Opinion
Case No. 11-11131
08-12-2011
ALLEGRA NETWORK LLC, et al., Plaintiffs, v. DEBRA BAGNALL, et al., Defendants.
ORDER FOR IDENTIFICATION AND PRESENTATION OF
EXHIBITS, HEARING BRIEFS AND PROPOSED FINDINGS
FOR PRELIMINARY INJUNCTION HEARING
A hearing on a motion for a preliminary injunction will be held on September 6, 2011, at 3:00 pm. Two hours are normally allocated for the proceedings on that date. Such hearings, in the experience of the court, are often comparable to non-jury trials, and counsel are thus directed comply with the following instructions: 1) RESPONSE BY DEFENDANTS
As previously discussed during the scheduling conference held on July 27, 2011, Defendants are directed to file their response within two weeks of Plaintiffs' motion, on or before August 25, 2011. 2) EXHIBITS: Examining, Pre-marking and Listing:
a) Counsel must identify in separate lists and exchange with opposing counsel each exhibit and each deposition proposed as an exhibit. "Exhibit" includes items which a party will introduce and items which a party may introduce.
b) Counsel must promptly notify each other of any objections to the admissibility of a proposed exhibit and the basis of the objection.
c) Agreed-upon exhibits and depositions shall be considered admitted at the outset of the hearing. d) All exhibits must be marked by counsel in advance of the hearing. Counsel must not use court time by asking the court reporter to mark exhibits. Plaintiffs will use exhibit numbers beginning with 101, and Defendants will use numbers beginning with 501. 3) FILING OR SUBMITTING TO CHAMBERS STIPULATED EXHIBITS, DEPOSITIONS, TRIAL BRIEFS, AND OTHER MATTERS
a) Counsel for Plaintiffs, not later than September 1, 2011, shall:
i. file a joint list of exhibits and depositions ("Joint Exhibit List"). Each exhibit and each deposition that is not agreed to by the parties must be followed by a notation near the right margin of the page entitled "Objection"; this notation shall be followed by a brief statement describing the nature or basis of the opposing party's objection;
ii. file a joint statement of counsel concerning the suitability of consolidation of the hearing and trial under Rule 65(a)(2) ("Rule 65(a)(2) Statement"); and
iii. submit to the court (but do not file) copies of the exhibits themselves, unless bulk or other considerations make such submission impractical, and copies of the agreed-upon deposition testimony identified in the listing ordered above.
In a case where a permanent injunction is sought which is essentially a mirror of the preliminary injunction, counsel must discuss and recommend to the court the suitability of consolidating the hearing on the preliminary injunction with the trial on the merits of the application for permanent injunction, pursuant to Federal Rule of Civil Procedure 65(a)(1)(2).
b) Each party, not later than September 1, 2011, must file:
i) a "Hearing Brief," which shall include separately numbered proposed findings of fact and a set of proposed conclusions of law; and
ii) a list of the witnesses that each party intends to call, with a brief statement of the proposed testimony (one or two sentences) and an estimate of the time to be consumed in direct and cross examination of each witness.
Counsel should try to agree on the significant facts. Please attempt to construct a consolidated set of findings of fact in the following manner:
• The proponent of the motion prepares separately-numbered proposed findings of fact and transmits them on paper and electronically to opposing counsel ten days before the hearing
• Opposing counsel will agree, as appropriate, with each proposed fact, or disagree and propose an alternate, related fact in substitution for the fact with which counsel disagreed, and opposing counsel should propose additional facts as necessary; this reaction is then transmitted on paper and electronically to proponent of the motion six days before the hearing.
• The proponent of the motion will then react to the additional proposed facts electronically and on paper three days before the hearing.
• The final product can then be submitted to the court in a consolidated form electronically, and on paper.
This procedure will avoid having the parties independently drafting proposed facts, many of which are undisputed yet repeated in both versions.
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, August 12, 2011, by electronic and/or ordinary mail.
Lisa G. Wagner
Case Manager and Deputy Clerk