2 3 4 5 6 7 10 11 JANE DOE, Case No.: 20cv1818-MMA (MSB)
12 Plaintiff, NOTICE AND ORDER FOR EARLY 13 v. NEUTRAL EVALUATION CONFERENCE AND CASE MANAGEMENT CONFERENCE 14 CISSY STEELE, et al., 15 Defendants. 16 17 18 IT IS HEREBY ORDERED that an Early Neutral Evaluation (“ENE”) of your case will 19 be held via video conference on May 7, 2021, at 9:30 a.m., to be hosted through the 20 Court’s ZoomGov account. All discussions at the ENE Conference will be informal, off 21 the record, privileged, and confidential. Counsel for any non-English speaking party is 22 responsible for arranging for the appearance of an interpreter at the conference. The 23 following rules and deadlines apply: 24 1. Personal Appearance of Parties Required: All named parties, party 25 representatives, including claims adjusters for insured defendants, as well as the 26 principal attorney(s) responsible for the litigation, must participate in the video 27 conference, and be legally and factually prepared to discuss and resolve the case. 2 result in the immediate termination of the conference. 3 2. Full Settlement Authority Required: A party or party representative with 4 full settlement authority1 must be present at the conference. Retained outside 5 corporate counsel shall not appear on behalf of a corporation as the party 6 representative who has the authority to negotiate and enter into a settlement. 7 3. Confidential ENE Statements Required: No later than April 30, 2021, the 8 parties shall submit directly to Magistrate Judge Berg’s chambers (via hand delivery or 9 by e-mail to the Court at efile_berg@casd.uscourts.gov), confidential settlement 10 statements. The ENE statement is limited to five (5) pages or less, and up to five (5) 11 pages of exhibits or declarations. Each party’s ENE statement must outline (1) the 12 nature of the case and the claims, (2) position on liability or defense, (3) position 13 regarding settlement of the case with a specific demand/offer for settlement, and 14 (4) any previous settlement negotiations or mediation efforts. 15 If a specific demand or offer cannot be made at the time the ENE statement is 16 submitted, then the reasons as to why a demand or offer cannot be made must be 17 stated. Further, the party must explain when they will be prepared to state a demand 18 or offer. General statements such as a party will “negotiate in good faith” is not a 19 specific demand or offer. The ENE statement should be submitted confidentially and 20 need not be shared with other parties. 21 / / / 22
23 1 “Full settlement authority” means that the individuals at the settlement conference must be 24 authorized to fully explore settlement options and to agree at that time to any settlement terms 25 acceptable to the parties. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989). The person needs to have “unfettered discretion and authority” to change the settlement position of a 26 party. Pitman v. Brinker Int’l, Inc., 216 F.R.D. 481, 485–86 (D. Ariz. 2003). The purpose of requiring a person with unlimited settlement authority to attend the conference contemplates that the person’s 27 view of the case may be altered during the face to face conference. Id. at 486. A limited or a sum 2 ENE. IF YOU ARE UNFAMILIAR WITH ZOOM: Zoom is available on computers through a 3 download on the Zoom website (https://zoom.us/meetings) or on mobile devices 4 through the installation of a free app.2 Joining a Zoom conference does not require 5 creating a Zoom account, but it does require downloading the .exe file (if using a 6 computer) or the app (if using a mobile device). Participants are encouraged to create 7 an account, install Zoom, and familiarize themselves with Zoom in advance of the ENE.3 8 There is a cost-free option for creating a Zoom account. 9 5. Prior to the start of the ENE, the Court will e-mail each ENE participant an 10 invitation to join a Zoom video conference. Again, if possible, participants are 11 encouraged to use laptops or desktop computers for the video conference, as mobile 12 devices often offer inferior performance. Participants shall join the video conference by 13 following the ZoomGov Meeting hyperlink in the invitation. Participants who do not 14 have Zoom already installed on their device when they click on the ZoomGov Meeting 15 hyperlink will be prompted to download and install Zoom before proceeding. Zoom 16 may then prompt participants to enter the password included in the invitation. All 17 participants will be placed in a waiting room until the ENE begins. 18 6. Each participant should plan to join the Zoom video conference at least five 19 minutes before the start of the ENE to ensure that the ENE begins promptly at 9:30 a.m. 20 The Zoom e-mail invitation may indicate an earlier start time, but the ENE will begin at 21 the Court-scheduled time. 22 7. Zoom’s functionalities will allow the Court to conduct the ENE as it 23 ordinarily would conduct an in-person ENE. That is, the Court will begin the ENE with all 24
25 26 2 If possible, participants are encouraged to use laptops or desktop computers for the video conference, as mobile devices often offer inferior performance. 27 2 session, the Court will divide participants into separate, confidential sessions, which 3 Zoom calls Breakout Rooms.4 In a Breakout Room, the Court will be able to 4 communicate with participants from a single party in confidence. Breakout Rooms will 5 also allow parties and counsel to communicate confidentially without the Court. 6 8. No later than April 30, 2021, counsel for each party shall send an e-mail to 7 the Court at efile_berg@casd.uscourts.gov containing the following: 8 a. The name and title of each participant, including all parties and 9 party representatives with full settlement authority, claims adjusters for insured 10 defendants, and the primary attorney(s) responsible for the litigation; 11 b. An e-mail address for each participant to receive the Zoom video 12 conference invitation; and 13 c. A telephone number where each participant may be reached so that 14 if technical difficulties arise, the Court will be able to proceed telephonically instead of 15 by video conference. (If counsel prefers all participants of their party on a single 16 conference call, counsel may provide a conference number and appropriate call-in 17 information, including an access code, where all counsel and parties or party 18 representatives for that side may be reached as an alternative to providing individual 19 telephone numbers for each participant.) 20 9. All participants shall display the same level of professionalism during the 21 ENE and be prepared to devote their full attention to the ENE as if they were attending 22 in person. Because Zoom may quickly deplete the battery of a participant’s device, each 23 participant should ensure that their device is plugged in or that a charging cable is 24 readily available during the video conference. 25 / / / 26
27 2 counsel shall give notice of the ENE to parties responding to the complaint after the 3 date of this notice. 4 11. Case Management Conference: If the case does not settle during the ENE, 5 the Court will conduct a Case Management Conference. In preparation for this 6 conference, the parties must do the following: 7 a. Meet and confer pursuant to Fed. R. Civ. P. 26(f) no later than April 8 23, 2021; 9 b. File a Joint Discovery Plan no later than April 30, 2021. Agreements 10 made in the Joint Discovery Plan will be treated as binding stipulations that are 11 effectively incorporated into the Court’s Case Management Order.
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2 3 4 5 6 7 10 11 JANE DOE, Case No.: 20cv1818-MMA (MSB)
12 Plaintiff, NOTICE AND ORDER FOR EARLY 13 v. NEUTRAL EVALUATION CONFERENCE AND CASE MANAGEMENT CONFERENCE 14 CISSY STEELE, et al., 15 Defendants. 16 17 18 IT IS HEREBY ORDERED that an Early Neutral Evaluation (“ENE”) of your case will 19 be held via video conference on May 7, 2021, at 9:30 a.m., to be hosted through the 20 Court’s ZoomGov account. All discussions at the ENE Conference will be informal, off 21 the record, privileged, and confidential. Counsel for any non-English speaking party is 22 responsible for arranging for the appearance of an interpreter at the conference. The 23 following rules and deadlines apply: 24 1. Personal Appearance of Parties Required: All named parties, party 25 representatives, including claims adjusters for insured defendants, as well as the 26 principal attorney(s) responsible for the litigation, must participate in the video 27 conference, and be legally and factually prepared to discuss and resolve the case. 2 result in the immediate termination of the conference. 3 2. Full Settlement Authority Required: A party or party representative with 4 full settlement authority1 must be present at the conference. Retained outside 5 corporate counsel shall not appear on behalf of a corporation as the party 6 representative who has the authority to negotiate and enter into a settlement. 7 3. Confidential ENE Statements Required: No later than April 30, 2021, the 8 parties shall submit directly to Magistrate Judge Berg’s chambers (via hand delivery or 9 by e-mail to the Court at efile_berg@casd.uscourts.gov), confidential settlement 10 statements. The ENE statement is limited to five (5) pages or less, and up to five (5) 11 pages of exhibits or declarations. Each party’s ENE statement must outline (1) the 12 nature of the case and the claims, (2) position on liability or defense, (3) position 13 regarding settlement of the case with a specific demand/offer for settlement, and 14 (4) any previous settlement negotiations or mediation efforts. 15 If a specific demand or offer cannot be made at the time the ENE statement is 16 submitted, then the reasons as to why a demand or offer cannot be made must be 17 stated. Further, the party must explain when they will be prepared to state a demand 18 or offer. General statements such as a party will “negotiate in good faith” is not a 19 specific demand or offer. The ENE statement should be submitted confidentially and 20 need not be shared with other parties. 21 / / / 22
23 1 “Full settlement authority” means that the individuals at the settlement conference must be 24 authorized to fully explore settlement options and to agree at that time to any settlement terms 25 acceptable to the parties. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989). The person needs to have “unfettered discretion and authority” to change the settlement position of a 26 party. Pitman v. Brinker Int’l, Inc., 216 F.R.D. 481, 485–86 (D. Ariz. 2003). The purpose of requiring a person with unlimited settlement authority to attend the conference contemplates that the person’s 27 view of the case may be altered during the face to face conference. Id. at 486. A limited or a sum 2 ENE. IF YOU ARE UNFAMILIAR WITH ZOOM: Zoom is available on computers through a 3 download on the Zoom website (https://zoom.us/meetings) or on mobile devices 4 through the installation of a free app.2 Joining a Zoom conference does not require 5 creating a Zoom account, but it does require downloading the .exe file (if using a 6 computer) or the app (if using a mobile device). Participants are encouraged to create 7 an account, install Zoom, and familiarize themselves with Zoom in advance of the ENE.3 8 There is a cost-free option for creating a Zoom account. 9 5. Prior to the start of the ENE, the Court will e-mail each ENE participant an 10 invitation to join a Zoom video conference. Again, if possible, participants are 11 encouraged to use laptops or desktop computers for the video conference, as mobile 12 devices often offer inferior performance. Participants shall join the video conference by 13 following the ZoomGov Meeting hyperlink in the invitation. Participants who do not 14 have Zoom already installed on their device when they click on the ZoomGov Meeting 15 hyperlink will be prompted to download and install Zoom before proceeding. Zoom 16 may then prompt participants to enter the password included in the invitation. All 17 participants will be placed in a waiting room until the ENE begins. 18 6. Each participant should plan to join the Zoom video conference at least five 19 minutes before the start of the ENE to ensure that the ENE begins promptly at 9:30 a.m. 20 The Zoom e-mail invitation may indicate an earlier start time, but the ENE will begin at 21 the Court-scheduled time. 22 7. Zoom’s functionalities will allow the Court to conduct the ENE as it 23 ordinarily would conduct an in-person ENE. That is, the Court will begin the ENE with all 24
25 26 2 If possible, participants are encouraged to use laptops or desktop computers for the video conference, as mobile devices often offer inferior performance. 27 2 session, the Court will divide participants into separate, confidential sessions, which 3 Zoom calls Breakout Rooms.4 In a Breakout Room, the Court will be able to 4 communicate with participants from a single party in confidence. Breakout Rooms will 5 also allow parties and counsel to communicate confidentially without the Court. 6 8. No later than April 30, 2021, counsel for each party shall send an e-mail to 7 the Court at efile_berg@casd.uscourts.gov containing the following: 8 a. The name and title of each participant, including all parties and 9 party representatives with full settlement authority, claims adjusters for insured 10 defendants, and the primary attorney(s) responsible for the litigation; 11 b. An e-mail address for each participant to receive the Zoom video 12 conference invitation; and 13 c. A telephone number where each participant may be reached so that 14 if technical difficulties arise, the Court will be able to proceed telephonically instead of 15 by video conference. (If counsel prefers all participants of their party on a single 16 conference call, counsel may provide a conference number and appropriate call-in 17 information, including an access code, where all counsel and parties or party 18 representatives for that side may be reached as an alternative to providing individual 19 telephone numbers for each participant.) 20 9. All participants shall display the same level of professionalism during the 21 ENE and be prepared to devote their full attention to the ENE as if they were attending 22 in person. Because Zoom may quickly deplete the battery of a participant’s device, each 23 participant should ensure that their device is plugged in or that a charging cable is 24 readily available during the video conference. 25 / / / 26
27 2 counsel shall give notice of the ENE to parties responding to the complaint after the 3 date of this notice. 4 11. Case Management Conference: If the case does not settle during the ENE, 5 the Court will conduct a Case Management Conference. In preparation for this 6 conference, the parties must do the following: 7 a. Meet and confer pursuant to Fed. R. Civ. P. 26(f) no later than April 8 23, 2021; 9 b. File a Joint Discovery Plan no later than April 30, 2021. Agreements 10 made in the Joint Discovery Plan will be treated as binding stipulations that are 11 effectively incorporated into the Court’s Case Management Order. The Joint Discovery 12 Plan must be one document and must cover the parties’ views and proposals for each 13 item identified in Fed. R. Civ. P. 26(f)(3). In addition, the Joint Discovery Plan must 14 include the following: 15 i. Service: A statement as to whether any parties remain to be 16 served and, if so, a proposed deadline for service; 17 ii. Amendment of Pleadings: The extent to which parties, claims, or 18 defenses are expected to be added or dismissed and a proposed deadline for amending 19 the pleadings; 20 iii. Protective Order: Whether a protective order is contemplated to 21 cover the exchange of confidential information and, if so, the date by which the 22 proposed order will be submitted to the Court; 23 iv. Privilege: The procedure the parties plan to use regarding claims 24 of privilege and whether an order pursuant to Fed. R. Evid. 502 will be sought; 25 v. Evidence Preservation: Whether the parties have discussed 26 issues related to the preservation of relevant evidence and if there are areas of 27 disagreement, how the parties are resolving them; 1 vi. Electronic Discovery: In addition to the requirements set forth in 2 || Fed. R. Civ. P. 26(f)(3)(C), the parties must describe their agreements regarding 3 methodologies for locating and producing electronically stored information and the 4 || production of metadata, and must identify any issues or agreements regarding 5 || electronically stored information that may not be reasonably accessible (see Fed. R. Civ. 6 || P. 26(b)(2)(B)); 7 vii. Discovery: In addition to the requirements of Fed. R. Civ. P. 8 || 26(f)(3)(B), the parties must describe the discovery taken to date (if any), any proposed 9 || limitations or modifications of the discovery rules, and any identified discovery disputes; 10 |] and 11 viii. Related Cases: Any related cases or proceedings pending before 12 || another judge of this court, or before another court or administrative body. 13 C. Exchange initial disclosures pursuant to Rule 26(a)(1)(A-D) no later than 14 || April 30, 2021. 15 12. Requests to Continue an ENE Conference: Requests to continue ENEs are 16 |/rarely granted. An ENE may be rescheduled only upon a showing of good cause and 17 || adequate notice to the Court. Absent good cause, requests for continuances will not 18 || be considered unless submitted in writing no fewer than seven (7) calendar days prior 19 the scheduled conference. 21 || Dated: March 26, 2021 _ = _ 2 FF 33 Honorable Michael S. Berg United States Magistrate Judge 24 25 26 27 28
3 4 In accordance with the provisions of 28 U.S.C. § 636(c), you are hereby notified 5 that a United States Magistrate Judge of this district may, upon the consent of all 6 parties, conduct any or all proceedings, including a jury or non-jury trial, and order the 7 entry of a final judgment. Consent forms are available in the Clerk’s Office. Plaintiff or 8 his counsel shall be responsible for obtaining the consent of all parties, should they 9 desire to consent. 10 You should be aware that your decision to consent or not to consent is entirely 11 voluntary and should be communicated solely to the Clerk of Court. Only if all parties 12 consent will the Judge or Magistrate Judge to whom the case has been assigned be 13 informed of your decision. 14 Judgments of United States Magistrate Judges are appealable to the United States 15 Court of Appeals in accordance with this statute and the Federal Rules of Appellate 16 Procedure. 17 18
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