Case 1:11-cv-00797-RGA Document 194 Filed 10/24/12 Page 1 of 6 PageID #: 1131
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Civil Action No. 11-797-RGA
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`FASTVDO LLC,
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`Plaintiff,
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`v.
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`APPLE INC. et al,
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`Defendants.
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`ORDER GOVERNING PATENT MEDIATION
`CONFERENCES AND MEDIATION STATEMENTS
`
`THIS ORDER CONTAINS IMPORTANT INFORMATION WHICH
`SHOULD BE READ BY COUNSEL PRIOR TO PREPARATION OF A
`MEDIATION STATEMENT.
`
`At Wilmington this 24 day of October, 2012.
`th
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`IT IS ORDERED that:
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`MEDIATION CONFERENCE
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`1.
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`A mediation conference is scheduled for Friday, January 11, 2013 beginning at
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`9:00 a.m. with defendant Fujifilm North America Corporation only. All required participants (see
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`¶ 2) are to report at this time to a location to later be determined by the Court and to remain available
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`until excused by the Court. Dress for the mediation is business casual.
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`REQUIRED PARTICIPANTS
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`2.
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`Each party must be represented at the mediation conference by the following required
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`participants: (a) trial counsel; (b) counsel who is/are familiar with the case; and (c) the party/parties
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`and/or decision maker(s) of the parties, who must have full authority to act on behalf of the parties,
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`including the authority to negotiate a resolution of the matter and to respond to developments during
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`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`Civil Action No. 11-797-RGA
`
`))
`
`))
`
`)
`)
`
`))
`
`)
`
`FASTVDO LLC,
`
`Plaintiff,
`
`v.
`
`APPLE INC. et al,
`
`Defendants.
`
`ORDER GOVERNING PATENT MEDIATION
`CONFERENCES AND MEDIATION STATEMENTS
`
`THIS ORDER CONTAINS IMPORTANT INFORMATION WHICH
`SHOULD BE READ BY COUNSEL PRIOR TO PREPARATION OF A
`MEDIATION STATEMENT.
`
`At Wilmington this 24 day of October, 2012.
`th
`
`IT IS ORDERED that:
`
`MEDIATION CONFERENCE
`
`1.
`
`A mediation conference is scheduled for Friday, January 11, 2013 beginning at
`
`9:00 a.m. with defendant Fujifilm North America Corporation only. All required participants (see
`
`¶ 2) are to report at this time to a location to later be determined by the Court and to remain available
`
`until excused by the Court. Dress for the mediation is business casual.
`
`REQUIRED PARTICIPANTS
`
`2.
`
`Each party must be represented at the mediation conference by the following required
`
`participants: (a) trial counsel; (b) counsel who is/are familiar with the case; and (c) the party/parties
`
`and/or decision maker(s) of the parties, who must have full authority to act on behalf of the parties,
`
`including the authority to negotiate a resolution of the matter and to respond to developments during
`
`
`
`Case 1:11-cv-00797-RGA Document 194 Filed 10/24/12 Page 2 of 6 PageID #: 1132
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`the mediation process. Full authority means that those participants on behalf of a party should be
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`able to make independent decisions and have a knowledge or understanding of the dispute and/or
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`the business objectives/operations of their company to generate and consider solutions and/or to be
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`able to address the negotiation dynamics in mediation. It is not just settlement authority, that is, to
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`make an offer or to accept an amount.
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`In-person attendance at the mediation conference by the participants described above
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`is required unless otherwise authorized by the Court. Any request to modify this requirement shall
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`be made in writing to the Magistrate Judge, with a copy to all counsel or pro se parties, no later than
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`fourteen (14) days before the mediation conference.
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`CONTACT INFORMATION FOR REQUIRED PARTICIPANTS
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`3.
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`(a)
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`No later than the date on which mediation statements are due (see ¶ 4
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`below), counsel shall provide to the court in a writing separate from the mediation statement, for
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`each attorney who will be attending the mediation conference: (i) a direct dial telephone work
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`number, (ii) a cell or home telephone number, and (iii) an electronic mail address where the attorney
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`can be regularly reached. Unrepresented parties shall provide at least one of these three forms of
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`contact information.
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`EXCHANGE OF LIST OF PARTICIPANTS ATTENDING MEDIATION
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`(b)
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`No later than the date on which the mediation statements are due (see ¶
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`4 below), counsel shall submit a list of all participants, including attorney and non-attorney
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`representatives, who will be attending the mediation on behalf of their party, to the opposing party
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`or parties.
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`CONFIDENTIAL MEDIATION STATEMENTS
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`2
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`Case 1:11-cv-00797-RGA Document 194 Filed 10/24/12 Page 3 of 6 PageID #: 1133
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`4.
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`On or before Friday, December 28, 2012, AN ORIGINAL and ONE COPY of a
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`confidential mediation statement containing all of the information required by ¶ 6 shall be submitted
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`ONLY to the Magistrate Judge. The mediation statements shall not be filed with the Clerk's Office,
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`nor emailed to Chambers without permission, but shall be delivered to the Clerk’s Office in
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`an envelope addressed to U. S. Magistrate Judge Sherry R. Fallon and marked
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`“CONFIDENTIAL MEDIATION STATEMENT.” The statements shall not be exchanged
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`among the parties or counsel (unless the parties so desire), shall not be provided to the trial judge,
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`and shall not become part of the record in this matter. Mediation statements shall NOT be
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`electronically filed since they are not part of the Court record.
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`5.
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`The mediation statements may be in memorandum or letter form. They must be
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`double-spaced, in no less than a 12-point font, and be no longer than twenty (20) pages.
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`6.
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`The mediation statements must contain each of the following headings and must
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`contain a discussion of each of the topics described below:
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`a)
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`“The Parties”: provide a description of who the parties are, their relationship,
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`if any, to each other, and by whom each party is represented, including the identity of all individuals
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`who will be participating on behalf of a party during the mediation conference.
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`b)
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`“Factual Background”: provide a brief factual background, clearly indicating
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`which material facts are not in dispute and which material facts remain in dispute.
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`c)
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`“Summary of Applicable Law”:
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`provide a brief summary of the law,
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`including applicable statutes, cases and standards. Copies of any unreported decisions (including
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`decisions from this jurisdiction) that counsel believes are particularly relevant should be included
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`as exhibits (see ¶ 7).
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`3
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`Case 1:11-cv-00797-RGA Document 194 Filed 10/24/12 Page 4 of 6 PageID #: 1134
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`d)
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`“Honest Discussion of Strengths and Weaknesses”: provide an honest
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`discussion of the strengths and weaknesses of the party's claims and/or defenses.
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`e)
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`“Settlement Efforts”: provide a brief description of prior settlement
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`negotiations and discussions, including the most recent offers or demands exchanged between the
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`parties and the reasons for rejection, and the party's assessment as to why settlement has not been
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`reached.
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`f)
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`“Settlement Proposal”: describe the party's proposed term(s) for a resolution.
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`Further, identify any interests or issues not directly involved in this matter that may frustrate or
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`further settlement. If the party has any suggestions as to how the Court may be helpful in reaching
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`a resolution, such suggestions should also be described.
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`g)
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`“Fees and Costs”: list separately each of the following: (i) attorneys’ fees and
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`costs incurred to date; (ii) other fees and costs incurred to date; (iii) good faith estimate of additional
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`attorneys’ fees and costs to be incurred if this matter is not settled; and (iv) good faith estimate of
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`additional other fees and costs to be incurred if this matter is not settled.
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`In addition to the required topics described above, and provided that the mediation
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`statement complies with the page limit stated above, counsel are encouraged to address any other
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`matter they believe may be of assistance to the Court.
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`7.
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`Crucial or pertinent documents may be submitted as exhibits to the mediation
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`statement. Counsel are cautioned to limit such exhibits.
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`CONFIDENTIALITY
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`8.
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`The contents of the mediation statements and the mediation conference
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`discussions, including any resolution or settlement, shall remain confidential, shall not be used
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`4
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`Case 1:11-cv-00797-RGA Document 194 Filed 10/24/12 Page 5 of 6 PageID #: 1135
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`in the present litigation nor any other litigation (whether presently pending or filed in the
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`future), and shall not be construed as nor constitute an admission. Breach of this provision
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`shall subject the violator to sanctions.
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`EX PARTE CONTACTS
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`9.
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`Before, during, and after the scheduled mediation conference, the Court may find it
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`necessary and useful to communicate with one or more parties outside the presence of the other party
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`or parties.
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`REQUEST TO BRING ELECTRONIC EQUIPMENT
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`10.
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`Any possession by an attorney of an electronic device shall be permitted in
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`accordance with this Court's Standing Order regarding possession by attorneys of cell phones, other
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`PDA devices, and laptop computers, dated November 17, 2011. Any request that representatives
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`of a party be permitted to bring electronic equipment to the mediation conference shall be made in
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`writing by counsel and shall be submitted in a separate letter no later than the date on which
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`mediation statements are due (see ¶ 4 above). Any such request shall include the name(s) of the
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`individuals, a list of the equipment requested to be authorized, and a representation that counsel
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`believes the presence of the requested equipment will be of assistance in the mediation process and
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`that the request is not being made just for convenience.
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`OBLIGATION OF GOOD FAITH PARTICIPATION
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`11.
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`The required participants shall be available and accessible throughout the mediation
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`process. The Court expects the parties' full and good faith cooperation with the mediation process.
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`In particular, the Court expects both the lawyers and the party representatives to be fully prepared
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`to participate. The Court encourages all participants to keep an open mind in order to reassess their
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`5
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`Case 1:11-cv-00797-RGA Document 194 Filed 10/24/12 Page 6 of 6 PageID #: 1136
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`previous positions and to find creative means for resolving the dispute.
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`AVOIDANCE OF SANCTIONS
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`12.
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`All counsel are reminded of their obligations to read and comply with this
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`Order. Delaware counsel are reminded of their obligations to inform out-of-state counsel of this
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`Order. To avoid the imposition of sanctions, counsel shall advise the Court immediately of any
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`problems regarding compliance with this Order.
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`/s/ Sherry R. Fallon
`UNITED STATES MAGISTRATE JUDGE
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`6
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