Opinion
Civil Action No. 7129
February 16, 2001
ORDER GOVERNING FURTHER PROCEEDINGS
The Court having heard the parties at a conference on the record held November 14, 2000, it is ORDERED, this 16th day of February, 2001, as follows:
The new trial mandated by the Delaware Supreme Court's opinion in Cede Co. and Cinerama, Inc. v. Technicolor, Inc., Del. Supr., 758 A.2d 485 (2000) ( "Technicolor V"), will be conducted as set forth in the following paragraphs:
1. The original Pre-Trial Order in the matter shall be of no further force or effect, and the parties shall be required to submit a new Pre-Trial Order on a schedule to be established. The parties are free to stipulate that any or all of the original Pre-Trial Order shall be incorporated in the new Pre-Trial Order.
2. The testimonial record made at the original trial shall not be used for any purpose at the new trial unless such testimonial evidence satisfies an exception to the hearsay rules or its admission is stipulated to by the parties.
3. The documentary record of trial exhibits admitted at the original trial shall not be used for any purposes at the new trial unless the admission of any such exhibit is stipulated to by the parties or such exhibit is admitted by the Court on motion made before the new trial. The parties shall also be permitted to introduce new exhibits, the admissibility of which shall be resolved by stipulation or motion prior to trial.
4. Evidentiary rulings made at the original trial shall not be deemed law of the case, except for matters that have been specifically affirmed or decided by the Delaware Supreme Court.
5. In accordance with the Court's inherent authority to control its docket and schedule, each party's presentation of its case at the new trial (including direct, cross, redirect, and re-cross examination of its witness(es) is limited to two days, commencing each day at 9:00 a.m. and concluding at 5:00 p.m.
A. Each party may designate up to two expert witnesses without regard to whether such witness(es) previously testified on its behalf at the original trial or whether such party's witness(es) at the original trial are "available" (as that term is used under Court of Chancery Rule 63 or the Delaware Uniform Rules of Evidence) to testify again.
B. The expert witness(es) of each party may utilize any methodologies or techniques generally recognized by experts in the particular field and by the courts of this State, without regard to whether such methodologies or techniques were employed by such party's witness(es) at the original trial.
C. Each party's expert witness(es) shall submit to the opposing party a full report containing the expert witness(es)' opinions, including all supporting analyses, computations, data and material relied upon, and the expert witness(es) thereafter shall be subject to pre-trial deposition, on a schedule to be established.
D. If either party elects to use an expert or experts upon whom it did not rely at the original trial, such party shall not be responsible for any costs or expenses incurred by the opposing party in connection with preparing for and conducting discovery relating to the new expert's or experts' analyses.
6. Trial shall be limited to four days (as above described), with two days to be allocated per side, with a fifth day available should, entirely at the discretion of the Court, additional time be required for the presentations of either or both parties. All exhibits shall be pre-marked; objections to exhibits shall be filed in limine and resolved, if possible, in advance of trial. Post-trial briefs shall include proposed findings of fact and conclusions of law and shall be submited in CD-ROM disk format. Oral argument following the post-trial briefing shall be at the discretion of the Court. The parties shall confer and report to the Court as to when the case will be ready for trial.