Case Management Conference Scheduling Order; Case Management Plan; Civil Trial Order; Criminal Trial Order; Boilerplate Civil Jury Charge; Partial Motions to Dismiss Standing Order

=== Case Management Conference Scheduling Order ===

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION JOHN DOE, et al., ) CASE NO. 1:19cv000 Plaintiff(s), vs. JANE DOE, et al., Defendant(s) . JUDGE DAN A. POLSTER CASE MANAGEMENT CONFERENCE SCHEDULING ORDER Persons who practice before this Court are expected to familiarize themselves with the Local Civil Rules of the United States District Court for the Northern District of Ohio1 (Local Rules) and the Federal Rules of Civil Procedure (Fed. R. Civ. P.). They are also expected to read this Order, which departs from the Local Rules in minor but important respects, and follow the Order in its entirety. Do not delegate the responsibility for reading this Order and complying with it to a secretary, paralegal, or other non-attorney staff member in your office. I. NOTICE OF THE CASE MANAGEMENT CONFERENCE The above-entitled action has been set for a Case Management Conference (CMC) on _______________ at ______ before Judge Dan A. Polster, in Chambers 18B, 801 W. Superior Ave., Cleveland, Ohio. Counsel of record who is familiar with the legal and factual issues in the case and who is prepared to participate in settlement discussions should they arise shall attend this Conference in person. To encourage the participation of newer attorneys, in particular women and minorities, this Order specifically modifies the “lead counsel” requirement as described in Local Rule 16.3(b)(1). All parties shall also attend this conference in person. Local Rule 16.3(b). “Parties” means the named individuals or, in the case of a corporation or similar legal entity, a person with knowledge of the facts who has full settlement authority. In addition, if there is, arguably, insurance that covers a plaintiff’s claim(s), Judge Polster expects an insurance representative with full settlement authority to attend the CMC. If the presence 1The Local Rules can be accessed over the Internet at the following link: http://www.ohnd.uscourts.gov/home/rules-and-orders/local-civil-rules/ of a party, lead counsel, or the insurance representative will constitute an undue hardship, a written motion to excuse the presence of such person must be filed well in advance of the CMC. II. CONSENT TO JURISDICTION OF MAGISTRATE JUDGE Magistrate Judge ____________ has been assigned to assist in this case. The parties are encouraged to discuss and consider consenting to the jurisdiction of the Magistrate Judge. See Attachment 1. III. DIFFERENTIATED CASE MANAGEMENT This case is subject to the provisions of Differentiated Case Management (DCM) as set forth in Local Rules 16.1 to 16.3. Each of the tracks (expedited, standard, complex, mass tort, and administrative) has its own set of guidelines governing discovery practice, motion practice and trial practice. Read and pay particular attention to Local Rules 16.1 to 16.3 for track assignment guidelines, Fed. R. Civ. P. 26 and Local Rule 26.1 for discovery practice, Local Rule 7.1 for motion practice and page limitations, and Local Rule 37.1 for resolving discovery disputes. IV. PREPARATION FOR THE CMC: The Planning Meeting; Report of the Planning Meeting The agenda for the CMC is set forth by Local Rule 16.3(b)(2). Both federal and local civil rules require counsel of record and all unrepresented parties to confer with one another well in advance of the CMC in an effort to agree in good faith upon the items listed in the agenda, including a track assignment and discovery schedule. See Local Rule 16.3(b)(3); Fed. R. Civ. P. 26(f). This conference is called the “Planning Meeting.” The local and federal civil rules place responsibility for arranging the Planning Meeting jointly on the parties; however, to avoid confusion, the undersigned places the ultimate burden of arranging the Planning Meeting on counsel for Plaintiff(s). In addition to reviewing the agenda items listed in Local Rule 16.3(b)(2) at the Planning Meeting, counsel must determine whether there will be discovery of electronically stored information, or E-discovery. If counsel anticipate E-discovery, they must decide upon a method 2 for conducting such discovery or they must agree to abide by the default standard set forth in Appendix K to the Local Rules. See Attachment 2. The Court also requires Plaintiff(s) to make a demand upon Defendant(s) with a written description and monetary breakdown of the damages claimed, and Defendant(s) to respond with a counteroffer – all well before the CMC. Attached to this Order is a form entitled “Report of the Parties’ Planning Meeting.” Attachment 3. Counsel shall jointly report the results of the Planning Meeting to the Court by filling in the form and adding the information about the demand, the counteroffer and E- discovery (if applicable). After counsel sign the Report, Plaintiff’s counsel shall file the Report and fax a copy of it to Chambers (216-357-7195) no later than 12:00 p.m. on _________. V. THE CASE MANAGEMENT CONFERENCE The Court will review the Report of the Parties’ Planning Meeting, evaluate the case in accordance with Local Rule 16.2(a)(1), assign it to one of the case management tracks described in Local Rule 16.2(a)(2), and issue a Case Management Plan. VI. DISCOVERY A. INITIAL DISCLOSURES With the exception of certain cases enumerated in Fed. R. Civ. P. 26(a)(1)(B),2 parties must, without awaiting a discovery request, provide to opposing parties the initial disclosures set forth in Fed. R. Civ. P. 26(a)(1) and (2). The parties must make initial disclosures no later than 7 days before the CMC. The parties must file copies of the initial disclosures with the Court at least 2 days before the CMC. B. FORMAL DISCOVERY The moratorium on formal discovery prior to the Rule 26(f) conference, set forth in Fed. R. Civ. P. 26(d)(1), is hereby extended until after the CMC with the following exceptions: 2The following categories of proceedings are exempt from the initial disclosure requirements of Rule 26(a)(1): reviews of administrative decisions, federal forfeiture cases, habeas petitions, pro se prisoner civil rights cases, actions to enforce or quash an administrative summons or subpoena, government collection cases, miscellaneous proceedings, and actions to enforce arbitration awards. 3 (1) disclosures required by Fed. R. Civ. P. 26(a), (2) early Rule 34 requests addressed by Fed. R. Civ. P. 26(d)(2), and (3) discovery that is necessary and appropriate to support or defend against any challenge to jurisdiction or claim for emergency relief, whether temporary or preliminary. C. FILING OF DISCOVERY MATERIALS Unless otherwise ordered by the Court, discovery depositions, interrogatories, requests for documents, requests for admissions, and answers and responses thereto shall not be filed with the Clerk’s Office, except that discovery materials may be filed as evidence in support of a motion or for use at trial. If a party intends to rely on deposition testimony in support of its position on a motion, the Court prefers the filing of the entire deposition rather than excerpts, unless the party truly believes that excerpts are sufficient, and with the proviso that any other party who believes the excerpts offered are not sufficient is free to file the entire deposition. In any event, discovery material submitted in support of any party’s position shall be filed at the same time as that party’s memorandum setting forth its position. VII. ELECTRONIC FILING The U.S. District Court for the Northern District of Ohio requires attorneys in civil cases to file documents with the Court electronically over the Internet through its Case Management / Electronic Case Files (CM/ECF) system. The Court orders that all further documents, notices and orders in this matter be filed electronically rather than on paper, except as provided in The Electronic Filing Policies and Procedures Manual, which is Appendix B to the Local Rules. The Manual provides helpful information on system requirements and usage. Notice of filings are sent electronically. It is the responsibility of each counsel of record to set up a user account to receive e-mail notice of court filings and to check his or her e-mail box on a regular basis. Directions for setting up e-mail notice can be accessed at the following link: www.ohnd.uscourts.gov/Electronic_Filing/electronic_filing.html The Office of the Clerk of Court has established an Electronic Filing Help Desk to answer questions and provide assistance if needed. The Help Desk number is 1-800-355-8498. 4 VIII. COURTESY COPIES Chambers will not accept courtesy copies of pleadings or memoranda unless expressly requested by the Court, with the following exception. Any pleadings or memoranda filed within two (2) business days of a conference/hearing/trial shall be filed electronically via CM/ECF as well as served upon opposing counsel on the same day it is filed. IX. DEPOSITIONS PRACTICES The Judges of the Northern District of Ohio have adopted Local Rule 30.1, which governs the scheduling and taking of depositions, and which is intended to significantly decrease discovery disputes. A copy of this rule is located at Attachment 4. Counsel are expected to read this rule and comply with it. X. PRELIMINARY ESTIMATE/BUDGET OF FEES AND EXPENSES REPORT Certain claims allow for, or entitle, prevailing parties to collect attorney fees from the other party. If this case contains such a claim, each party must bring to the Case Management Conference a preliminary estimate and/or budget of the amount of fees and expenses anticipated to be the subject of any such claim. A Preliminary Estimate/Budget of Amount of Fees and Expenses form, located at Attachment 5, is provided for the parties’ convenience. Lead counsel of record shall provide a copy of this report to his or her client prior to the CMC, where the reports will be exchanged. XI. RESOLUTION PRIOR TO CMC In the event that this case is resolved prior to the CMC, counsel shall submit a jointly signed stipulation of settlement or dismissal and notify the Court immediately by telephone or fax that the same is forthcoming. IT IS SO ORDERED. Dan Aaron Polster United States District Judge 5 Understanding the Function and Purpose of United States Magistrate Judges. The backbone of an independent federal judiciary is life-tenured judges appointed under Article III of the Constitution. In America's federal trial courts, justice is administered by life-tenured District Judges, and by judges who serve fixed-terms: United States Magistrate Judges and United States Bankruptcy Judges. This brochure illuminates the function and purpose of United States Magistrate Judges who are independent judges serving federal district courts in an adjunct capacity by dealing with cases, or parts of cases, assigned to them by district judges. Title and Manner of Addressing a United States Magistrate Judge. • The official title of these judges is"United States Magistrate Judge." • A United States Magistrate Judge should be addressed, orally and in writing, as ''Judge______ ," to be consistent with the position's judicial role and official title as prescribed by law. • Although some state courts have a judicial officer called a "magistrate," that title as applied to a United States Magistrate Judge is obsolete. To address these judges simply as "Magistrate" is akin to improperly addressing a Lieutenant Colonel as "Lieutenant," or a Bankruptcy Judge as "Bankruptcy." United States Magistrate Judges Their Function And Purpose In Our Federal Courts A Publication of Federal Magistrate Judges Association Answers to Some Commonly Asked Questions. Q: What are the standards for selecting a federal magistrate judge? A: To be appointed as a magistrate judge, an individual must: • • • • have been a member in good standing of the bar of the highest court of a State, District, Territory, or Commonwealth of the United States for at least five years; be determined by the appointing district court to be competent to perform the duties of the office; be unrelated to a judge of the appointing court; and be selected pursuant to standards promulgated by the Judicial Conference of the United States. Q: Are a party’s rights affected when litigants consent to have a magistrate judge hear a case? A: Consenting to jurisdiction of a magistrate judge does not eliminate substantive or procedural rights litigants would otherwise have before a district judge. For example, parties retain their right to have a jury trial. Q: Do magistrate judges handle many civil jury cases? A: Yes. In 1999, magistrate judges conducted approximately 21 percent of the civil jury trials in United States district courts. When all parties consent, magistrate judges may conduct trials and enter judgments in civil cases of any type or size. Q: What’s the difference between a Q: Do magistrate judges handle many criminal cases? A: Yes. With consent of defendants, magistrate judges may preside in Class A misdemeanor cases, including conducing jury trials. In 1999, magistrate judges terminated 10,733 Class A misdemeanor cases. Although magistrate judges do not preside at felony trials, They may also conduct preliminary and post-conviction proceedings in felony cases. Magistrate judges may conduct trials that dispose of all petty offense cases with the defendant’s consent. district court judge and a “magistrate judge’s court”? A: There is no “magistrate court.” Both district and magistrate judges preside in United States District courts created under Article III of the Constitution. Q: What’s the difference between district and magistrate judges? A: District judges are life-tenured judges nominated by the President and confirmed by the Senate. Magistrate judges are fixed-term judges appointed by district judges for eight-year renewable terms via a merit selection process. Q: How do civil litigants request trial before magistrate judges? A: All parties must consent in writing and the case must be officially transferred by the district judge. Forms are available from the Clerk of Court. The Role of Magistrate Judges. A Historic Overview. United States Magistrate Judges are generalist judges with a broad range of responsibilities. While their duties may vary with the specific needs of each district court, Magistrate Judges handle a wide array of federal civil and criminal cases nation wide. A sampling of the judicial functions performed by Magistrate Judges demonstrates the potential breadth of their authority: • • • • • • • • • Presiding at civil jury trials by consent of the parties and entering judgments; Presiding at criminal misdemeanor jury trials by consent of the parties and imposing sentences; Pretrial case management in complex civil cases; Conducting preliminary proceedings in all criminal cases; Conducting settlement conferences; Hearing and determining pretrial motions; Hearing and recommending disposition of summary judgment and other case dispositive motions; Reviewing prisoner suits collaterally attacking convictions or complaining of conditions of confinement; and Issuing arrest and search warrants. The United States magistrate judge system evolved from the United States commissioner system established in 1793. In 1965, Congress conducted an exhaustive examination of the commissioner system. Witnesses overwhelmingly favored overhauling the system and enhancing the commissioner position. The Federal Magistrates Act of 1968 created the position named United States magistrate to denote the break with the commissioner system. The Act increased the criminal trial jurisdiction of these new judicial officers over that of commissioners, and also authorized the new officers to assist judges of district courts in handling a wide range of proceedings in civil and criminal cases. In 1976, 1979 and 2000, further amendments were enacted which specifically: • • • • • • Authorized magistrate judges to try any civil case upon consent of the parties and to order the entry of final judgment; Expanded trial jurisdiction of magistrate judges to all federal misdemeanors; Required that magistrate judges be selected and appointed in accordance with regulations promulgated by the Judicial Conference of the United States; Expanded magistrate judges' civil and criminal contempt authority; Gave magistrate judges plenary authority in Class B and C misdemeanor cases without the consent of the defendant; and Gave magistrate judges authority to sentence juvenile defendants to terms of imprisonment in misdemeanor cases. UNITED STATES DISTRICT COURT Northern District of Ohio Plaintiff v. CONSENT TO EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE AND ORDER OF REFERENCE Case Number: Defendant CONSENT TO EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE In accordance with the provisions of 28 U.S.C. 636(c) and Fed. R. Civ. P. 73, the parties in this case hereby voluntarily consent to have a United States magistrate judge conduct any and all further proceedings in the case, including the trial, and order the entry of a final judgment. Signatures Party Represented Date ORDER OF REFERENCE IT IS HEREBY ORDERED that this case be referred to United States Magistrate Judge, for all further proceedings and the entry of judgment in accordance with 28 U.S. C. 636(c), Fed.R.Civ.P. 73 and the foregoing consent of the parties. Date United States District Judge NOTE: RETURN THIS FORM TO THE CLERK OF THE COURT ONLY IF ALL PARTIES HAVE CONSENTED ON THIS FORM TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE. UNITED STATES DISTRICT COURT Northern District of Ohio NOTICE & ORDER Pursuant to 28 U.S.C. §636(c)(1) and LR 73.1, a Magistrate Judge of the Northern District of Ohio may, upon consent of all parties to an action, and entry of an order of reference by the Judge, exercise trial jurisdiction in civil actions, both jury and non-jury, and enter final judgment therein. If all parties to this action consent and an order of reference is entered, the case will be assigned to a Magistrate Judge pursuant to LR 73.1. If all parties do not consent, or if an order of reference is not entered, the action will remain with the Judge to whom it is assigned. The decision of counsel on this matter of consent is entirely voluntary. Your response is joint, and disclosure of individual decisions is not required. Pursuant to Local Civil Rule 73.1, Recusal, Resignation or Death of Magistrate Judge, where the parties have consented of the transfer of a civil case to a Magistrate Judge under section (a) above, if the Magistrate Judge thereafter recuses, resigns or dies, the case shall be returned to the District Court Judge. The Clerk shall immediately assign another Magistrate Judge by the random draw and notify the parties of such new assignment. Within ten (10) days after such notification by the Clerk, the parties shall indicate their consent, or lack thereof, to transferring the case to the newly-assigned Magistrate Judge under 28 U.S.C. §636(c). If the parties do not consent to the transfer, the case shall remain with the District Court Judge. At the time the last appearance of counsel is made on behalf of the named defendant, the parties are to communicate with each other on this matter. It is the responsibility of plaintiff’s counsel to initiate such consultation. The response is to be returned within ten (10) days of the last appearance. The response must contain the signatures of all counsel. Pursuant to 28 U.S.C. §636(c)(3) all appeals relating to magistrate consent cases must be heard only in the court of appeals. Please file the proposed consent electronically using the civil event "Notice". Parties representing themselves should sign and send form to the Clerk's Office. If an order of reference is entered by the Court, you will be advised by the Clerk as to which Magistrate Judge the has been assigned for further proceedings. Sandy Opacich Clerk of Court (See form on the reverse side) o:\forms\consent.pdf revised March 2008 Attachment 2 Attachment 3 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO Plaintiff(s), Defendant(s). ) v. CASE NO. JUDGE DAN AARON POLSTER REPORT OF PARTIES’ PLANNING MEETING UNDER FED.R.CIV.P. 26(f) AND LR 16.3(b)(3) 1. Pursuant to Fed.R.Civ.P. 26(f) and LR 16.3(b)(3), a meeting was held on , 200 , and was attended by: , Counsel for plaintiff(s) , Counsel for plaintiff(s) , Counsel for defendant(s) , Counsel for defendant(s) 2. The parties: have not been required to make initial disclosures. have exchanged the pre-discovery disclosures required by Fed.R.Civ.P. 26(a)(1) And the Court’s prior order; Expedited Standard Complex Administrative Mass Tort 4. This case is suitable for one or more of the following Alternative Dispute Resolution (ADR) mechanisms: Early Neutral Evaluation Mediation Arbitration Summary Jury Trial Summary Bench Trial Case not suitable for ADR 5. The parties do do not consent to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). 6. The parties agree that this case does does not involve electronic discovery. 7. Recommended Discovery Plan (Counsel are reminded to review the default standard for e-discovery set forth in Appendix K to the Local Rules): (a) Describe the subjects on which discovery is to be sought, the nature and extent of discovery and any potential problems: (b) Describe anticipated e-discovery issues (i.e., what ESI is available and where it resides; ease/difficulty and cost of producing information; schedule and format of production; preservation of information; agreements about privilege or work-production protection, etc.): 2 (c) Describe handling of expert discovery (i.e., timetable for disclosure of names and exchange of reports, depositions): (d) Discovery Deadlines: (i) Liability: (ii) Damages 8. 9. Recommended dispositive motion date: Recommended cut-off for amending the pleadings and/or adding additional parties: 10. Recommended date for status hearing and/or final pretrial settlement conference: 11. Other matters for the attention of the Court: Attorney for Plaintiffs: /s/ Attorney for Defendants: /s/ 3 Attachment 4 Rule 30.1 Conduct at Depositions (a) Witnesses, parties, and counsel must conduct themselves at depositions in a temperate, dignified, and responsible manner. (b) The following guidelines for the taking of depositions emphasize the expectations of the Court as to certain issues; they are intended to supplement Fed. R. Civ. P. 26 and 30. (1) Scheduling. Counsel are expected to make a timely and good faith effort to confer and agree to schedules for the taking of depositions. Unless counsel otherwise agree, depositions must be conducted during normal business hours. Except where good cause exists, no Notice of Deposition or Subpoena can issue prior to a scheduling conference with opposing counsel. Counsel for the deponent must not cancel a deposition without stipulation of the examining counsel or order of the Court. (2) Decorum. Opposing counsel and the deponent must be treated with civility and respect. Ordinarily the deponent must be permitted to complete an answer without interruption by counsel. (3) Objections. Objections must be limited to (a) those that would be waived if not made pursuant to Fed. R. Civ. P. 32(d)(3) and (b) those necessary to assert a privilege, enforce a limitation on evidence directed by the Court or present a motion under Fed. R. Civ. P. 30(d)(3). No other objections can be raised during the course of the deposition. In the event privilege is claimed, examining counsel may make appropriate inquiry about the basis for asserting the privilege. (4) Speaking Objections. Speaking objections that refer to the facts of the case or suggest an answer to the deponent are improper and must not be made in the presence of the deponent. (5) Witness Preparation. Preparation of the deponent must be completed prior to the taking of the deposition. While a question is pending, counsel for the deponent and the deponent must not confer, except for the purpose of deciding whether to assert a privilege. (6) Documents. Examining counsel must provide counsel for the deponent with copies of all documents shown to the deponent during the deposition. (7) Disputes. Counsel must comply with Local Rule 37.1 as to any disputes arising in connection with the taking of a deposition. Last revised 9/23/02. See Historical Notes for full revision history. Attachment 5 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION , Plaintiff(s), vs. , Defendant(s). JUDGE DAN A. POLSTER CASE NO. PRELIMINARY ESTIMATE/ BUDGET OF AMOUNT OF FEES AND EXPENSES The following is a preliminary estimate and/or budget of the Plaintiff’s / Defendant’s (circle one) anticipated to be the subject of a claim in this case. Attorney’s Fees Preliminary Investigation & Filing Complaint Costs $ Deposition $ Procedural Motion s Practice $ Experts $ Discovery $ Witness Fees $ Dispositive Motions Practice $ Juror Fees $ Settlement Negotiations $ Other $ Trial $ TOTAL FEES $ TOTAL COSTS $

=== Case Management Plan ===

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION , Plaintiff(s), vs. JUDGE DAN A. POLSTER CASE NO. , Defendant(s). CASE MANAGEMENT PLAN 1. 2. A Case Management Conference was held on . After consultation with the parties and counsel, the Court determined that this case will proceed on the track. 3. The case was referred to Alternative Dispute Resolution (ADR): Yes No Decision delayed If yes, by the following ADR process: Early Neutral Evaluation / Mediation / Arbitration / Summary Jury Trial / Summary Bench Trial. 4. The parties did not consent to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. §636(c) at this time. 5. Discovery cutoff date: . Discovery shall be conducted according to the guidelines set forth in Local Rule 16.2(a) for cases assigned to this track with the following exceptions: Discovery Materials: No discovery materials shall be filed without leave of Court, except as necessary to support dispositive motions. If a party intends to rely on deposition testimony in support of its position on a motion, the Court prefers the filing of the entire deposition rather than excerpts, unless the party truly believes that excerpts are sufficient, and with the proviso that any other party who believes the excerpts offered are not sufficient is free to file the entire deposition. In any event, discovery material submitted in support of any party’s position shall be filed at the same time as that party’s memorandum setting forth its position. Discovery disputes: Counsel shall comply with Local Rule 7 before filing discovery motions under Fed. R. Civ. P. 37. The order for resolving discovery disputes under this rule is (1) good faith resolution efforts by counsel, (2) telephone conference call with the Court, triggered by a short letter to the Court from counsel, (3) position letters (not to exceed 2 pages) to the Court, and (4) Fed. R. Civ. P. 37 discovery motion. 6. Dispositive motions deadline: . Briefing schedule: Counsel are directed to follow the briefing schedule set forth at Local Rule 7.1 and 7.2 for dispositive motions. That is, each party shall serve and file a memorandum in opposition to a dispositive motion within thirty (30) days after service of the motion. The moving party may serve and file a reply memorandum in support of its motion within ten (10) days after service of the memorandum in opposition, excluding intermediate Saturdays, Sundays, and legal holidays. Pursuant to Fed. R. Civ. P. 6(e), three (3) days shall be added to the prescribed period if service is by mail. No surreplies will be permitted absent advance leave of Court. Page Limitations: The Court will strictly enforce provisions regarding length of memoranda filed in support of motions. See Local Rule 7.1(g). Motions for relief from the length restrictions must show good cause for such relief and must be made sufficiently in advance to permit the Court to rule and the Clerk’s Office to issue the ruling by regular mail. Motions for relief from length restrictions which are filed contemporaneously with the memorandum exceeding the page limits will be denied. In no event shall the request to exceed page limitations extend the time for filing of the underlying memorandum. Courtesy copies: Chambers will not accept courtesy copies of pleadings or 2 memoranda unless expressly requested by the Court. Exception: Any pleadings or memoranda filed within two (2) business days of a conference/hearing/trial shall be faxed to the Court as well as opposing counsel on the same day it is filed. The Court’s fax number is 216-357-7195. 7. 8. The deadline for amending pleadings and adding parties: . A telephone conference call, initiated by counsel for plaintiff, will be held in this matter on . 9. A Settlement Conference, at which time the rial and final pretrial conference dates will be determined, is scheduled for at a.m. Counsel and parties must attend and be prepared to discuss settlement. If a party is a corporation or other legal entity, a person with full settlement authority must be present. . Status/Settlement Report: Counsel shall confer in person or by phone within seventy-two (72) hours of the status hearing or settlement conference to outline and, if possible, resolve pending matters before the hearing. , each counsel shall FAX to the Court (but not file or exchange) a concise (not to exceed 5 pages) status/settlement report describing: (a) (b) (c) and (d) a brief overview of the material facts, the status of discovery including any outstanding discovery issues, the status of settlement negotiations setting forth a demand and corresponding offer. Plaintiff(s) shall have prepared a written description and monetary breakdown of damages claimed. a statement of issues to be addressed by the Court including any pending motions. The Court’s fax number is 216-357-7195. 10. Correspondence with the Court: Parties and counsel are advised that non-motion or pleading correspondence directed to the Court will not be filed and docketed, but will be maintained inside the case file which is public record (with the exception of the Status/Settlement Report described in item #9). 11. Interim Requests for Status Conference: Parties wishing a conference before the Court on any issues other than discovery disputes (which are covered under paragraph 5 of this Plan) must submit a letter to the Court: (a) (b) certifying that counsel have made a good faith effort to resolve those issues, and outlining the issue(s) requiring the Court’s attention. 3 12. Conduct of counsel: Pursuant to the Statement on Professionalism issued by the Supreme Court of Ohio on February 3, 1997, counsel are directed to be courteous and civil in all oral and written communications with each other and the Court. Pleadings which do not conform to this standard will be rejected. Case Management Plan Acknowledged By: Counsel for Plaintiff(s) Counsel for Defendant(s) IT IS SO ORDERED. Dan Aaron Polster U.S. District Judge 4

=== Civil Trial Order ===

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION ) Case No.: Plaintiff(s), v. JUDGE DAN AARON POLSTER ) TRIAL ORDER CIVIL JURY Defendant(s). This case is scheduled for a Jury Trial on , in the courtroom of the Honorable Dan A. Polster, Courtroom 18B of the Carl B. Stokes United States District Courthouse, 801 W. Superior Ave., Cleveland, Ohio. The Final Pretrial is scheduled for , in chambers of Judge Polster, Chambers 18B of the Carl B. Stokes United States District Courthouse, 801 W. Superior Ave., Cleveland, Ohio. Pursuant to Local Rule 16.3(e), the parties and lead counsel of record must be present and prepared with full authority to discuss all aspects of the case, including any pending motions, witness and exhibit lists, scheduling and settlement. Counsel are to have conferred with their clients, and with each other, regarding their final settlement posture no later than two (2) business days before the final pretrial. Opening statements and the presentation of evidence will begin as soon as the jury has been selected. Each side shall have hours total in which to conduct its direct and cross examinations, rebuttal and sur-rebuttal cases. Counsel are directed to plan their trial strategy accordingly. The following instructions will govern the operation of the trial and the obligations of parties and their counsel: 1. TRIAL DAYS Trials will begin at 9:00 a.m. and continue until 5:30 p.m., unless circumstances dictate otherwise. A one (1) hour lunch break and two (2) fifteen minute breaks will be provided for. Counsel must notify the Court’s staff of issues to be addressed by the Court outside the presence of the jury so that trial may proceed with as few interruptions as possible. Accordingly, counsel should expect to be present in the courtroom from 8:30 a.m. in order to address matters outside the presence of the jury. All parties are to be present in the courtroom at all times when the jury is seated. 2. STIPULATIONS OF FACT AND PRELIMINARY STATEMENTS Counsel for the parties shall confer with one another in order to prepare written stipulations as to all uncontested facts to be presented at trial to the jury or to the Court, as the case may be. Stipulations of fact are strongly encouraged in order to eliminate the need for testimony of witnesses to facts which are not in dispute. Said stipulations shall be filed with the Court no later than . Counsel shall also prepare and submit a Joint Preliminary Statement (not to exceed 1 page) describing the case in an impartial, easily understood and concise manner for use by the Court either during voir dire or at the time the jury is impaneled. This statement will be used to set the context of the trial for the jury and shall be delivered or faxed to chambers no later than . 3. TRIAL BRIEFS; MOTIONS in limine WITNESS AND EXHIBIT LISTS Trial briefs, witness lists, exhibit lists and Motions in Limine, if any, shall be filed, exchanged and a copy delivered to chambers by Counsel are directed to confer with each other to resolve any objections to witnesses or exhibits they have. (An exchange of proposed exhibits must be made at least one week prior to this deadline in order for opposing counsel to evaluate them and be able to make appropriate objections.) A complete trial brief includes: (a) a statement of the facts; (b) a complete discussion of the controlling law together with specific citations of statutes and case law; and (c) a discussion of any evidentiary issues likely to arise at trial. Together with the trial brief, the parties shall also file and exchange their proposed witness and exhibit lists. The lists shall provide a brief description and the purpose of each witness, and shall list and briefly describe each item of documentary or physical evidence which is to be offered. Each attorney shall have a continuing obligation to supplement the party’s list immediately upon learning of any additional witness. Witnesses not listed as part of the trial brief or provided 2 before the trial starts shall not testify at trial, and exhibits not listed in the trial brief shall not be introduced at trial, absent a showing of good cause. This rule applies to lay witnesses as well as to expert witnesses. 4. OBJECTIONS TO WITNESSES OR EXHIBITS Only those objections to a proposed witness or exhibit that have not been resolved among counsel shall be filed, exchanged and a copy delivered to chambers no later than one (1) business day prior to the final pretrial. Such objections shall include a brief statement setting forth reasoning why the proposed witness or exhibit should not be permitted or admitted, as well as specific citations to pertinent case law or other legal authority. 5. MARKING OF EXHIBITS Exhibits shall be marked before trial with exhibit stickers and shall be listed on the attached exhibit chart. Exhibit stickers are available from the clerk's office upon request. Plaintiff shall mark exhibits with numbers beginning with 1, and the defendant shall mark exhibits with numbers beginning with 1001 (e.g., “Pl. Ex. 1" and “Deft. Ex. 1001”). If there are multiple parties, the party's last name should precede the numbers or letters (e.g., "Pl. Smith-1" or "Deft. Jones-1001"). Joint exhibits are strongly encouraged and shall be marked “Joint Ex. 1,” “Joint Ex. 2,” etc. Where more than ten (10) exhibits are offered by a party, it is required that counsel place all exhibit sets in a three-ring loose-leaf binder/notebook with appropriately marked divider tabs and a table of contents. Two (2) copies of all exhibits shall be furnished to the Court no later than two (2) business days prior to the trial date. Exhibits themselves will not be filed with the Clerk of Court. 6. VOIR DIRE The Court will conduct initial voir dire of the panel and of individual panel members. The Court will thereafter allow one counsel for each party to question the panel briefly on issues not addressed by the Court. The jury clerk will send a juror questionnaire to each prospective juror. The completed questionnaire will be available for review by counsel in Room 18B of the Federal 3 Courthouse on the morning of trial. Proposed voir dire questions for the Court's questioning are to be exchanged and a copy delivered (or faxed) to chambers no later than . 7. DEPOSITION TESTIMONY Whenever depositions (videotape or written) are intended to be used as evidence at trial, counsel proposing to use such deposition testimony shall provide opposing counsel with pertinent transcript references no later than , Counsel shall consult in an effort to resolve any objections they may have to planned deposition testimony. No later than seven (7) days thereafter, counsel shall file, exchange and deliver to chambers a copy of only those objections that have been raised and not resolved. The brief shall contain citations t any applicable legal authority. Counsel shall attach and highlight the deposition portions objected to, and not the objections in the margin. No later than two (2) business days before trial, counsel is instructed to notify the Court Room Deputy, in writing, of those deposition transcripts that will be read into the record in order that the original transcripts be made available for the Court When videotape depositions will be presented in lieu of live testimony, counsel must file a complete written transcript of the videotape deposition prior to its use and follow Local Rule 32.1. 8. JURY INSTRUCTIONS AND INTERROGATORIES Counsel are required to provide jury instructions to the Court only on the issues of the law that are the subject of the trial. The Court will provide general boiler-plate instructions on issues such as credibility, etc. Counsel shall also provide proposed juror interrogatories and verdict forms. Counsel shall exchange proposed jury instructions and interrogatories no later than ten (10) calendar days before the final pretrial. Counsel shall then confer regarding their respective proposals and make diligent efforts to reach agreement upon a set of joint jury instructions. No later than , a single joint submission shall be filed and delivered (or faxed) to the Court providing: (1) agreed upon instructions and interrogatories; 4 (2) instructions and/or interrogatories proposed by plaintiffs, but opposed by defendants; and (3) instructions and/or interrogatories proposed by defendants, but opposed by plaintiffs. The joint submission shall be provided to the Court as one document, divided by the above-described sections. All proposed instructions shall be supported by citations to legal authority. Any and all objections to proposed jury instructions must be accompanied by a statement or reasoning why the Court should not give such instruction. The objection must similarly be accompanied by citation to legal authority. A mere statement of “objection” is not sufficient and will not be considered. The single joint submission of jury instructions and interrogatories to the Court shall be made in writing as well as produced on a CD. In addition, the Joint Preliminary Statement, Proposed Voir Dire Questions, and Witness List shall also be provided on the same diskette. The CD should be formatted for an IBM compatible computer. The Court is equipped with WordPerfect X6. The CD shall delivered to chambers at the Final Pretrial. 9. SPECIAL INSTRUCTIONS TO COUNSEL Any and all motions, responses, stipulations, objections, pleadings or memoranda filed or required within two (2) business days of any settlement conference, hearing, final pretrial, or trial, shall be FAXED to the Court as well as to opposing counsel on the same day it is filed. The Court’s fax number is 216-357-7195. 10. CONDUCT OF COUNSEL Pursuant to the Statement on Professionalism issued by the Supreme Court of Ohio on February 3, 1997, counsel are directed to be courteous and civil in all oral and written communications with each other and the Court. Pleadings or any other communications which do not conform to this standard will be rejected. IT IS SO ORDERED. DAN AARON POLSTER UNITED STATES DISTRICT JUDGE 5 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION Case No. JUDGE DAN AARON POLSTER Plaintiff, v. Defendant. PLAINTIFF/DEFENDANT EXHIBITS EXHIBIT NO. DESCRIPTION I.D. OFFERED OBJ ADMITTED NOT ADMITTED 6 EXHIBIT NO. DESCRIPTION I.D. OFFERED OBJ. ADMITTED NOT ADMITTED 7 TIME LINE OF OBLIGATIONS UNDER THIS TRIAL ORDER Ten (10) calendar days before Final Pretrial 1) 2) Exchange proposed jury instructions and interrogatories with opposing counsel in order to then confer and arrive at agreed upon joint instructions and interrogatories. Counsel proposing to use deposition testimony must provide opposing counsel with pertinent transcript references. Counsel are directed to confer with each other to resolve any objections they may have. By 1) 2) 3) 4) 5) File and deliver (or fax) to chambers a joint submission of proposed jury instructions and interrogatories setting forth (1) agreed upon instructions & interrogatories; (2) instructions & interrogatories proposed by plaintiffs, but opposed by defendants; and (3) instructions & interrogatories proposed by defendants, but opposed by plaintiffs. The materials shall be arranged in one complete document. File and exchange only those objections to proposed deposition testimony that they have been unable to resolve. Deliver (or fax) a copy to chambers. File a Joint Preliminary Statement (not to exceed 1 page), and deliver (or fax) copy to chambers. File Stipulations of Fact, and deliver (or fax) a copy to chambers. File and exchange Motions in Limine, trial briefs, proposed witness and exhibit lists, and proposed voir dire questions, and deliver (or fax) two (2) copies of all to chambers. Counsel are directed to confer with each other to resolve any objections they may have to proposed witnesses or exhibits. 6) File, exchange and fax to chambers One (1) business day before Final Pretrial 1) File, exchange and fax to chambers only those unresolved objections to proposed exhibits and/or witnesses. Two (2) business days before Final Pretrial Counsel to confer with their clients, and with each other, regarding their final settlement posture. Final Pretrial Conference Bring a CD with jury instructions and interrogatories. The diskette shall also contain the Joint Preliminary Statement, Proposed Voir Dire Questions, and Witness List. Two (2) business days before Trial 1) 2) Notify Courtroom deputy of those deposition transcripts to be used at trial. Submit to the Court two (2) copies of trial exhibits organized in a three-ring looseleaf binder. 8

=== Criminal Trial Order ===

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION UNITED STATES OF AMERICA Plaintiff, v. CASE NO.: CRIMINAL JURY TRIAL ORDER JUDGE DAN AARON POLSTER Defendant(s). ) A Pretrial Conference is scheduled for , in the courtroom of Judge Polster, Courtroom 18B of the United States District Courthouse, 801 W. Superior Ave., Cleveland, Ohio. Lead counsel of record must be present and prepared with full authority to discuss all aspects of the case, including any pending motions and trial schedule. The Defendant must be present. A PLEA PURSUANT TO A WRITTEN PLEA AGREEMENT MUST BE TAKEN BY THIS DATE. A Final Pretrial is scheduled for , in the courtroom of Judge Dan A. Polster, Courtroom 18B of the United States District Courthouse, 801 W. Superior Ave, Cleveland, Ohio . Lead counsel of record must be present and prepared with full authority to discuss all aspects of the case, including any pending motions, jury instructions, witness and exhibit lists. The defendant also must be present. This case is scheduled for a Jury Trial , in the courtroom of Judge Dan A. Polster, Courtroom 18B of the United States District Courthouse, 801 W. Superior Ave, Cleveland, Ohio. The following instructions will govern the operation of the trial and the obligations of parties and their counsel: 1. TRIAL DAYS Trials will begin at 9:00 a.m. and continue until 5:30 p.m., unless circumstances dictate otherwise. A one (1) hour lunch break and two (2) fifteen minute breaks will be provided for. Counsel must notify the Court’s staff of issues to be addressed by the Court outside the presence of the jury so that trial may proceed with as few interruptions as possible. Accordingly, counsel should expect to be present in the courtroom from 8:30 a.m. until 5:30 p.m. in order to address matters outside the presence of the jury. All parties are to be present in the courtroom at all times when the jury is seated. 2. STIPULATIONS OF FACT AND PRELIMINARY STATEMENTS Counsel for the parties shall confer with one another in order to prepare written stipulations as to all uncontested facts to be presented at trial to the jury or to the Court, as the case may be. Stipulations of fact are strongly encouraged in order to eliminate the need for testimony of witnesses to facts which are not in dispute. Said stipulations shall be signed by both counsel as well as the defendant, filed with the Court and emailed to the Court’s chambers no later no later than three (3) business days prior to the final pretrial conference date. The fax number for the Court’s chambers is 216-357-7195. Counsel shall also prepare and submit a Joint Preliminary Statement (not to exceed 2 pages) describing the case in an impartial, easily understood and concise manner for use by the Court either during voir dire or at the time the jury is impaneled. This statement will be used to set the context of the trial for the jury and must be emailed to chambers no later than three (3) business days prior to the final pretrial conference date. 3. MOTIONS, TRIAL BRIEFS, EXHIBIT LISTS, WITNESS LISTS Motions other than Motions in Limine shall be filed within thirty (30) days following the date of arraignment. Trial briefs, exhibit lists and any Motions in Limine, shall be filed, exchanged by hand delivery, email or fax, and emailed to chambers no later than three (3) business days prior to the final pretrial conference date A complete trial brief includes: (a) a statement of the 2 facts; (b) a complete discussion of the controlling law together with specific citations of statutes and case law; and (c) a discussion of any evidentiary issues likely to arise at trial. Witness lists shall be emailed to chambers (do not file or exchange) no later than three (3) business days prior to the final pretrial conference date. The witness lists shall provide a brief description and the purpose of each witness, and shall list and briefly describe each item of documentary or physical evidence which is to be offered. Each attorney shall have a continuing obligation to supplement the party’s exhibit and witness lists immediately upon learning of any additional witness. Exhibits not identified and exchanged prior to trial shall not be introduced at trial, absent a showing of good cause. This rule applies to lay witnesses as well as to expert witnesses. 4. OBJECTIONS Any objections to a proposed exhibit shall be filed, served, and emailed to chambers no later than 12:00 p.m. noon one (1) business day before the final pretrial conference. Such objections shall include a brief statement as to why the proposed witness exhibit should not be permitted or admitted, as well as, specific citations to pertinent case law or other legal authority. 5. MARKING OF EXHIBITS Exhibits shall be marked before trial with exhibit stickers and shall be listed on the attached exhibit chart. Exhibit stickers are available from the clerk's office upon request. Plaintiff shall mark exhibits with numbers beginning with 1, and the defendant shall mark exhibits with numbers beginning with 1001. (e.g., “Pl. Ex. 1" and “Deft. Ex. 1001”) All exhibits must indicate the case number on the bottom portion of the exhibit sticker. If there are multiple parties, the party's last name should precede the numbers or letters (e.g., "Pl. Smith-1" or "Deft. Jones-1001"). Joint exhibits are strongly encouraged and shall be marked “Joint Ex. 1,” “Joint Ex. 2,” etc. Whenever a multi-page exhibit is used, each page of the exhibit must be separately numbered. For example, if Plaintiff’s Exhibit 1 is a three-page document, the first page should be marked as Pl. Ex. 1-1, the second page marked as 1-2, and the third page marked as 1-3. Where more than ten (10) exhibits are offered by a party, it is required that counsel place all 3 exhibit sets in a three-ring loose-leaf binder/notebook with appropriately marked divider tabs and a table of contents. Two (2) copies of all exhibits and the exhibit chart shall be furnished to the Court on the morning of trial. Exhibits themselves will not be filed with the Clerk of Court. 6. VOIR DIRE The Court will conduct initial voir dire of the panel and of individual panel members. The Court will thereafter allow one counsel for each party to question the panel briefly on issues not addressed by the Court. Proposed questions for the Court's voir dire must be filed, served and emailed to chambers no later than three (3) business days prior to the final pretrial conference date. 7. JURY INSTRUCTIONS Counsel are required to provide jury instructions and verdict forms to the Court only on the law applicable to the particular charges for which the defendant is on trial. The Court will provide general boilerplate instructions on issues such as credibility, burden of proof, etc. Counsel shall exchange proposed jury instructions and verdict forms no later than ten (10) calendar days prior to the final pretrial date. Counsel shall then confer regarding their respective proposals in an effort to reach an agreement regarding as many jury instructions and interrogatories as possible. A single joint submission of jury instructions and verdict forms shall be filed and hand- delivered or emailed to chambers no later than three (3) business days prior to the final pretrial conference date, providing: (1) agreed upon instructions; (2) instructions proposed by plaintiff, but opposed by defendants; and (3) instructions proposed by defendants, but opposed by plaintiffs. All proposed instructions shall be supported by citations to legal authority. Such single joint submission of jury instructions and interrogatories to the Court shall be made in writing AS WELL AS produced on a CD. The CD should be formatted for an IBM compatible computer. The Court is equipped with WordPerfect X3. When submitting the CD to the Court, to avoid accidental erasure, counsel are advised to alert the security guards when entering the building. The CD may be brought and submitted to the Court at the final pretrial 4 conference. 8. JENCKS AND RECIPROCAL JENCKS MATERIAL Unless there is a well-founded concern for the safety of the witness, the parties are strongly encouraged to provide Jencks and reciprocal Jencks material no later than the close of proceedings the day before the witness is expected to testify 9. SPECIAL INSTRUCTIONS TO COUNSEL Any and all motions, responses, stipulations, objections, pleadings or memoranda filed or required within two (2) business days of any plea, conference, hearing, final pretrial, or trial, shall be emailed to chambers as well as to opposing counsel on the same day it is filed. If and when a plea or change of plea is scheduled, the plea agreement shall be emailed or faxed to the Court not later than one day prior to the plea. 10. CONDUCT OF COUNSEL Pursuant to the Statement on Professionalism issued by the Supreme Court of Ohio on February 3, 1997, counsel are directed to be courteous and civil in all oral and written communications with each other and the Court. Pleadings or any other communications which do not conform to this standard will be rejected. IT IS SO ORDERED. DAN AARON POLSTER UNITED STATES DISTRICT JUDGE 5 TIME LINE OF OBLIGATIONS UNDER THIS TRIAL ORDER Ten (10) calendar days before Final Pretrial Conference 1) Counsel to exchange their proposed jury instructions with each other in order to then confer and arrive at agreed-upon instructions. By no later than three (3) business days prior to the final pretrial conference date 1) 2) 3) 4) 5) File and hand deliver or email to chambers a single, joint, submission of proposed jury instructions and verdict forms indicating (1) agreed upon instructions; (2) instructions proposed by plaintiff, but opposed by defendants; and (3) instructions proposed by defendants, but opposed by plaintiffs. (CD with the proposed jury instructions may be brought and submitted to the Court at the final pretrial.) Email to chambers a Joint Preliminary Statement (not more than 2 pages) describing the case in an impartial, easily understood and concise manner for use by the Court to be read to the jury. File and email to chambers Stipulations of Fact, signed by counsel and the defendant. File, exchange and email to chambers trial briefs, exhibit lists, proposed voir dire questions, and Motions in Limine. Email to chambers witness lists. One (1) business day before Final Pretrial Conference (no later than 12 noon) 1) File, exchange and email to chambers any objections to exhibits. Final Pretrial Conference 1) Bring the CD consisting of the agreed upon jury instructions and interrogatories to the final pretrial conference. Morning of Trial 1) Submit to the Court two (2) copies of trial exhibits organized in a three-ring looseleaf binder, and two (2) copies of the exhibit chart. 6 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION Case No. JUDGE DAN AARON POLSTER Plaintiff, v. Defendant. PLAINTIFF/DEFENDANT EXHIBITS EXHIBIT NO. DESCRIPTION I.D. OFFERED OBJ ADMITTED NOT ADMITTED 7 EXHIBIT NO. DESCRIPTION I.D. OFFERED OBJ. ADMITTED NOT ADMITTED 8

=== Boilerplate Civil Jury Charge ===

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION JUDGE DAN AARON POLSTER ) CASE NO. 5:00 CV 0000 JURY INSTRUCTIONS - CIVIL CASE JOHN DOE vs. JANE ROE Members of the Jury: You have now heard all of the evidence as well as the closing arguments and it is time for me to instruct you about the law you must follow in deciding this case. After I conclude my instructions, you will begin your deliberations. Duties of the Jury It is your duty as jurors to follow the law as stated in the instructions of the Court, and to apply the rules of law so given to the facts as you find them from the evidence in the case. You have two main duties as jurors. The first one is to decide what the facts are from the evidence that you saw and heard here in court. Deciding what the facts are is your job, not mine, and nothing I have said or done during this trial was meant to influence your decision about the facts in any way. Your second job is to take the law that I give you, apply it to the facts, and decide if Plaintiff has proven by a preponderance of the evidence that Defendant is liable for [claims]. It is my job to instruct you about the law, and you are bound by the oath you took at the beginning of the trial to follow the instructions that I give you, even if you personally disagree with them. This includes the instructions that I gave you during the trial, and these instructions. All the instructions are important, and you should consider them together as a whole. The lawyers have spoken about the law during final argument. But if what they say is different from what I tell you, you must follow what I say. What the Court instructs you about the law controls. Do not let any bias, sympathy or prejudice that you feel toward either side influence your decision in any way. Our system of law does not permit jurors to be governed by prejudice or sympathy or public opinion. All parties are equal in the eyes of the law. Corporations stand on equal footing, and size is not to be considered. Both the parties and the public expect that you will carefully and impartially consider all of the evidence in the case, follow the law as stated by the Court, and reach a just decision regardless of the consequences. Burden of Proof In this case, Plaintiff is required to prove all the elements of its claim by a preponderance of the evidence. This duty is known as the burden of proof. Preponderance of the Evidence Preponderance of the evidence is the greater weight of the evidence; that is, evidence that you believe because it outweighs or overbalances in your mind the evidence opposed to it. A preponderance means evidence that is more probable, more persuasive, more likely, or of greater probative value. It is the quality of the evidence that must be weighed. Quality may, or may not, be related to the quantity of witnesses. In determining whether an issue has been proved by a preponderance of the evidence, you should consider all of the evidence, regardless of who produced it. If the weight of the evidence is equally balanced, or if you are unable to determine which side of an issue has the preponderance, the party who has the burden of proof has not established such issue by a preponderance of the evidence. The evidence in this case consists of testimony, and documents and other tangible items such as hose samples that were entered into evidence. In your deliberations, you may review the documents and you may handle the hose samples or other tangible exhibits – all of which stand on equal footing with the testimony. Evidence Defined You must make your decision based only on the evidence that you saw and heard here in court. Do not let rumors, suspicions, or anything else that you may have seen or heard outside of court influence your decision in any way. The evidence in this case includes only what the witnesses said while they were testifying under oath, the exhibits that I allowed into evidence, the stipulations that the lawyers agreed to, and the facts that I have judicially noticed. Nothing else is evidence. The lawyers’ statements and arguments are not evidence. If you remember the facts differently from the way the attorneys have stated them, you should base your decision on what you remember. The lawyers’ questions and objections are not evidence. My legal rulings are not evidence. And my comments and questions are not evidence. During the trial I may have not let you hear the answers to some of the questions that the lawyers asked. And I may have ordered you to disregard things that you saw or heard, or I struck things from the record. You must completely ignore all these things. Do not even think about them. Do not speculate about what a witness might have said. You may not draw any inference from an unanswered question nor may you consider testimony which has been stricken in reaching your decision. Make your decision based only on the evidence, as I have defined it here, and nothing else. Consideration of Evidence You should use your common sense in weighing the evidence. Consider it in light of your everyday experience with people and events, and give it whatever weight you believe it deserves. If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to reach that conclusion. Direct and Circumstantial Evidence Earlier, I instructed you on the two types of evidence: “direct evidence” and “circumstantial evidence.” As you may recall, direct evidence is simply evidence like the testimony of an eyewitness which, if you believe it, directly proves a fact. If a witness testified that he saw it raining outside, and you believed him, that would be direct evidence it was raining. Circumstantial evidence is simply a chain of circumstances that indirectly proves a fact. If someone walked into the courtroom wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence from which you could conclude it was raining. Legally, there is no difference between direct and circumstantial evidence. The law does not say that one is necessarily any better evidence than the other. You should consider all the evidence, both direct and circumstantial, and give it whatever weight you believe it deserves. Inferences from Evidence The law permits you to draw reasonable inferences from the evidence that has been presented. Inferences are deductions or conclusions which reason and common sense lead the jury to draw from facts which have been established by the evidence in the case. In other words, while you should consider only the evidence in the case, you are not limited solely to what you see and hear as the witnesses testify. You are permitted to draw, from facts which you find have been proved, such reasonable inferences as you feel are justified in light of your common experience. Credibility of Witnesses You may hear the lawyers talk about the “credibility” or the “believability” of the witnesses. These words mean the same thing. Part of your job as jurors is to decide how believable each witness was. This is your job, not mine. It is up to you to decide if a witness’s testimony was believable, and how much weight you think it deserves. You are free to believe everything that a witness said, or only part of it, or none of it at all. But you should, of course, act reasonably and carefully in making these decisions. Let me suggest some things for you to consider in evaluating each witness’s testimony. (A) First, ask yourself if the witness was able to clearly see or hear the events. Sometimes even an honest witness may not have been able to clearly see or hear what was happening, and may make a mistake. (B) Next, ask yourself how good the witness’s memory seemed to be. Did the witness seem able to accurately remember what happened? (C) Next, ask yourself how the witness looked and acted while testifying. Did the witness seem to be honestly trying to tell you what happened? Or did the witness seem to be lying? (D) Next, ask yourself if the witness had any relationship to either side of the case, or anything to gain or lose that might influence the witness’s testimony. Ask yourself if the witness had any bias, or prejudice, or reason for testifying that might cause the witness to lie or to slant testimony in favor of one side or the other. (E) Next, ask yourself if the witness testified inconsistently while on the witness stand, or if the witness said or did anything off the stand that is inconsistent with what the witness said while testifying. If you believe that the witness was inconsistent, ask yourself if this makes the witness’s testimony less believable. Sometimes it may; other times it may not. Consider whether the inconsistency was about something important, or about some unimportant detail. Ask yourself if it seemed like an innocent mistake, or if it seemed deliberate. (F) Finally, ask yourself how believable the witness’s testimony is in light of all the other evidence. Was the witness’s testimony supported or contradicted by other evidence that you found believable? If you believe that a witness’s testimony was contradicted by other evidence, remember that people sometimes forget things, and that even two honest people who witness the same event may not describe it exactly the same way. These are only some of the things that you may consider in deciding how believable each witness was. You may also consider other things that you think shed some light on the witness’s believability. Use your common sense and your everyday experience in dealing with other people. And then decide what testimony you believe, and how much weight you think it deserves. Impeachment You should also ask yourself whether there was evidence tending to prove that a witness testified falsely concerning some important fact, or whether there was evidence that at some other time a witness said or did something, or failed to say or do something, which was different from the testimony the witness gave before you during the trial. You should keep in mind, of course, that a simple mistake by a witness does not necessarily mean that the witness was not telling the truth as he or she remembers it, because people naturally tend to forget some things or remember other things inaccurately. So, if a witness has made a misstatement, you need to consider whether it was simply an innocent lapse of memory or an intentional falsehood; and the significance of that may depend on whether it has to do with an important fact or with only an unimportant detail. Charts and Summaries Certain charts and summaries have been shown to you in order to help explain the facts disclosed by the books, records, and other documents which are in evidence in the records, and other documents which are in evidence in the case. However, such charts or summaries are not in and of themselves evidence or proof of the facts. If such charts or summaries do not correctly reflect facts or figures shown by the evidence in the case, you should disregard them. Opinion Evidence - Expert Witness The rules of evidence ordinarily do not permit witnesses to testify as to opinions or conclusions. An exception to this rule exists as to those whom we call “expert witnesses.” Witnesses who, by education and experience, have become expert in some art, science, profession, or calling, may state their opinions as to relevant and material matters, in which they profess to be expert, and may also state their reasons for the opinion. You should consider each expert opinion received in evidence in this case, and give it such weight as you may think it deserves. The credibility of an expert witness should be evaluated in the same manner as the credibility of any other witness. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound, or if you feel that it is outweighed by other evidence, you may disregard the opinion entirely. Number of Witnesses One more point about the witnesses. Sometimes jurors wonder if the number of witnesses who testified makes any difference. Do not make any decisions based only on the number of witnesses who testified. What is more important is how believable the witnesses were, and how much weight you think their testimony deserves. Concentrate on that, not the numbers. Lawyers’ Objections There is one more general subject that I want to talk to you about before I begin explaining the law concerning an implied warranty of merchantability. The lawyers for both sides objected to some of the things that were said or done during the trial. Do not hold that against either side. The lawyers have a duty to object whenever they think that something is not permitted by the rules of evidence. Those rules are designed to make sure that both sides receive a fair trial. And do not interpret my rulings on their objections as any indication of how I think the case should be decided. My rulings were based on the rules of evidence, not on how I feel about the case. You the jurors are the sole judges of the credibility of all witnesses, and the weight and effect of all evidence. But remember that your decision must be based only on the evidence that you saw and heard here in court. APPLICABLE LAW General To be provided by counsel Introduction to Deliberation Procedures That concludes the part of my instructions explaining the rules for considering particular testimony and evidence. Now let me explain some things about your deliberations in the jury room, and your possible verdicts. The first thing that you should do in the jury room is choose someone to be your foreperson. This person will help to guide your discussions, and will be your spokesperson for you here in court. Once you start deliberating, do not talk to the courtroom deputy or to me or to anyone else about the case. We must communicate in writing. Write down your message, have the foreperson sign it, and then give it to the courtroom deputy. He will give it to me, and I will respond as soon as I can. I may have to talk to the lawyers about what you have asked, so it may take me some time to get back to you. One more thing about messages. Do not ever write down or tell anyone how you stand on your votes. For example, do not write down or tell anyone that you are split 6-4, or 8-2, or whatever your vote happens to be. That should remain secret until you are finished. Decision Based Only Upon the Evidence Presented Remember that you must make your decision based only on the evidence that you saw and heard here in court. This means that you must not try to gather any information about the case on your own while you are deliberating. For example, do not conduct any experiments inside or outside the jury room; do not bring any books, like a dictionary, or anything else with you to help you with your deliberations; do not conduct any independent research, reading or investigation about the case; and do not visit any of the places that were mentioned during the trial. Furthermore, do not use the internet to conduct any research concerning this case. Make your decision based only on the evidence that you saw and heard here in court. Unanimous Verdict Your verdict, whether it be for Plaintiff or Defendant, must be unanimous. This means that to find for Plaintiff, every one of you must agree that Plaintiff has proved each of the essential elements of its claim(s) by a preponderance of the evidence. And to find for Defendant, every one of you must agree that Plaintiff has failed to prove each of the essential elements of its claim(s) by a preponderance of the evidence. Either way, your verdict must be unanimous. Duty to Deliberate When you enter the jury room following the arguments, you are free to talk about the case. In fact, it is your duty to talk with each other about the evidence, and to make every reasonable effort you can to reach unanimous agreement. Talk with each other, listen carefully and respectfully to each other’s views, and keep an open mind as you listen to what your fellow jurors have to say. Try your best to work out your differences. Do not hesitate to change your mind if you are convinced that other jurors are right and you are wrong. But do not ever change your mind just because other jurors see things differently, or just to get the case over with. In the end, your vote must be exactly that--your own vote. It is important for you to reach unanimous agreement, but only if you can do so honestly and in good conscience. No one will be allowed to hear your discussions in the jury room, and no record will be made of what you say. So you should all feel free to speak your minds. Listen carefully to what everyone else has to say, and then decide for yourself. Your sole interest is to seek the truth from the evidence in the case. Verdict Forms I have prepared verdict form that you should use to record your verdict. The form reads as follows: READ VERDICT FORM. You will take the verdict form to the jury room and when you have reached unanimous agreement as to your verdict, you will have your foreperson fill in and date it, and then each of you shall sign the form. Please complete the verdict form in ink. After you have signed your unanimous verdict, ring the jury buzzer and you will be returned to the courtroom as soon as we have gathered the parties and their counsel. Juror Questions You will have a copy of these instructions with you in the jury room for your assistance during your deliberations. These instructions should answer any question that you have. However, if during your deliberations you should desire to communicate with the Court, please reduce your message or question to writing, signed by the foreperson, and pass the note to the courtroom deputy, who will bring it to my attention. I will then respond as promptly as possible, either in writing or by having you returned to the courtroom so that I can address you orally. Remember at all times, you are not partisans. You are judges -- judges of the facts. Your sole interest is to seek the truth from the evidence in the case. Court Has No Opinion Let me finish up by repeating something that I said to you earlier. Nothing that I have said or done during this trial was meant to influence your decision in any way. Nothing said in these instructions is meant to suggest or convey in any way what verdict I think you should find. What the verdict shall be is the sole and exclusive duty and responsibility of the jury. What time you will begin, what time you will end your day, and when to take a break are up to you. The only limitation is that you may not begin your deliberating until all of you are present. The courtroom deputy may now escort the jurors to the jury room, taking to them the Court’s jury instructions, the verdict form and the exhibits which have been admitted into evidence.

=== Partial Motions to Dismiss Standing Order ===

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION Plaintiff, v. Defendant. CASE NO. JUDGE DAN AARON POLSTER PARTIAL MOTIONS TO DISMISS STANDING ORDER The Court requires defendants filing partial motions to dismiss to file an answer to the remaining counts of the complaint. The filing of a partial motion to dismiss shall not delay the time in which the party must answer the remaining counts of the complaint. IT IS SO ORDERED. /s/Dan Aaron Polster Aug. 29, 2018 DAN AARON POLSTER UNITED STATES DISTRICT COURT