Pedersen v. Bankers Life and Casualty Company et al

Northern District of California, cand-4:2015-cv-01472

PRETRIAL ORDER NO. 1: INITIAL PRETRIAL CONFERENCE. Next Pretrial Conference set Wednesday, 10/5/2016 at 10:00 AM. Signed by Judge Yvonne Gonzalez Rogers on 9/30/16.

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 DANIELA PEDERSEN, 7 CASE NO. 15-CV-1472 YGR PLAINTIFF, 8 V. PRETRIAL ORDER NO. 1 RE: INITIAL 9 PRETRIAL CONFERENCE CNO SERVICES, LLC DBA BANKERS LIFE 10 AND CASUALTY COMPANY, BANKERS LIFE AND CASUALTY COMPANY, SAM DOE AND 11 DOES 1-20, 12 DEFENDANT. Northern District of California United States District Court 13 Having considered the filings to date and the arguments and other submissions at the 14 Pretrial Conference, held on September 30, 2016, and for good cause shown, the Court enters the 15 following orders: 16 1. Trial Date and Schedule: The trial of this matter is confirmed to proceed in Courtroom 1 on 17 October 11, 2016. Counsel shall arrive each day in court early enough to proceed on the 18 record promptly at 8:00 a.m. The trial schedule will be Monday through Friday, from 8:30 19 a.m. to 3:00 p.m. with a 15-minute break at 10:15 and a 45-minute break at 12:15, except as 20 noted in paragraph 2. 21 2. The Court will not be in session on October 20 or 21, 2016. 22 3. Additional time may be scheduled for matters outside the presence of the jury as necessary and 23 determined by the Court. Sidebars are not permitted. Counsel should be prepared to anticipate 24 issues so that they may be addressed outside of normal trial hours. In this regard, Counsel 25 should also be prepared to reconvene with the Court after the Court's standing afternoon 26 calendars. 27 4. The parties are hereby allocated thirteen (13) hours each, including for opening statements and 28 closing arguments. 1 5. The Court sets the next pre-trial conference for Wednesday, October 5, 2016 at 10:00 a.m. 2 Prior to said conference, the parties shall meet and confer on exhibits and jury instructions. 3 a. A revised set of instructions shall be filed on Monday, October 3, 2016. 4 b. All disputes regarding documents shall be filed by noon on Tuesday, October 4, 2016. 5 c. With respect to motion in limine in No. 3, plaintiff shall file a proffer by Monday, 6 October 3, 2016, at 5:00 p.m. Defendant shall file a response by Tuesday, October 4, 7 2016, at 5:00 p.m. 8 6. Dismissed Counts: The following counts from the operative Second Amended Complaint are 9 dismissed: Two, Three, Eight, Ten, Twelve, Thirteen, Fifteen, Sixteen and Seventeen. 10 7. Standard Motions in Limine: The Court hereby orders that: (a) witnesses shall be excluded 11 until testimony is completed; (b) there shall be no reference to or evidence presented of 12 settlement discussions, mediation, or insurance; and (c) there shall be no reference to or Northern District of California United States District Court 13 evidence presented of wealth or lack thereof of any party except in the punitive damage phase 14 of a case, to the extent it exists. 15 8. Parties are ordered to admonish witnesses of the Court's rulings. Failure to comply with a 16 ruling by the Court may result in sanctions, including without limitation the striking of the 17 witness's entire testimony. 18 9. Stipulations 19 a. Those set forth in Docket No. 69 are GRANTED. 20 b. Defendant stipulates that it concedes that an "undue hardship" did not exist to the 21 extent that the term means that it could not afford plaintiff's requested accommodation 22 or that it would have been a financial burden. To the extent admissible, the Court will 23 allow evidence as to the use of the phrase in email correspondence. 24 c. Defendant stipulates that CNO Services LLC and Bankers Life and Casualty Company 25 are deemed a single employer and jointly and severally liable. 26 10. Witnesses: The parties are limited to calling the witnesses submitted on the list filed for the 27 Pretrial Conference. Upon a showing of good cause, including for rebuttal or impeachment 28 purposes, additional witnesses will only be allowed by Court order. By Monday, October 3, 2 1 2016, the parties shall file a list of all witnesses, attorneys, and support staff in alphabetical 2 order to be shown to prospective jurors during voir dire. The list shall not contain pleading 3 lines or any headers. A Word version shall be sent to the Court's proposed order email 4 address. 5 11. Exhibits and Exhibit Lists: The parties are limited to using the Exhibits submitted on the list 6 filed for the Pretrial Conference. In light of the nature of the documentary evidence, the 7 parties shall provide the Court with courtesy binders of (i) joint exhibits, (ii) plaintiff exhibits, 8 and (iii) defense exhibits. A similar set of binders shall be provided for the witnesses. 9 No witness may be shown any document or other object until it has been marked for 10 identification using an exhibit number. To the extent the parties agree on further stipulations, 11 they shall file updated Exhibit Lists identifying those for which a stipulation of admissibility 12 exists with an "S" in the appropriate box. Northern District of California United States District Court 13 The jury may not be shown any exhibits until they are admitted into evidence or stipulated 14 to by the parties as to their admissibility without the express permission of the Court. 15 12. Equipment: Projectors, screens and similar equipment must be tested in the courtroom prior 16 to the day when they will be used. Arrangements may be made with the Courtroom Deputy, 17 Frances Stone, at (510) 637-3540, as to the appropriate time for doing so. 18 13. Jurors and Peremptory Challenges: The Court will seat a total of eight (8) jurors and no 19 alternates. The Court sets the number of peremptory challenges at four (4). Batson motions 20 must be made in a timely fashion. Argument on the same shall be made outside the presence 21 of the jury panel. 22 In accordance with Model Rule of Professional Conduct 3.5(b) and Formal Opinion 23 for 466, the parties "may review a juror's or potential juror's Internet presence, which may 24 include postings by the juror or potential juror in advance of and during the trial, but. . . may 25 not communicate directly or through another with a juror or potential juror." A party "may 26 not, either personally or through another, send an access request to a juror's electronic social 27 media. An access request is a communication to a juror asking the juror for information that 28 the juror has not made public and that would not be the type of ex parte communication 3 1 prohibited by Model Rule 3.5(b)." Further, to the extent a juror is questioned based upon that 2 information, counsel shall advise the juror of the investigation. 3 14. Per the Court's Standing Order, the Court will give Model Instructions 1.1B, 1.2, 1.3 and/or 4 1.4, 1.6–1.12, 1.14–1.15, 1.19, and 3.1–3.3 from the Manual of Model Civil Jury Instructions 5 for the Ninth Circuit (2007 Edition). 6 15. Opening Statements: Parties must meet and confer to exchange any visuals, graphics or 7 exhibits to be used in opening statements. Unless otherwise agreed, the exchange must occur 8 no later than the close of business on the Wednesday before trial. Any objections not resolved 9 must be filed in writing by the Thursday before trial. The parties shall be available by 10 telephone on the Friday before trial to discuss the issues raised with the Court. The parties are 11 reminded that the purpose of an Opening Statement is not to argue the facts but to provide the 12 jurors with an outline of what each side expects the evidence will show. Northern District of California United States District Court 13 16. Expert Disclosures/Fed. R. Civ. P. 68 Offers: To the extent applicable, counsel shall lodge 14 with the Court on the first day of trial two copies of all expert disclosures, including any 15 supplements, as well as all offers of judgment made under Fed. R. Civ. P. 68. 16 17. Doe Defendants: All Doe Defendants will be deemed dismissed once the jury, or first 17 witness, is sworn, whichever occurs first. 18 18. Depositions to be Used at Trial: Any party intending to use a deposition transcript at trial for 19 any purpose shall lodge the signed original (or a certified/stipulated copy if, for any reason, the 20 original is not available) for use by the Court and shall have extra copies available for use by 21 him/herself and the witness. All other parties are expected to have their own copies available. 22 The parties shall each prepare and provide an index of the lodged transcripts and shall review 23 the same with the courtroom deputy upon lodging the transcripts. Before each trial day, 24 counsel shall confer with the courtroom deputy and identify which of the transcripts may be 25 used that day. 26 A transcript shall be provided of the portions read to the jury. The court reporter shall 27 be relieved of her duties to transcribe that portion of the trial. In lieu of the court reporter's 28 transcription, the parties shall file in the docket a copy of that portion of the transcript used 4 1 during the trial. The filing shall be designated: "Plaintiff's /Defendant's Trial Related 2 Transcript(s) for Video Deposition(s)." The filing shall include an index listing the name of 3 the deponent-witness and the date used during trial. 4 19. Witnesses at Trial: The party presenting evidence shall give the other party 24 hours written 5 notice of the witnesses to be called unless otherwise agreed upon by the parties themselves. 6 The parties are admonished that use of trial time is critical given the limited resources of the 7 Court. All parties must have witnesses ready and available to testify. If the party presenting 8 evidence does not have a witness ready to be called once a prior witness steps down, that party 9 may be deemed to have rested its case. Witnesses may be taken out of order upon stipulation 10 or with leave of Court provided that the circumstances giving rise to such an accommodation 11 are promptly called to the attention of opposing counsel and the Court. 12 20. Objections: There shall be no "speaking objections," and no rebuttal unless requested by the Northern District of California United States District Court 13 Court, in which case it shall be brief – e.g., "hearsay," and if a rebuttal requested, "not offered 14 for the truth." If either counsel needs to make a better record, he/she may do so when the jury 15 is out at the next break. 16 21. Jury Questions: The Court allows written jury questions, which it will share with counsel at 17 the break(s) and then place in the record. 18 22. Punitive Damages: If the jury will be asked to consider punitive damages, the following 19 additional orders apply: 20 a. Defendant shall have all relevant financial data in Court in a sealed envelope once trial 21 begins; 22 b. Counsel shall have all witnesses who will be called to testify regarding the financial 23 status of the relevant party (e.g., to authenticate relevant documents, etc.) available on 24 one (1) hour notice once jury deliberations begin; and 25 c. The parties shall meet and confer regarding written stipulations to streamline this phase 26 of the case. 27 23. Requests for Transcripts: If transcripts will be requested during or immediately after the 28 trial, arrangements must be made with the Court Reporter Coordinator (Telephone No. 510- 5 1 637-3534) at least one week prior to the commencement of the trial. 2 24. Settlement: Counsel shall promptly notify the Court by phone and email (for after hours, use: 3 of any settlement. The notification shall indicate what 4 further steps need to be taken to finalize the settlement. Unless the Court receives notice of 5 settlement by 4:00 p.m. on the Friday prior to the Monday trial, jury costs will be assessed 6 where the parties do not proceed to trial as scheduled. Civ. L.R. 40-1. Parties are advised that 7 the trial and all trial-related dates will not be vacated until a formal Notice of Settlement is 8 filed. 9 25. Trial Decorum and Procedure: Counsel, parties, and witnesses are expected to conduct 10 themselves at all times – on or off the record and whether or not in the presence of a jury – in a 11 professional and courteous manner during trial. Do NOT approach other parties' witnesses 12 without permission. You may approach your own non-hostile witnesses without permission. Northern District of California United States District Court 13 During voir dire you will be allowed to use the bathrooms in the jury room so that you do 14 not share the facilities with the jurors. You may not linger in the jury room or use any exit 15 door other than the one leading to the courtroom. 16 26. Failure to Comply: Failure to comply with the obligations set forth in this order will result 17 in sanctions appropriate to the gravity of the failure, including, but not limited to monetary 18 fines and/or terminating sanctions. 19 20 IT IS SO ORDERED. 21 Dated: September 30, 2016 22 ______________________________________ YVONNE GONZALEZ ROGERS 23 UNITED STATES DISTRICT COURT JUDGE 24 25 26 27 28 6