1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ADRIAN HOLLEY, et al., Case No. 18-cv-06972-JST
8 Plaintiffs, CASE MANAGEMENT ORDER 9 v. Re: ECF Nos. 153, 154, 155
10 GILEAD SCIENCES, INC., Defendant. 11
12 JAMES JONES, et al., Case No. 19-cv-05383-JST
13 Plaintiffs, Re: ECF Nos. 48, 49, 50 14 v.
15 GILEAD SCIENCES, INC., 16 Defendant. 17 18 The parties recently submitted competing proposed case management schedules, ECF No. 19 153, along with briefs supporting their respective proposals, ECF Nos. 154, 155.1 There are two 20 main issues in contention: (1) whether the Court should order the parties to participate in 21 summary jury trials over Gilead’s objection, and (2) whether the Court should set a deadline for 22 Gilead’s counsel to “certify in writing that they have engaged in best efforts to identify, locate and 23 supply all responsive Electronically Stored Information and document production discovery 24 requested by Plaintiffs to [that] date” or “for substantial completion of Gilead’s production of 25 responsive documents and ESI (contingent on scope and timing of requests.” ECF No. 153-1 at 2. 26
27 1 The parties filed identical documents on the Holley and Jones dockets. Compare Holley, ECF 1 This order resolves those disagreements. 2 Summary Jury Trials 3 Plaintiffs ask the Court to schedule summary jury trials. Gilead opposes this request, 4 arguing that the Court lacks authority to order summary jury trials and that, even if the Court does 5 have the authority, it should not exercise its discretion to order them. As set forth below, the 6 Court disagrees with Gilead on both points. 7 It is helpful to start by defining the term at issue. The Court’s local rules describe 8 summary jury trials as follows:
9 A summary . . . jury trial is a flexible, non-binding process designed to promote settlement in complex, trial-ready cases headed for 10 protracted trials. The process provides litigants and their counsel with an advisory verdict after a short hearing in which the evidence 11 may be presented in condensed form, usually by counsel and sometimes through witnesses. This procedure, as ordinarily 12 structured, provides the litigants an opportunity to ask questions and hear the reactions of the . . . jury. The . . . jury’s nonbinding verdict 13 and reactions to the legal and factual arguments are used as bases for subsequent settlement negotiations. 14 15 ADR L.R. 8-1(b). “The summary jury trial is used to implement the courts’ policy of providing 16 litigants with an expeditious and just resolution of their case by allowing parties to test the 17 reaction of a jury to their case without being bound by the jury’s decision.” 28 Jill Gustafson & 18 Eric C. Surette, Federal Procedure, Lawyers Edition § 64:20 (2019) (footnote omitted). 19 Gilead first contends that the Court has no authority to order summary jury trials over 20 Gilead’s objection, stating that “[c]ourts have recognized the impropriety of” conducting non- 21 binding summary jury trials without the parties’ consent. ECF No. 155 at 2 (citing In re NLO, 22 Inc., 5 F.3d 154, 158 (6th Cir. 1993) and Strandell v. Jackson Cty., 838 F.2d 884, 888 (7th Cir. 23 1987)). The two cases on which Gilead relies, however, pre-date the 1993 amendments to Federal 24 Rule of Civil Procedure 16.2 Those amendments – which Gilead does not address – provide that 25 2 In addition, Gilead fails to note that, prior to the 1993 amendments, there was a split of authority 26 regarding a district court’s authority to order summary jury trials over the parties’ objections. See, e.g., Fed. Reserve Bank of Minneapolis v. Carey-Canada, Inc., 123 F.R.D. 603, 604 (D. Minn. 27 1988) (holding that Rule 16 and the court’s inherent power authorized a court to compel 1 courts may use “special procedures to assist in resolving the dispute when authorized by statute or 2 local rule.” Fed. R. Civ. P. 16(c)(2)(I). As the Advisory Committee noted, this portion of the rule 3 was “revised to describe more accurately the various procedures that, in addition to traditional 4 settlement conferences, may be helpful in settling litigation.” Fed. R. Civ. P. 16 advisory 5 committee’s note to 1993 Amendment. These procedures include “summary jury trials,” and 6 “[t]he rule acknowledges the presence of statutes and local rules or plans that may authorize use of 7 some of these procedures even when not agreed to by the parties.” Id. (emphasis added). Thus, In 8 re NLO and Strandell were “effectively overruled” by the 1993 amendments to Rule 16, at least as 9 applied to courts which provide for summary jury trials by local rule. In re S. Ohio Corr. Facility, 10 166 F.R.D. 391, 396 (S.D. Ohio 1996). 11 This Court is one such court. ADR Local Rule 8-1(b) provides for non-binding summary 12 jury trials as a “Court ADR Process[].” And ADR Local Rule 2-3 provides that, “[s]ubject to 13 pertinent jurisdictional and resource constraints, a case may be referred to a Court ADR process by 14 order of the assigned Judge following a stipulation by all parties, by motion of a party under Civil 15 L.R. 7, or on the Judge’s initiative.” ADR L.R. 2-3 (emphasis added). Under these rules and 16 Federal Rule of Civil Procedure 16, the Court has the authority to order summary jury trials even 17 when not all parties consent. 18 Turning to Gilead’s second argument, the Court concludes that summary jury trials would 19 benefit the parties and the Court. Summary jury trials are “a settlement device used to assist the 20 Parties in assessing the results of a trial on the merits” and may be “very instructive in helping the 21 parties negotiate settlements.” In re Telectronics Pacing Sys., Inc., 137 F. Supp. 2d 985, 993 n.8 22 (S.D. Ohio 2001). “The summary jury trial is an innovative settlement mechanism with a high 23 success rate. The procedure conserves judicial resources, promotes efficiency, saves time and 24 money for the parties, and most importantly provides an accurate reading of what will actually 25 happen at trial.” In re S. Ohio Corr. Facility, 166 F.R.D. at 394 (footnote omitted). A summary 26 jury trial also enables the Court and the parties to identify in advance any aspects of a full trial on 27 the merits that might present manageability concerns. In re Telectronics, 137 F. Supp. 2d at 993 1 resolution techniques (e.g., summary jury trials) may assist the parties in valuing cases for 2 settlement purposes and give the court and parties information about the viability of various trial 3 options.”). The Court disagrees with Gilead’s contention that summary jury trials will impose “an 4 unfair or unreasonable economic burden” on Gilead. ECF No. 155 at 2 (quoting ADR L.R. 1- 5 2(a)). Likewise, although “Gilead is not currently seeking to settle [Plaintiffs’] claims,” id. at 3, 6 “[t]he decision resulting from the [summary jury trial] inevitably results in both sides re- 7 examining and reevaluating their positions and demands,” in part because it “is the only dispute 8 resolution technique which uses the input of a jury of laymen as fact finders,” Carey-Canada, 123 9 F.R.D. at 605.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ADRIAN HOLLEY, et al., Case No. 18-cv-06972-JST
8 Plaintiffs, CASE MANAGEMENT ORDER 9 v. Re: ECF Nos. 153, 154, 155
10 GILEAD SCIENCES, INC., Defendant. 11
12 JAMES JONES, et al., Case No. 19-cv-05383-JST
13 Plaintiffs, Re: ECF Nos. 48, 49, 50 14 v.
15 GILEAD SCIENCES, INC., 16 Defendant. 17 18 The parties recently submitted competing proposed case management schedules, ECF No. 19 153, along with briefs supporting their respective proposals, ECF Nos. 154, 155.1 There are two 20 main issues in contention: (1) whether the Court should order the parties to participate in 21 summary jury trials over Gilead’s objection, and (2) whether the Court should set a deadline for 22 Gilead’s counsel to “certify in writing that they have engaged in best efforts to identify, locate and 23 supply all responsive Electronically Stored Information and document production discovery 24 requested by Plaintiffs to [that] date” or “for substantial completion of Gilead’s production of 25 responsive documents and ESI (contingent on scope and timing of requests.” ECF No. 153-1 at 2. 26
27 1 The parties filed identical documents on the Holley and Jones dockets. Compare Holley, ECF 1 This order resolves those disagreements. 2 Summary Jury Trials 3 Plaintiffs ask the Court to schedule summary jury trials. Gilead opposes this request, 4 arguing that the Court lacks authority to order summary jury trials and that, even if the Court does 5 have the authority, it should not exercise its discretion to order them. As set forth below, the 6 Court disagrees with Gilead on both points. 7 It is helpful to start by defining the term at issue. The Court’s local rules describe 8 summary jury trials as follows:
9 A summary . . . jury trial is a flexible, non-binding process designed to promote settlement in complex, trial-ready cases headed for 10 protracted trials. The process provides litigants and their counsel with an advisory verdict after a short hearing in which the evidence 11 may be presented in condensed form, usually by counsel and sometimes through witnesses. This procedure, as ordinarily 12 structured, provides the litigants an opportunity to ask questions and hear the reactions of the . . . jury. The . . . jury’s nonbinding verdict 13 and reactions to the legal and factual arguments are used as bases for subsequent settlement negotiations. 14 15 ADR L.R. 8-1(b). “The summary jury trial is used to implement the courts’ policy of providing 16 litigants with an expeditious and just resolution of their case by allowing parties to test the 17 reaction of a jury to their case without being bound by the jury’s decision.” 28 Jill Gustafson & 18 Eric C. Surette, Federal Procedure, Lawyers Edition § 64:20 (2019) (footnote omitted). 19 Gilead first contends that the Court has no authority to order summary jury trials over 20 Gilead’s objection, stating that “[c]ourts have recognized the impropriety of” conducting non- 21 binding summary jury trials without the parties’ consent. ECF No. 155 at 2 (citing In re NLO, 22 Inc., 5 F.3d 154, 158 (6th Cir. 1993) and Strandell v. Jackson Cty., 838 F.2d 884, 888 (7th Cir. 23 1987)). The two cases on which Gilead relies, however, pre-date the 1993 amendments to Federal 24 Rule of Civil Procedure 16.2 Those amendments – which Gilead does not address – provide that 25 2 In addition, Gilead fails to note that, prior to the 1993 amendments, there was a split of authority 26 regarding a district court’s authority to order summary jury trials over the parties’ objections. See, e.g., Fed. Reserve Bank of Minneapolis v. Carey-Canada, Inc., 123 F.R.D. 603, 604 (D. Minn. 27 1988) (holding that Rule 16 and the court’s inherent power authorized a court to compel 1 courts may use “special procedures to assist in resolving the dispute when authorized by statute or 2 local rule.” Fed. R. Civ. P. 16(c)(2)(I). As the Advisory Committee noted, this portion of the rule 3 was “revised to describe more accurately the various procedures that, in addition to traditional 4 settlement conferences, may be helpful in settling litigation.” Fed. R. Civ. P. 16 advisory 5 committee’s note to 1993 Amendment. These procedures include “summary jury trials,” and 6 “[t]he rule acknowledges the presence of statutes and local rules or plans that may authorize use of 7 some of these procedures even when not agreed to by the parties.” Id. (emphasis added). Thus, In 8 re NLO and Strandell were “effectively overruled” by the 1993 amendments to Rule 16, at least as 9 applied to courts which provide for summary jury trials by local rule. In re S. Ohio Corr. Facility, 10 166 F.R.D. 391, 396 (S.D. Ohio 1996). 11 This Court is one such court. ADR Local Rule 8-1(b) provides for non-binding summary 12 jury trials as a “Court ADR Process[].” And ADR Local Rule 2-3 provides that, “[s]ubject to 13 pertinent jurisdictional and resource constraints, a case may be referred to a Court ADR process by 14 order of the assigned Judge following a stipulation by all parties, by motion of a party under Civil 15 L.R. 7, or on the Judge’s initiative.” ADR L.R. 2-3 (emphasis added). Under these rules and 16 Federal Rule of Civil Procedure 16, the Court has the authority to order summary jury trials even 17 when not all parties consent. 18 Turning to Gilead’s second argument, the Court concludes that summary jury trials would 19 benefit the parties and the Court. Summary jury trials are “a settlement device used to assist the 20 Parties in assessing the results of a trial on the merits” and may be “very instructive in helping the 21 parties negotiate settlements.” In re Telectronics Pacing Sys., Inc., 137 F. Supp. 2d 985, 993 n.8 22 (S.D. Ohio 2001). “The summary jury trial is an innovative settlement mechanism with a high 23 success rate. The procedure conserves judicial resources, promotes efficiency, saves time and 24 money for the parties, and most importantly provides an accurate reading of what will actually 25 happen at trial.” In re S. Ohio Corr. Facility, 166 F.R.D. at 394 (footnote omitted). A summary 26 jury trial also enables the Court and the parties to identify in advance any aspects of a full trial on 27 the merits that might present manageability concerns. In re Telectronics, 137 F. Supp. 2d at 993 1 resolution techniques (e.g., summary jury trials) may assist the parties in valuing cases for 2 settlement purposes and give the court and parties information about the viability of various trial 3 options.”). The Court disagrees with Gilead’s contention that summary jury trials will impose “an 4 unfair or unreasonable economic burden” on Gilead. ECF No. 155 at 2 (quoting ADR L.R. 1- 5 2(a)). Likewise, although “Gilead is not currently seeking to settle [Plaintiffs’] claims,” id. at 3, 6 “[t]he decision resulting from the [summary jury trial] inevitably results in both sides re- 7 examining and reevaluating their positions and demands,” in part because it “is the only dispute 8 resolution technique which uses the input of a jury of laymen as fact finders,” Carey-Canada, 123 9 F.R.D. at 605. In short, the Court concludes that use of summary jury trials will: (1) give the 10 parties good information about the value of these cases; (2) save the parties and the Court time and 11 money by encouraging earlier settlement; and (3) inform the parties and the Court about the best 12 way of conducting binding jury trials when the case reaches that stage. For all of these reasons, 13 the Court will adopt Plaintiffs’ proposal to conduct summary jury trials. 14 Certification of Document and ESI Production 15 The parties also dispute: (1) whether, as Plaintiffs propose, Gilead’s counsel must “certify 16 in writing that they have engaged in best efforts to identify, locate and supply all responsive 17 Electronically Stored Information and document production discovery requested by Plaintiffs” by 18 a date certain or whether, as Gilead proposes, that date is denominated as the “[d]eadline for 19 substantial completion of Gilead’s production of responsive documents and ESI (contingent on 20 scope and timing of requests)”; and (2) whether the deadline for this event should be 21 September 30, 2020, or November 30, 2020. ECF No. 153-1 at 2. 22 As to the first question, the Court declines to adopt the phrase “substantial completion” 23 because the phrase is so vague as to defy enforcement. The Court also will not require Gilead to 24 certify that it used “best efforts” to comply with its discovery obligations. Gilead, as well as 25 Plaintiffs, must use all reasonable efforts to identify, locate, and supply responsive ESI or 26 documents. See, e.g., De Vera v. United Airlines Inc., No. C 12-05644 LB, 2013 WL 12182141, 27 at *1 (N.D. Cal. Sept. 9, 2013) (request for production “requires only a reasonable effort by 1 DAE-KSC, 2006 WL 2051336, at *4 (D. Haw. July 19, 2006) (“Respondents shall expend all 2 || reasonable efforts to produce the requested documents within 45 days from the filing of this 3 order.”); Dacosta v. Novartis AG, 242 F. Supp. 2d 765, 775 (D. Or. 2002) Gmposing obligation to 4 || make “reasonable effort to locate” responsive documents). 5 Gilead does not address the question of the deadline, and the Court adopts September 30, 6 || 2020. 7 Thus, the Court will adopt September 30, 2020 as the “deadline for completion of Gilead’s 8 || production of responsive documents and ESI.” It is unnecessary to include language regarding a 9 || party’s obligation to use reasonable efforts because the law already imposes that requirement. 10 The parties shall file a proposed scheduling order that conforms with this order no later 11 than January 24, 2020. 12 IT IS SO ORDERED. : 13 Dated: January 17, 2020 . .
JON S. TIGAR 15 nited States District Judge 16
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