury instructions. Unless the case is extremely complex, this 

statement should not exceed one page.

B. Any motions in limine shall be submitted as follows: at least twenty (20) calendar 

days before the conference, the moving party shall serve, but not file, the opening brief. At least 

ten (10) calendar days before the conference, the responding party shall serve the opposition. 

There will be no reply. When the oppositions are received, the moving party should collate the 

motion and the opposition together, back-to-back, and then file the paired sets at least seven (7) 

calendar days before the conference. Each motion should be presented in a separate memorandum 

and properly identified, for example, “Plaintiff’s Motion in Limine No. 1 to Exclude . . . .” Each 

party is limited to bringing five motions in limine. The parties are encouraged to stipulate where

possible, for example, as to the exclusion of witnesses from the courtroom. Each motion should 

address a single, separate topic, and contain no more than seven pages of briefing per side. 

C. Hard-copy courtesy copies of the above documents shall be delivered by NOON 

the day after filing. The Joint Proposed Final Pretrial Order, jury instructions, and verdict form 

shall be submitted via e-mail as attachments to JSCpo@cand.uscourts.gov. The Court requests that 

all hard-copy submissions be three-hole-punched.
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IV. PRETRIAL ARRANGEMENTS

A. Should a daily transcript and/or real-time reporting be desired, the parties shall 

make arrangements with Rick Duvall, Supervisor of the Court Reporting Services, at 

(415) 522-2079, at least ten (10) calendar days prior to the trial date.

B. During trial, counsel may wish to use overhead projectors, laser-disk/computer 

graphics, poster blow-ups, models, or specimens of devices. Equipment should be shared by all 

counsel to the maximum extent possible. The Court provides no equipment other than an easel. 

The United States Marshal requires a court order to allow equipment into the courthouse. For 

electronic equipment, parties should be prepared to maintain the equipment or have a technician 

handy at all times. The parties shall tape extension cords to the carpet for safety. The parties may 

work with the deputy clerk, Ada Means (415-522-2015), on all courtroom-layout issues.

SCHEDULING

Trial will be conducted from 8:30 a.m. to 2:30 or 3:00 p.m., depending on the availability 

of witnesses, Monday through Friday. Counsel must arrive by 8:15 a.m., or earlier as needed, for 

any matters to be heard out of the presence of the jury. The jury will be called at 8:30 a.m.

THE JURY

In civil cases, there are no alternate jurors and the jury is selected as follows: 

Eighteen to twenty jurors are called to fill the jury box and the row in front of the bar, and are 

given numbers (1 through 20). The remaining potential jurors will be seated in the public benches. 

Hardship excuses will usually be considered at this point. The Court will then have each juror 

orally answer a set of written questions (attached to this Order as Exhibit A) and will itself ask 

questions of those in the box and in the front of the bar. Counsel may then conduct a limited voir 

dire. Challenges for cause will then be addressed out of the presence of the potential jurors. The 

Court will consider whether to fill in the seats of the stricken jurors. If so, questions will be asked 

of the additional jurors and cause motions as to them will be considered. After a short recess, each 

side may exercise its allotment of peremptory challenges out of the presence of the potential 

jurors. The eight (or such other size as will constitute the jury) surviving the challenge process 

with the lowest numbers become the final jury. For example, if the plaintiff strikes 1, 5, and 7 and 
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the defendant strikes 2, 4, and 9, then 3, 6, 8, 10, 11, 12, 13, and 14 become the final jury. If more 

(or fewer) than eight jurors are to be seated, then the starting number will be adjusted. So too if 

more than a total of six peremptories are allowed. Once the jury selection is completed, the jurors’ 

names will be read again and they will be seated in the jury box and sworn. The Court may alter 

this procedure in its discretion and after consultation with the parties.

WITNESSES

At the close of each trial day, all counsel shall exchange a list of witnesses for the

next two full court days and the exhibits that will be used during direct examination (other than 

for impeachment of an adverse witness). Within 24 hours of such notice, all other counsel shall 

provide any objections to such exhibits and shall provide a list of all exhibits to be used with the 

same witness on cross-examination (other than for impeachment). The first notice shall be 

exchanged prior to the first day of trial. All such notices shall be provided in writing.

EXHIBITS

A. Prior to the Final Pretrial Conference, counsel must meet and confer in person to 

consider all exhibit numbers and objections and to eliminate duplicate exhibits and confusion over 

the precise exhibit.

B. Use numbers only, not letters, for exhibits, preferably the same numbers as were 

used in depositions. Blocks of numbers should be assigned to fit the need of the case (e.g., 

Plaintiff has 1 to 100, Defendant A has 101 to 200, Defendant B has 201 to 300, etc.). A single 

exhibit should be marked only once. If the plaintiff has marked an exhibit, then the defendant 

should not re-mark the exact document with another number. Different versions of the same 

document, e.g., a copy with additional handwriting, must be treated as different exhibits with 

different numbers. To avoid any party claiming “ownership” of an exhibit, all exhibits shall be 

marked and referred to as “Trial Exhibit No. _____,” not as “Plaintiff’s Exhibit” or “Defendant’s 

Exhibit.” 
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C. The exhibit tag shall be in the following form:

Counsel preferably will make the tag up in a color that will stand out (yet still allow for

photocopying), but that is not essential. Place the tag on or near the lower right-hand corner or, if a 

photograph, on the back. Counsel should fill in the tag but leave the last two spaces blank. The 

parties must jointly prepare a single set of all trial exhibits that will be the official record set to be 

used with the witnesses and on appeal. Each exhibit must be tagged, three-hole-punched, separated 

with a label divider identifying the exhibit number, and placed in 3-ring binders. Spine labels 

should indicate the numbers of the exhibits that are in the binders. Each set of exhibit binders 

should be marked as “Original.” Deposit the exhibits with the deputy clerk seven (7) days before 

the Pretrial Conference.

D. Counsel must consult with each other and with the deputy clerk at the end of each 

trial day and compare notes as to which exhibits are in evidence and any limitations thereon. If 

there are any differences, counsel should bring them promptly to the Court’s attention.

E. In addition to the official record exhibits, three sets of bench binders containing

copies of the exhibits must be provided to the Court seven (7) days before the Pretrial Conference, 

one should be marked as “Chambers Copies”, and the other two as “Clerk’s Copies.” Each exhibit 

must be separated with a label divider identifying the exhibit number. (An exhibit tag is 

unnecessary for the bench set.) Spine labels should indicate the numbers of the exhibits that are in 

the binders. 

F. 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.

G. Exhibit notebooks for the jury will not be permitted without prior permission from 

the Court. Publication must be by poster blow-up, overhead projection, or such other method as is 

allowed in the circumstances. It is permissible to highlight, circle or underscore in the 

enlargements as long as it is clear that it was not on the original.

CHARGING CONFERENCE

As the trial progresses and the evidence is heard, the Court will fashion a comprehensive 

set of jury instructions to cover all issues actually being tried. Prior to the close of the evidence, 

the Court will provide a draft final charge to the parties. After a reasonable period for review, one 

or more charging conferences will be held at which each party may object to any passage, ask for 

modifications, or ask for additions. Any instruction request must be renewed specifically at the 

conference or it will be deemed waived, whether or not it was requested prior to trial. If, however, 

a party still wishes to request an omitted instruction after reviewing the Court’s draft, then it must 

affirmatively re-request it at the charging conference in order to give the Court a fair opportunity 

to correct any error. Otherwise, as stated, the request will be deemed abandoned or waived.

IT IS SO ORDERED.

Dated: February 9, 2018

______________________________________

JACQUELINE SCOTT CORLEY

United States Magistrate Judge
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EXHIBIT A

BACKGROUND

HAVE EACH OF THE 20 PROSPECTIVE JURORS ANSWER ALOUD THE 

GENERAL BACKGROUND QUESTIONS ON THE SHEET THAT HAS BEEN HANDED 

OUT.

1. Please state your name:

2. Please state the city in which you live:

a. How long have you lived there?

b. Where else have you lived in the past 5 years?

3. What is your current occupation?

a. How long have you been so employed?

b. What are your previous occupations, if any?

c. Have you or any member of your family been employed by a law firm?

4. Please give us the following information about your family:

a. Are you married?

1. If so, what is your spouse’s current occupation and by whom is your

spouse employed?

b. Do you have any children?

If so:

1. How many?

2. What ages?

3. What are their occupations, if any?

5. Are there any other adults living in your household?

 

a. If so, how are they related to you, and what is their age and occupation?