Axanar: Order Setting Scheduling Conference
On March 4, 2016, Judge Gary Klausner issued an Order Setting Scheduling Conference. What this means is, there is a new date and a new slant to what is going on. For earlier information on the case, see: Wheels in Motion and Motion to Dismiss or Strike Complaint and for my credentials, see: Sound, Fury, and Axanar.
There are three documents, one of which is two pages long. As always, I will provide the image and a link where you can get a bigger copy. These documents are a matter of public record, and you are more than allowed to have a copy of them.
Order Setting Scheduling Conference
First we have the order itself, which consists of two pages.
Axanar: Order Setting Scheduling Conference Page 1
What the order says
The court says as follows:
- You have to agree on a plan on how you’ll proceed with discovery. It’s due on April 18.
- That plan must be filed in a joint statement to the court no later than a week after that, e. g. April 25. That statement must include “a brief factual summary of the case, including the claims being asserted.”
- The May 9 conference is in person. Book your flights now; you can’t do this by phone.
- Plaintiffs’ counsel is responsible for telling all parties when the conference is taking place.
- Plaintiffs’ counsel “is further directed to give notice of the scheduling conference immediately to each party that makes an initial appearance in the action after this date.” That includes, potentially, the Doe defendants and/or just in case anyone else is named as a plaintiff (e. g. let’s say defense is right and there really is some other entity with an ownership interest in the alleged infringed items).
- The parties also have to file ADR-01 and ADR-12. Those are due five days before the conference, e. g. May 4. ADR-01 is a request for Alternative Dispute Resolution (that’s what ADR stands for), and ADR-12 is the order which would accompany said request.
This document lists three separate forms of ADR.
- ADR PROCEDURE NO. 1: ( district judge or magistrate judge assigned to the case for such settlement proceedings as the judge may conduct or direct).
- ADR PROCEDURE NO. 2: This case is referred to the ADR Program. Within twenty-one (21) days, plaintiff shall obtain the consent of a neutral listed on the Court’s Mediation Panel who will conduct the mediation, and file form ADR-2, Stipulation Regarding Selection of Panel Mediator. If the parties have not selected and obtained the consent of a Panel Mediator within twenty-one (21) days, the ADR Program (213-894-2993) will assign one. Forms and a list of the Panel Mediators are available on the Court website, www.cacd.uscourts.gov. Absent extraordinary circumstances, parties cannot request a continuance within three (3) business days of a scheduled mediation.
- ADR PROCEDURE NO. 3 : (Private mediation).
Many, many thanks to Ken Byrd for getting this stubborn form to work, and sending me a copy.
Axanar: ADR-01 ADR Procedure Selection Form
This document is the order required to go along with ADR-01.
What Does it All Mean?
You may be wondering, which one is it? Is this some conference to schedule discovery, or is it get the parties to agree to alternative dispute resolution (looks like it would be mediation and not arbitration in this instance)?
The conference is, yes, to schedule and hammer out discovery. The forms are in case the parties can agree to mediation. The advantages to mediation are: it’s cheaper and faster. The disadvantages are: no jury trial, and it really doesn’t set a precedent (a court could conceivably read and enter a mediation opinion – assuming there was one – and use it as a means of deciding some hypothetical future case. Or not. Either way, it’s not going to carry the weight that a court opinion would, which in turn would carry less weight than an opinion rendered in an appeal).
Who does mediation favor? Probably more the defense rather than the plaintiffs, but the idea that there would be little to no precedent set might be attractive to C/P. As for which of the three is best, I suspect (don’t know for certain) that neither party would want option #2. Option #1 seems to afford the possibility of getting a mediator with experience in these sorts of issues – but if the pool of mediators in option #2 are all experienced in a wide spectrum of cases, then that might not matter so much.
As to whether this means the Motion to Dismiss is off the table, I get the feeling what we will see in the fact pattern requested for the conference will be more detailed. Does it matter with reference to the motion? I get the feeling behind the scenes stuff is happening which isn’t turning into court documents (probably true in most cases – this is nothing new). So there may be some form of an agreement to essentially drop the motion in exchange for resolving the two biggest issues, which are specificity regarding the claimed infringements and IP ownership. Note: I do not know this for certain but that is my best determination, given the activities I have been observing.
What Happens Next?
As the judge has requested, discovery is hammered out between the parties. When the conference happens, it will just be the lawyers attending, and it may not even be the lead attorneys. In particular, if settlement or going to ADR is not in the cards, this could end up being an appearance for a more junior attorney. I will be following this matter as I can.
If new documents are filed or there is some other news, I will let you know when I do.
As always, I thank you for reading and for your kind support and attention. Please feel free to ask questions in the comments section, and I will do what I can to answer them.
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