UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF ARIZONA 

 _________________ 

Cleopatria Martinez, ) 

 ) 

 Plaintiff, ) CV-15-1759-PHX-NVW 

 ) 

 vs. ) Phoenix, Arizona 

 ) January 15, 2016 

Maricopa County Community ) 1:37 p.m. 

College District, et al., ) 

 ) 

 Defendants. ) 

 ) 

______________________________) 

 

BEFORE: THE HONORABLE NEIL V. WAKE, JUDGE 

REPORTER'S TRANSCRIPT OF PROCEEDINGS 

RULE 16 SCHEDULING CONFERENCE

Official Court Reporter: 

Linda Schroeder, RDR, CRR 

Sandra Day O'Connor U.S. Courthouse, Suite 312 

401 West Washington Street, Spc. 32 

Phoenix, Arizona 85003-2151 

(602) 322-7249 

Proceedings Reported by Stenographic Court Reporter

Transcript Prepared by Computer-Aided Transcription

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A P P E A R A N C E S 

For the Plaintiff: 

 Schleier Law Offices 

 By: TOD F. SCHLEIER, ESQ. 

 3101 North Central Avenue, Suite 1090 

 Phoenix, AZ 85012 

 Law Offices of Kevin Koelbel 

 By: KEVIN KOELBEL, ESQ. 

 7303 West Boston Street 

 Chandler, AZ 85226 

For the Defendants: 

 Fisher & Phillips 

 By: PAVNEET SINGH UPPAL, ESQ. 

 201 East Washington Street, Suite 1450 

 Phoenix, AZ 85004 

 

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THE CLERK: This is civil case 2015-1759, Cleopatria

Martinez versus Maricopa County Community College District,

et al. This is the time set for a scheduling conference.

Counsel, please announce for the record.

MR. SCHLEIER: Good afternoon, Your Honor. Tod

Schleier and Kevin Koelbel for the plaintiff.

MR. UPPAL: Your Honor, good afternoon. Pavneet Singh

Uppal of Fisher & Phillips on behalf of MCCD.

THE COURT: All right. Good afternoon, counsel.

Mr. Uppal, I haven't seen you in a long time.

MR. UPPAL: Yes, Your Honor.

THE COURT: I assume you're still making trouble,

right?

MR. UPPAL: Not too much, Your Honor.

THE COURT: But that's what Mr. Schleier does. I

would expect no less from you. So it's good to see you.

All right. The initial disclosures have been done,

and no one contemplates any amended pleadings or additional

parties, correct?

MR. SCHLEIER: That's correct, Your Honor.

MR. UPPAL: Yes, Your Honor.

THE COURT: So I'll just set February 12 as the

deadline for any motions to amend pleadings. And as you know,

under Rule 15, if circumstances justify, you can always file a

motion. But you'll have to meet the increasing burdens showing

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that it was timely and not prejudicial in an unfair way.

Mr. Schleier, are there any state law claims?

MR. SCHLEIER: No, Your Honor. Just the federal 1983

claims.

THE COURT: I'm just not familiar with the community

college district employment system. Do they have any state

tenure rights or discipline rights that would give rise to any

judicial review?

MR. SCHLEIER: The plaintiff was a tenure -- or was

and is a tenured mathematics professor and has been, I believe,

since 1985.

THE COURT: So there's no challenge that under state

law, this action would have been within the authority -- is

it the chancellor who does this?

MR. SCHLEIER: That's correct.

THE COURT: All right. All right. Let's talk -- I

see the plaintiff has submitted -- you've submitted your

written discovery requests. And I assume all of those

documents will be exchanged very quickly. Let's talk about

what other discovery is contemplated. So Mr. Schleier.

MR. SCHLEIER: Yes. We expect of course that the

parties will be deposed. We anticipate that certain members

within the mathematics department will also be deposed

concerning the reinstitution of the directive that was issued

in 2010. And we have, I believe, two experts who previously

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testified at the hearing. And subpoenas have been issued to

them for their files. And I anticipate they'll be --

THE COURT: Let me go back to that prior litigation.

How would that prior litigation bear on this case?

MR. SCHLEIER: Well, I wouldn't use the word the

litigation. There was a Hearing Committee --

THE COURT: Oh, I thought there was --

MR. SCHLEIER: No. I don't believe the prior

litigation has anything to do with this. And ultimately at the

appropriate time we'll file appropriate motions on that.

THE COURT: Well, the Hearing Committee issued written

conclusions, correct?

MR. SCHLEIER: Findings of fact and conclusions of

law.

THE COURT: Was there any other record made of their

proceedings?

MR. SCHLEIER: Other than that and the trans -- the

underlying transcript.

THE COURT: That's what I'm asking. Was there a

transcript?

MR. SCHLEIER: Yes. There's about 300 pages.

THE COURT: So the entire record of what was before

the Committee would be available, correct?

MR. SCHLEIER: It is.

THE COURT: Now, let's -- let me explore in more

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detail the depositions you have in mind. Obviously -- Who

would you want to depose from the defendant?

MR. SCHLEIER: I need to go back to my complaint, Your

Honor, but certainly the --

THE COURT: And the reason I'm asking these questions,

I want to have a sense of -- that we have an appropriate

magnitude of discovery and from that judge how much time it

should fairly take.

MR. SCHLEIER: Well, certainly the chancellor. It is

conceivable that a member or two of the Committee who made

their findings might be deposed, and I underscore might.

President Solley who originally issued the directive may be

deposed.

THE COURT: Which directive?

MR. SCHLEIER: The directive back in 2010 dealing with

the copying and what Professor Martinez could and could not do

as far as copying, use of materials.

THE COURT: Is there any dispute about what that

directive was?

MR. SCHLEIER: No, no.

THE COURT: I'm not trying to quarrel with you. I'm

just trying to understand why do you need to depose anybody

about that if there's no dispute about what the directive was?

MR. SCHLEIER: Well, there may not be, but it's now in

force and effect at this time. And we would probably want to

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find the factual basis upon which that directive was issued.

In other words, with whom did she consult, et cetera? And we

may find that out from the expert when we get his file.

THE COURT: That sounds like information that would be

very efficiently obtained through interrogatories. You might

still want to follow up, but if it's just finding out basics,

there's much cheaper ways to do it than depositions. I'm just

thinking off the top of my head. So who else?

MR. SCHLEIER: I am looking for -- Could I consult

with --

THE COURT: Certainly.

MR. SCHLEIER: We'll want to depose the interim

president who reissued the directive in August, 2015.

THE COURT: That was after these events?

MR. SCHLEIER: Yes, after the suspension and once

Professor Martinez began the fall semester last year.

THE COURT: What would you be looking to obtain from

the --

MR. SCHLEIER: Just the reasons at this point, after

the Hearing Committee had determined that the district had not

satisfied its burden of proof of violation of copyright laws,

why, again, was this directive then issued, issues like that.

THE COURT: Well, again, just reading the case report,

it appears that Ms. Martinez was given an express directive,

and then she continued to by doing offsite copying, doing

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exactly what she had been told explicitly not to do. I'm

wondering how it would matter whether, in terms of ultimate

metaphysical truth, whether it was a copyright violation or not

if in fact she had been told explicitly not to do it because

the district had advice of counsel that it was a serious risk.

How would it matter what the truth is? Not truth. I

don't mean truth. I mean the ultimate legal correctness of the

fear of copyright violation. If she had been -- Seems like

there's no issue of fairness or warning. She got all that.

And she continued to do it.

So I'm just -- I'm very cautious about what I read in

these reports. I don't assume anything to be true. But I'm

just trying to think through what, you know, what's appropriate

discovery.

MR. SCHLEIER: I mean, to summarize, I think from the

plaintiff, there may be six, possibly eight depositions. I

think certainly I would anticipate we would not exceed the ten

deposition limit. That's my thought.

THE COURT: As you know, under the rules, I am charged

with managing discovery to keep it proportionate to the

dispute. And so there's no right to ten depositions. I just,

by having this discussion, I just want to flesh out what's

appropriate. And so -- all right -- eight to ten, but it's --

What I'm hearing is that's not really focused yet. Those are

just some initial thoughts.

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So, Mr. Uppal, what do you have in mind for discovery,

appropriate discovery?

MR. UPPAL: Your Honor, I think I know where you're

going with this, and of course Mr. Schleier and Mr. Koelbel and

I are all aware that the scope of discovery has to be

proportionate to the dispute. But this is my second time at

the rodeo with Professor Martinez. The prior litigation is not

really only the committee hearing but her prior suit in 2011.

And I remember being in front of Judge Campbell in the

prior suit which he dismissed with prejudice, and I find myself

repeating the same thing; that in terms of proportionality,

from my perspective as MCCD's counsel, the dispute is not just

the employment issue that's before you right now. The dispute

is that this individual has, according to our outside copyright

expert, engaged in copyright violations. And she is under

restrictions currently that she is chafing under that she wants

lifted.

We have no trust in her that she will in fact comply

with the copyright rules as they exist, as they apply to all

entities, and we have been advised by our counsel -- the

privilege on this is waived in terms of advice of counsel, the

copyright counsel -- that the things that she is doing could

expose, or has done in the past, could expose the district to

monetary liability for copyright infringement that far exceeds

anything in the employment realm.

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So that's my perspective, that what's at issue here is

not just the employment issue, but we cannot tolerate, unless

she wins in court and is reduced to a judgment, a situation

that would allow her to return to continue doing the things

that she was doing before, putting the district at risk for a

copyright infringement judgment against it.

THE COURT: Well, I thought from the case management

report, this was just a money damage case for the past

suspension. Is there more to it than that?

MR. SCHLEIER: Well, only to the extent that the

ultimate finding by the Hearing Committee, whether that will be

entitled to collateral estoppel effect. The Committee did

determine that the district did not satisfy or meet its burden

of proof of copyright violations after hearing both experts in

that case.

MR. UPPAL: But that was --

THE COURT: How would that be collateral estoppel?

That's just a committee within the district. That's not

anywhere close to normal notions of collateral estoppel, which

happen to be from a court adjudication, and sometimes it can

arise from an administrative adjudication where there's

sufficient legal basis to give that decision some degree of

finality, although that's an exception, not the rule. This is

just a committee in the district.

MR. SCHLEIER: Yes. But at least based upon some of

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the legal research that I have done, both parties were given

the opportunity to cross-examine. They were represented by

counsel. There was no appeal of this that was possible. And I

believe under at least some Ninth Circuit law that I have read,

that can be given collateral estoppel effect.

MR. UPPAL: Your Honor, if I may speak to that?

THE COURT: You may.

MR. UPPAL: There is a collateral estoppel issue, just

not the one that my opposing counsel is outlining.

The Hearing Committee is not collateral estoppel at

all -- of course we'll brief all this -- because the

standard -- the burden of proof is flipped on that. There is a

collateral estoppel issue in that the issue of Ms. Martinez's

copyright infringement were front and center in her prior

federal court case. It was fully briefed.

THE COURT: I thought -- I'm sorry. I didn't go back

and reread your complaint, but I read the case report. And I

did not understand that from the case report. I thought the

case -- The case report refers to prior litigation. But I

didn't have any understanding that it had to do with these

copyright issues. Tell me what it did.

MR. UPPAL: There was a prior case that was filed by

Ms. Martinez in which she also alleged due process claims as

well as discrimination claims. And one of the defenses that

was front and center presented by myself, because I was the

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defense counsel, MCCD explained to the Court in her prior

federal litigation that the disciplinary measures that had been

imposed were as a direct result of her copyright infringement.

And an expert report was submitted and exchanged as a part of

that prior litigation. When I say litigation, I'm not talking

about the hearing. I'm talking about a federal court case.

THE COURT: That was Judge Bolton?

MR. UPPAL: I thought it was Judge Campbell, but I may

be mistaken.

MR. SCHLEIER: It was Judge Campbell, I believe.

THE COURT: All right.

MR. UPPAL: So, Your Honor, the end result of that is

after that issue being raised and focused and presented to the

Court and an expert report being exchanged where the plaintiff

did not submit a counter-report, she dismissed her case with

prejudice. Since that issue was raised before Judge Campbell

not as a collateral issue, as the core defense, the collateral

estoppel is she can't raise it again. She can't contest it, at

least in my view.

And as I think Your Honor is seeing now, this is going

to be a somewhat more complicated case than just appears on the

face of the pleadings.

THE COURT: So she dismissed it with prejudice?

MR. UPPAL: Yes, Your Honor.

So at some point -- we're not deep enough into this --

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we will be, I anticipate, presenting a motion to the Court that

with respect to the issue of actions that she may have engaged

in with respect to copyright infringement, no matter what the

Hearing Committee found, because that Committee has a different

standard of proof, the fact that this was a core defense in the

first litigation and she dismissed it without prejudice, she

can't now contest it again before you.

Also, Your Honor's absolutely right. Irrespective of

collateral estoppel, we don't actually have to prove copyright

infringement in fact. What's at stake is the motivation. And

we have advice of counsel, again, on a defense that we've put

forward and waived the privilege on where the attorney has

advised the district that what she has done in the past poses

copyright infringement claims and subjects the district to very

substantial potential liability.

That's the whole ball of wax essentially. That's why

she has been subjected in large parts to the disciplinary

measures that she is chafing under and contesting in this

lawsuit.

THE COURT: You know, I also want to -- I don't think

it's raised, but it says that she was requiring students to buy

materials from her. And, boy, I'm not familiar with that. Is

that an issue at all or --

MR. UPPAL: Your Honor, it is an issue in that there

is a rule at MCCD, a published policy that says that

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instructors cannot, without prior written approval, sell

materials to their students. And the reason -- rationale for

the rule is essentially that students may feel compelled to buy

a particular instructor's textbook from which they are, you

know, getting monetary remuneration, and that's just not

permitted without written approval.

A, she violated the rule, but, B, she was instructed

to issue refunds to everyone whom she sold those materials to,

and years later she still hasn't done it. And as a result the

Hearing Committee that attorney Schleier keeps referring to

found that she had in fact committed willful insubordination.

THE COURT: So, Mr. Schleier, what -- I don't have the

Committee's report, but what was their basis, stated basis for

exonerating Ms. Martinez? That the district hadn't proven a

case of --

MR. SCHLEIER: Had not met its burden of proof nor

that she had violated the rules dealing with cash handling.

And I believe there were two additional findings. And, yes,

they did find that she was insubordinate by ignoring a

directive concerning the reimbursement of students for copying

charges.

I think it was $11 --

THE COURT: What was the finding with respect to

copyright violation? What did they find?

MR. SCHLEIER: That the district had not satisfied its

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burden of proof concerning copyright violations.

THE COURT: Proof of what? Proof of what?

MR. SCHLEIER: That in fact that she did, and it did

not --

THE COURT: That it was a copyright violation?

MR. SCHLEIER: That they did not meet their burden of

proof that she had violated the copyright laws or Fair Use

Doctrine.

THE COURT: So it's grounded in an ultimate judgment

about copyright law?

MR. SCHLEIER: Yes, it was, after hearing the two

experts.

THE COURT: And that was their reason for exonerating

her?

MR. SCHLEIER: That was the reason why they made their

determination she should not be terminated, which was

Chancellor Glasper's recommendation.

THE COURT: Was there -- Again, I'm talking about the

Committee's stated findings and recommendations. Was there any

other basis for exonerating her other than their conclusion

that this was not a copyright violation?

MR. SCHLEIER: Nor did she violate cash handling

regulations of the district.

THE COURT: What was the issue there? I thought this

was allegedly inappropriately requiring students to buy

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materials from her. That doesn't sound like cash handling to

me.

MR. SCHLEIER: No. It was basically reimbursing her

for copying charges for lecture notes that she had distributed.

That's what it was. We're not --

THE COURT: The students were required to reimburse

her --

MR. SCHLEIER: For copying charges.

THE COURT: Well, I guess that will depend on what

that regulation, how it reads, and I don't have that.

MR. SCHLEIER: And --

THE COURT: Go ahead.

MR. SCHLEIER: We're focusing so much on this

copyright issue, but the true thrust of what we're arguing is

denial of due process here when Professor Martinez was

suspended for 15 months, which basically, at least in my 40

years of practicing, that's virtually unheard of. And under

Ninth Circuit law it's basically the same thing as a

termination.

THE COURT: But I'm understanding the issue to be a

process issue, a procedure issue.

MR. SCHLEIER: That's correct.

THE COURT: And what was the fatal defect in the

procedure that was followed?

MR. SCHLEIER: That the Committee basically did not

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recommend termination, that Committee findings should have been

given to the Governing Board for final review. Chancellor

Glasper decided he was not going to do that, and he then

decided to suspend -- He issued new charges, which were

basically almost identical to the old charges that were heard

by the Hearing Committee. And then he basically suspended her

for 15 months. And she did not get a pre- or a post-suspension

hearing, which the Ninth Circuit has said is required.

THE COURT: I'm sorry. I didn't -- It was a new

charge as opposed to going forward on the original charge?

MR. SCHLEIER: After the Hearing Committee in

February, I believe it was, of 2014, Chancellor Glasper issued

new charges, which were basically identical --

THE COURT: Were the old charges terminated?

MR. SCHLEIER: Well, the Hearing Committee heard them

and made a decision on those old charges. And basically the

recommendation of Chancellor Glasper was termination, and the

Committee said no.

THE COURT: I know. But that recommendation of the

Committee, that's not the end of the procedure, is it?

MR. SCHLEIER: Well, Chancellor Glasper was supposed

to give that -- the findings of fact and conclusions of law to

the Governing Board for ultimate review. He did not --

THE COURT: That's the Board, the District Board?

MR. SCHLEIER: The District Board, yes. And

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ultimately decided to suspend her for 15 months.

THE COURT: I'm trying to get clear was there two

separate sets of charges one after another, or was there one

set of charges that continued through process?

MR. UPPAL: If I might attempt, Your Honor?

THE COURT: You may.

MR. UPPAL: So initially the set of charges were

seeking the professor's termination. The Hearing Committee

came back with a recommendation against termination. The

chancellor has the option to adopt that recommendation or

substitute his own.

What the chancellor did was upon receiving the Hearing

Committee's recommendation against termination, he accepted

that and instead recommended her suspension.

On that, contrary to Mr. Schleier's characterization,

there was a pre-termination hearing with the vice chancellor of

human resources. And in fact the professor and her attorney,

her previous attorney, Stephen Montoya, presented her full case

to the entire Governing Board contesting the suspension.

So what this case is really about is the plaintiff's

attempt to elevate form over substance. They got all the

process that was due, both pre-suspension and post-suspension.

Their argument really boils down to a suspension for 14 months

is the same thing as a termination, so the entire hearing

process, including the Hearing Committee, should have been

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reconstituted now to consider the suspension.

A, the internal due process rules don't require that,

and, two, Supreme Court precedent doesn't require that.

Due process in this, both procedural and substantive,

is informal. Supreme Court has repeatedly said that.

And she got a hearing on the suspension with the vice

chancellor, and she got to plead her entire case before the

Governing Board. And her attorney Stephen Montoya, as opposing

counsel well knows, sent all the charges, all the

recommendations, and everything to the Governing Board. She

just couldn't win her case before the Governing Board. That's

her main complaint.

THE COURT: Well, no one ever accuses Mr. Montoya of

being less than diligent.

So, Mr. Schleier, I'm asking a question, not making an

assertion. But it seems like if the chancellor had taken the

original recommendation, say, I think otherwise, and I'm going

to terminate her, it doesn't seem like there would be any due

process violation there. She got her process, got a

recommendation one way. The decision maker went the other way.

They could have done that, couldn't they?

In terms of federal due process --

MR. SCHLEIER: It would have had to have gone to the

Governing Board. That would have been the last step in the

process.

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THE COURT: Is that right, Mr. Uppal?

MR. UPPAL: If the -- Yes. If the chancellor had

taken the position that termination, permanent separation, was

in fact what was called for, then he would have presented 

that -- his own recommendation of termination as well as the

Hearing Committee's conclusions and findings of fact to the

Governing Board. But what I'm saying to Your Honor is that

happened anyway.

THE COURT: Well, what are -- what's the criteria for

what matters have to be approved by the Board and what matters

can be determined with finality by the chancellor? And I

would -- I think I'm hearing you say that termination requires

Board approval. Does everything require Board approval?

MR. UPPAL: No. No. A suspension does not require

the approval of the Board, but in this case the suspension was

approved by the Board.

THE COURT: All right.

MR. UPPAL: Because this exact argument that they're

making here Mr. Montoya made in open session to the Governing

Board saying, hey, this 14-month suspension is the same as a

termination, you can't do this, or she's not -- you know, the

circumstances don't warrant it. The Governing Board just

didn't buy the argument.

THE COURT: All right. I'm having this extended

discussion because I'm trying to get a handle on what's

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appropriate discovery.

Frankly, this looks like a case that could be reduced

to a stipulated statement of facts. It doesn't seem like

there's any dispute about what actually happened. Have you all

thought about that?

MR. SCHLEIER: We have not discussed that.

THE COURT: Let me throw it out. You can take eight

depositions or you can sit down across the table and talk and

find out what's really in dispute. And it would seem,

Mr. Uppal, you can -- you've already given them all the

records, correct, or you're going to?

MR. UPPAL: Yes, Your Honor.

THE COURT: Okay. So most of this is going to be

readily ascertainable from the record. I'm just suggesting to

you I'm not going to set any limits right now. I'm not

disposed to it. But I'm suggesting to you that you all come at

it that way because it looks like most of the dispute here is

going to be legal points, not about what happened.

So, anyway, I was asking you, Mr. Uppal, what's your

view on discovery?

MR. UPPAL: Your Honor, I will not be taking nearly as

many depositions or I should say will not be initiating nearly

as many depositions as plaintiff's counsel, but I have before

me their initial disclosure that lists 43 witnesses and 5,600

documents. This is not a criticism. It's initial disclosure.

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I realize some of these are going to go by the wayside. But

having been through this drill previously and knowing how

strong the feelings are on both sides, I did talk with my

colleague, Mr. Schleier, known him for many years, get along

with him really well, and because of what's at stake, from my

standpoint, as I previously explained, I would ask Your Honor

to approve something close to the one-year discovery cutoff

that we have requested, because I understand your point that

there are -- that the legal issues may predominate or the

factual issues. But I've been down this road with this

plaintiff before, and I see what's coming in terms of

experts --

THE COURT: What's coming?

MR. UPPAL: Your Honor, I think every single point on

this case, if it tracks the previous case, which I think will

be in fact what happens, is going to be disputed. I think that

the legal issues will be informed by the facts. And I do see

the other side taking the amount of depositions that they have

outlined.

THE COURT: All right. Now, with respect to experts,

you want to put on a copyright case? Is that what you want the

experts for?

MR. SCHLEIER: It may be possible, yes. And that's

why they have been identified and we put in the expert

disclosure deadlines.

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THE COURT: Is there any other expert testimony

contemplated?

MR. SCHLEIER: I don't believe so. I don't believe we

need an economic expert because the damages on the suspension

are basically liquidated.

THE COURT: I would think so.

MR. SCHLEIER: Yeah. It's 15 months approximately.

THE COURT: Well, let me throw this out. Just reading

this report and now having a better understanding, I want to

raise the question of whether there's any room here for

testimony about copyright law, first of all. It's a point of

law. For better or worse, you're charged with what I think.

We don't bring in expert witnesses to tell us what the law is.

And, secondly, perhaps more importantly, it's not at

all clear to me that it matters what the answer is to the

copyright issue. And if the advice of counsel is that there's

a serious risk here and the district had a policy and a clear

directive, it doesn't seem to me to matter whether -- how one

would resolve the question of copyright law.

So if that's the case, it would seem that a lot of

expense could be avoided. It wouldn't seem to make sense to

spend all the time to work up experts and take their

depositions if in the end it doesn't matter which expert it is,

as I said, right, in terms of ultimate metaphysical truth.

So that's looking like one area that merits close

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scrutiny as to whether it's worth the substantial expense that

would be involved.

MR. UPPAL: Your Honor, I completely agree with that.

I just want to explain why I'm going to have an expert. If

this case survives summary judgment, if, I want the jury to

understand why these disciplinary measures, which in a vacuum

may seem harsh or the plaintiff will argue were unjustified or

shouldn't continue -- they filed a dec action after all -- were

not harsh, were entirely appropriate, and need to continue.

And the only way I can really do that is by presenting

the testimony regarding the advice of counsel that we received

as to which we've alleged an affirmative defense and waived the

privilege. That's -- That's why I'm presenting it. I agree

that at the end of the day, whether in point of fact she has

committed copyright infringement is not the issue.

THE COURT: Well, all right. I think I'm not going to

right at this time limit you on this. I urge you to sit down

and see if you can focus your real areas of dispute, you know,

right now. I'm skeptical that it would ever be submitted to

the jury. You may get an instruction from me. But on the

other hand I can understand why both sides don't want to be --

find themselves in a situation where they might need that

testimony if they don't have it.

And I guess if, Mr. Uppal, if what you're saying is

you wanted to present this to show that there was a reasonable

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good faith basis for the opinion of caution that came from your

counsel, perhaps. And I'm not prejudging this, but I tell you

having a trial on that would look like a big distraction to the

jury from what really matters. This is our first discussion,

so nobody has to get worried about anything I'm saying. But

it's looking like that would be something that would have to

be looked at closely, whether that would be a basic Rule 403

issue, whether its probative value justifies -- whether it has

any -- much or any probative value at all.

I suppose if we're going to have a trial that's going

to leave it to the jury, I can see why both of you would want

to have somebody lined up.

I'm just preliminarily skeptical that the trial would

ever get to that, but -- All right.

Now, the time -- So you want nine months for fact

discovery. And I agree if you're going to have expert

testimony, that's not going to be really dependent on

discovery. You can have your experts get going.

So, Mr. Uppal, you were saying you think you need that

much time?

MR. UPPAL: Yes, Your Honor. I mean, again, I do know

some of them are going to go by the wayside, but I'm already

dealing with 43 identified witnesses and 5,600 document

disclosure. That's only going to grow. And I would submit to

you that given what's at stake, nine months of fact discovery

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is appropriate.

THE COURT: Mr. Schleier, if you're listing 43

witnesses, one way to speed this up and economize it is for me

to require you to give the bare bones of what they're going to

testify. And it seems highly likely that many of them are not

going to have evidence that's either significant or disputed.

So that's the way for the other side to make a

judgment of how many of them they might need to depose. And I

often will require this, especially if you're offering

witnesses that may well be background or cumulative witnesses.

MR. SCHLEIER: I understand that, Your Honor, but it's

my practice in an initial disclosure statement to disclose

everything and be overinclusive rather than paying the penalty

later on of not identifying a witness.

THE COURT: That's fine. But I guess what I want to

direct is that you all communicate. And right now I'm not

going to make a directive. I'm going to rely on counsel's

ability to be practical to let Mr. Uppal know what those

witnesses are about, what they're going to say. And it may be

undisputed matters. It may be cumulative. I just want an

efficient, economic way for everybody to move the case along.

So I'm going to direct you to do that but not put it

in an order. I'm sure you all know how to do that.

So November -- So, Mr. Uppal, what I'm hearing you say

is there's a history of bad blood here without pointing fingers

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at any one side or the other.

MR. UPPAL: I think that's fair, Your Honor.

THE COURT: Well, Mr. Schleier, you want -- you think

this is an appropriate schedule too? I mean --

MR. SCHLEIER: Candidly, when I sent the initial draft

to Mr. Uppal, the deadlines were shorter. He asked for

somewhat longer deadlines, and as a matter of professional

courtesy and based upon working with him for a long period of

time, I extended them.

THE COURT: I often see that in the schedules that are

proposed, and that's why I'm having this discussion.

What I worry about is if we have too much time, things

stop and start, and counsel burn up more money refamiliarizing

themselves with the case. On the other hand, I know there's

other things to do. But if you're going to do depositions, it

really makes sense to do them close, if not back to back on

simple ones.

Mr. Schleier, you're going to be driving the

depositions. Mr. Uppal doesn't have much to depose.

MR. SCHLEIER: Right.

THE COURT: So then it's just a matter of scheduling.

I take it all these people are going to be people from the

district?

MR. SCHLEIER: I would anticipate, Your Honor, yes.

THE COURT: So Mr. Uppal has good control over their

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availability.

MR. UPPAL: With the exception of I think there are

people that are retired. At least two of the people that he's

mentioned have retired, including one that I definitely think

he's going to depose, which is President Solley.

MR. SCHLEIER: That's right.

MR. UPPAL: And I believe Ms. Kakar, who is listed, is

also retired. But I do not anticipate big problems.

THE COURT: All right. There's a lot to be said

having discovery before you get deep into the summer because

it's so hard to schedule stuff in the summer anyway. Could we

get this done by the end of June; everybody enjoy their

vacations afterwards?

Mr. Uppal, I'm not twisting your arm. I'm thinking

economy for both clients, and if after you dialog you have

legitimate disagreements with the other side about whether

certain depositions are even necessary, you can bring that

dispute to me, and I'll --

MR. SCHLEIER: Your Honor, could I offer a compromise?

THE COURT: Yes.

MR. SCHLEIER: I had originally suggested August 26th

in my initial proposal, and that would basically almost split

the baby between the end of June and when we have November 4th

or so.

THE COURT: I'm not trying to beat up on you. I just

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want to hear why that wouldn't be enough.

MR. UPPAL: August 26th, Your Honor?

THE COURT: Uh-hmm.

MR. UPPAL: Your Honor, I didn't move it out but two

months, so Mr. Schleier's correct he proposed August 26th. I

asked for a couple months, not like another half a year or

anything, and he agreed.

THE COURT: But I guess the real issue, as I said,

Mr. Schleier is going to be driving the discovery.

MR. UPPAL: Yes.

THE COURT: So you're going to be in a position to be

initiating the process and the timeliness, and for the most

part defendant will be producing these witnesses. So --

MR. UPPAL: Fair enough, Your Honor. And that will

drive back -- that will necessarily have to drive back the

expert disclosures as well. But so be it in terms of August

26th if that's acceptable to the Court.

THE COURT: I don't want to put anybody in an unfair

spot. I'm just trying to think through. Another goal is to

have our motions for summary judgment briefed before the end of

the year.

MR. SCHLEIER: The total briefing process or just

filed, Your Honor? I'm sorry?

THE COURT: Just filed.

MR. SCHLEIER: I'm sorry?

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THE COURT: Well, actually I know I'd have to think it

through. If we have close of discovery at the end of August,

we should be able to have the motions for summary judgment

fully briefed before the holiday period in December. And

nothing happens in the second half of December anyway.

MR. SCHLEIER: Or the first half.

THE COURT: And I don't schedule anything for anybody

in the second half of December.

Indeed, when deadlines fall through there, I go

through, and I just extend them on my own, playing Santa Claus,

I guess.

Actually August 26th is a Friday. All right. Let's

set the close of fact discovery for August 26th, and then

expert disclosures -- Those experts can get going now.

MR. SCHLEIER: Your Honor, in my original proposal, it

was May 20th.

THE COURT: September, October, November -- May --

That should be plenty of time. That's four months. That's

plenty of time.

And, Mr. Uppal, you're going to know whether they are

going to be wanting to present an expert on the copyright

stuff. So if it turns out they decide not to, you might decide

not to, or you might independently want to do it. But you're

going to know before that date whether they're doing that or

not, so --

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So let's set May -- Let's move it up a little bit,

just -- Let's set May the 6th for initial expert disclosures

for anybody that is intending to offer any experts other than

rebuttal to the other side.

Let's say June -- June the 3rd -- Well, June the 10th

is five weeks for any rebuttal -- initial rebuttal expert

disclosures and June 24 for any, I mean, any responding expert

disclosures, and June 24 for any purely rebuttal disclosures

for whichever party is propounding initial experts. And then

we'll also set August 26th for the close of expert discovery.

And, Mr. Uppal, how many weeks do you need to do your

motion for summary judgment? I know the other side is too,

but --

MR. UPPAL: 30 days after the close of discovery, Your

Honor.

THE COURT: Well, how about September 23rd then? Does

that work for both of you?

MR. SCHLEIER: That was the date I originally

proposed, Your Honor.

THE COURT: Okay. All right. We'll set September

23rd as the deadline for any dispositive motions. Then we'll

brief them in due course, and it will be fully briefed before

the holiday period.

And then in the event there are no dispositive

motions, we'll set a date for submission of a proposed joint

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final pretrial statement of September 16.

Now, I guess your proposal for the deadline for

good faith settlement discussions, May 27, that seems to be

plenty of time. As I think you all know, I require the parties

and counsel to meet to discuss settlement. You don't have to

settle a case. You don't even have to make a settlement offer.

But you all have to be there and talk about it, and you have to

file a one-line report with me telling me that you did.

I like to -- You can satisfy my requirement tomorrow

if you want. I set a deadline by which it -- I require that it

be done. I want this to be at the point in time where the

parties have the important information but hopefully before the

lawyers have spent all the money.

And for you, Mr. Uppal, you need a human being with

settlement authority to be there.

MR. UPPAL: Understood, Your Honor.

THE COURT: Oh, I guess May 27th still looks fine.

Anybody have any different thoughts?

We'll set May 27 as the deadline for the good faith

settlement discussions. If you want to have a settlement

conference with a magistrate judge, you both request it, I'll

order that. Bear in mind it usually takes them six to eight

weeks to get things scheduled. So if you want to do that, make

the request enough ahead of time that the magistrate judge can

get it on their calendar.

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And, Nick, is there anything else on my list?

THE CLERK: The pretrial order deadline, you said

September 16th, but I think you might have meant October. You

said September 23rd for dispositive motions.

THE COURT: What was my date for summary judgment

motions again?

THE CLERK: September 23rd.

THE COURT: Yes, indeed, it should be October. We'll

set October 14 as the deadline for submission of a proposed

joint final pretrial statement. But that date will drop out if

any dispositive motions are set.

All right. Counsel, is there anything that either of

you would like to bring up that would assist us in processing

the case?

MR. SCHLEIER: I don't think so, Your Honor. Thank

you.

MR. UPPAL: No. Thank you for your time, Your Honor.

THE COURT: Well, I encourage you to, as I said

before, think through how you can process -- Obviously the

plaintiffs have an interest. They're usually working on a

contingent fee. They have an interest in being economical,

thorough but economical, and the same incentive applies to the

defendant. But it just seems to me like there are things here

that you can narrow and notwithstanding the pessimism you

express, Mr. Uppal. So hope springs eternal in my heart. All

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right. Very well then. I'm going to take a brief recess to

retrieve my file for the next case.

(Proceedings recessed at 2:29 p.m.)

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UNITED STATES DISTRICT COURT

C E R T I F I C A T E

I, LINDA SCHROEDER, do hereby certify that I am duly

appointed and qualified to act as Official Court Reporter for

the United States District Court for the District of Arizona.

I FURTHER CERTIFY that the foregoing pages constitute

a full, true, and accurate transcript of all of that portion of

the proceedings contained herein, had in the above-entitled

cause on the date specified therein, and that said transcript

was prepared under my direction and control.

DATED at Phoenix, Arizona, this 25th day of July, 

2016. 

 s/Linda Schroeder 

 Linda Schroeder, RDR, CRR 

 

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