Civil Jury Instructions; Pretrial Procedures; Trial Procedures for Magistrate Judges; Criminal Jury Instructions; Electronic Devices; Emergency Discovery Telephone Conferences; Form - Local Rule 37.1(b) Cert. of Compliance; Form - Stipulated Protective Order; Settlement Term Sheet

=== Civil Jury Instructions ===

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII HONORABLE BARRY M. KURREN HONORABLE KEVIN S.C. CHANG HONORABLE RICHARD L. PUGLISI UNITED STATES MAGISTRATE JUDGES GENERAL FEDERAL JURY INSTRUCTIONS IN CIVIL CASES The following will be proposed as the Court=s instructions in all civil cases. Additional instructions applicable to the particular case may be prepared and proposed by the parties. Such additional instructions are to be exchanged between the parties and submitted in conformity with the Local Rules, Pretrial Order, and any directives issued by the Court. These instructions can be accessed through the Court=s web-site at the following address: INDEX INSTRUCTION NO. 1.1: CONSIDERATION AND APPLICATION OF INSTRUCTIONS A. INTRODUCTORY AND CAUTIONARY INSTRUCTIONS INSTRUCTION NO. 1.2: NO FAVORITISM, PASSION, PREJUDICE, OR SYMPATHY INSTRUCTION NO. 1.3: CONSIDERATION OF BUSINESS ENTITY PARTIES INSTRUCTION NO. 1.4: MULTIPLE PARTIES INSTRUCTION NO. 1.5: REMARKS OF THE COURT INSTRUCTION NO. 2.1: CONSIDER ONLY THE EVIDENCE INSTRUCTION NO. 2.2: OBSERVATIONS AND EXPERIENCE INSTRUCTION NO. 2.3: NO INDEPENDENT INVESTIGATION OR RESEARCH INSTRUCTION NO. 3.1: BURDEN OF PROOF B. BURDEN OF PROOF INSTRUCTION NO. 3.2: PREPONDERANCE OF THE EVIDENCE INSTRUCTION NO. 3..3 BURDEN OF PROOF — CLEAR AND CONVINCING EVIDENCE INSTRUCTION NO. 4.1: STIPULATION INSTRUCTION NO. 4.2: DEPOSITION TESTIMONY C. EVIDENCE INSTRUCTION NO. 4.3: ANSWERS TO INTERROGATORIES INSTRUCTION NO. 4.4: JUDICIAL NOTICE INSTRUCTION NO. 4.5: TYPES OF EVIDENCE — DIRECT AND CIRCUMSTANTIAL INSTRUCTION NO. 4.6: OBJECTIONS TO EVIDENCE INSTRUCTION NO. 5.1: WEIGHT OF EVIDENCE AND CREDIBILITY OF WITNESSES D. WITNESSES INSTRUCTION NO. 5.2: DISCREDITED TESTIMONY INSTRUCTION NO. 5.3: FALSE WITNESS INSTRUCTION NO. 5.4: EXPERT WITNESSES INSTRUCTION NO. 6.1: NEGLIGENCE DEFINED E. STANDARD OF CONDUCT INSTRUCTION NO. 6.2: FORESEEABILITY INSTRUCTION NO. 6.3: ALLOCATION OF NEGLIGENCE INSTRUCTION NO. 6.4: EFFECT OF COMPARATIVE NEGLIGENCE INSTRUCTION NO. 6.5: EFFECT OF JOINT/SEVERAL LIABILITY INSTRUCTION NO. 7.1: LEGAL CAUSE INSTRUCTION NO. 7.2: SUPERSEDING CAUSE F. CAUSATION INSTRUCTION NO. 7.3: PRE-EXISTING INJURY OR CONDITION INSTRUCTION NO. 7.4: SUBSEQUENT INJURIES INSTRUCTION NO. 7.5: APPORTIONMENT FOR BOTH PRE-EXISTING AND SUBSEQUENT INJURIES G. DAMAGES -- MEASURES AND ELEMENTS OF DAMAGES INSTRUCTION NO. 8.1: DAMAGE INSTRUCTIONS - FOR GUIDANCE ONLY INSTRUCTION NO. 8.2: SPECIAL DAMAGES DEFINED INSTRUCTION NO. 8.3: GENERAL DAMAGES DEFINED INSTRUCTION NO. 8.4: PAIN INSTRUCTION NO. 8.5: EMOTIONAL DISTRESS DEFINED INSTRUCTION NO. 8.6: LOSS OF CONSORTIUM INSTRUCTION NO. 8.7: LIFE EXPECTANCY INSTRUCTION NO. 8.8: ARGUMENT RE DAMAGES INSTRUCTION NO. 8.9: ELEMENTS OF DAMAGES INSTRUCTION NO. 8.10: PAIN AND SUFFERING INSTRUCTION NO. 8.11: SPECULATIVE DAMAGES INSTRUCTION NO. 8.12: PUNITIVE DAMAGES INSTRUCTION NO. 8.13: PUNITIVE DAMAGES (DEFINITION OF "WILLFUL") INSTRUCTION NO. 8.14: PUNITIVE DAMAGES (DEFINITION OF "WANTON") INSTRUCTION NO. 8.15: PUNITIVE DAMAGES (DEFINITION OF "OPPRESSIVE") INSTRUCTION NO. 8.16: PUNITIVE DAMAGES (DEFINITION OF "MALICIOUS") INSTRUCTION NO. 8.17: PUNITIVE DAMAGES (DEFINITION OF "GROSS NEGLIGENCE") 1 INSTRUCTION NO. 8.18: MITIGATION OF DAMAGES INSTRUCTION NO. 9.1: CONDUCT OF JURY INSTRUCTION NO. 9.2: EXHIBITS IN THE JURY ROOM H. JURY DELIBERATION INSTRUCTION NO. 9.3: VERDICT 2 INSTRUCTION NO. 1.1 Members of the Jury: You have heard the evidence in this case. I will now instruct you on the law that you must apply. You are the judges of the facts. It is your duty to review the evidence and to decide the true facts. When you have decided the true facts, you must then apply the law to the facts. I will tell you the law that applies to this case. You must apply that law, and only that law, in deciding this case, whether you personally agree or disagree with it. The order in which I give you the instructions does not mean that one instruction is any more or less important than any other instruction. You must follow all the instructions I give you. You must not single out some instructions and ignore others. All the instructions are equally important and you must apply them as a whole to the facts. 3 INSTRUCTION NO. 1.2 It is your duty and obligation as jurors to decide this case on the evidence presented in court and upon the law given to you. You must perform your duty and obligation without favoritism, passion, or sympathy for any party in the case, and without prejudice against any of the parties. Our system of law does not permit jurors to be governed by prejudice or sympathy or public opinion. The parties and the public expect that you will carefully and impartially consider all of the evidence in this case, follow the law as stated by the court, and reach a just verdict regardless of the consequences. This case should be considered and decided by you as an action between persons of equal standing in the community, and holding the same or similar stations in life. The law is no respecter of persons, and all persons stand equal before the law and are to be dealt with as equals in a court of justice. 4 INSTRUCTION NO. 1.3 You must not be prejudiced or biased in favor of or against a party simply because the party is a corporation or other business entity. You must treat business entities the same as you treat individuals. In this case, the [corporate/partnership] plaintiff(s)/defendant(s) is/are entitled to receive the same fair and unprejudiced treatment that an individual plaintiff/defendant would receive under similar circumstances. 8/15/94 5 INSTRUCTION NO. 1.4 Each plaintiff in this case has separate and distinct rights. You must decide the case of each plaintiff separately, as if it were a separate lawsuit. Unless I tell you otherwise, these instructions apply to all of the plaintiffs. Similarly, each defendant in this case has separate and distinct rights. You must decide the case of each defendant separately, as if it were a separate lawsuit. Unless I tell you otherwise, these instructions apply to all of the defendants. 6 INSTRUCTION NO. 1.5 If any of these instructions, or anything I have said or done in this case makes you believe I have an opinion about the facts or issues in the case, the weight to be given to the evidence, or the credibility of any witness, then you must disregard such belief. It is not my intention to create such an impression. You, and you alone, must decide the facts of this case from the evidence presented in court and you must not be concerned about my opinion of the facts. 7 INSTRUCTION NO. 2.1 In reaching your verdict, you may consider only the testimony and the exhibits received in evidence.* The following are not evidence and you must not consider them as evidence in deciding the facts of this case. 1. Attorneys’ statements, arguments and remarks during opening statements, closing arguments, jury selection, and other times during the trial are not evidence, but may assist you in understanding the evidence and applying the law. 2. Attorneys’ questions and objections are not evidence. 3. Excluded or stricken testimony or exhibits are not evidence and must not be considered for any purpose. 4. Anything seen or heard when the court was not in session is not evidence. You must decide this case solely on the evidence received at the trial. * When warranted, additional reference may also be made to jury views, site inspections, matters of judicial notice, and the like. 8/15/94 8 INSTRUCTION NO. 2.2 Even though you are required to decide this case only upon the evidence presented in court, you are allowed to consider the evidence in light of your own observations, experiences, and common sense. You may use your common sense to make reasonable inferences from the facts. 9 INSTRUCTION NO. 2.3 You must not use any source outside the courtroom to assist you in deciding any question of fact. This means that you must not make an independent investigation of the facts or the law. For example, you must not visit the scene on your own, conduct experiments, or consult dictionaries, encyclopedias, textbooks, or other reference materials for additional information. 10 INSTRUCTION NO. 3.1 Plaintiff(s) has/have the burden of proving by a preponderance of the evidence every element of each claim that plaintiff(s) assert(s). Defendant(s) has/have the burden of proving by a preponderance of the evidence every element of each affirmative defense that defendant(s) assert(s). In these instructions, whenever I say that a party must prove a claim or affirmative defense, that party must prove such claim or affirmative defense by a preponderance of the evidence, unless I instruct you otherwise. 11 INSTRUCTION NO. 3.2 To "prove by a preponderance of the evidence" means to prove that something is more likely so than not so. It means to prove by evidence which, in your opinion, convinces you that something is more probably true than not true. It does not mean that a greater number of witnesses or a greater number of exhibits must be produced. In deciding whether a claim, defense, or fact has been proven by a preponderance of the evidence, you must consider all of the evidence presented in court by both the plaintiffs and the defendant. Upon consideration of all the evidence, if you find that a particular claim, defense or fact is more likely true than not true, then such claim, defense, or fact has been proven by a preponderance of the evidence. If a preponderance of the evidence does not support each essential element of a claim or affirmative defense, then the jury should find against the party having the burden of proof as to that claim or affirmative defense. 12 INSTRUCTION NO. 3.3 The plaintiff(s)/defendant(s) has/have the burden of proving certain facts, claims or defenses by clear and convincing evidence. To prove by clear and convincing evidence means to prove by evidence which, in your opinion, produces a firm belief about the truth of the allegations which the parties have presented. It means to prove that the existence of a fact is highly probable. Clear and convincing evidence is a higher requirement of proof than the "preponderance of the evidence" requirement, but it is a lower requirement of proof than the "beyond a reasonable doubt" requirement in criminal cases. 13 INSTRUCTION NO. 4.1 Where the attorneys for the parties have stipulated to a fact, you must consider the fact as having been conclusively proved. 14 INSTRUCTION NO. 4.2 The testimony of a witness has been read into evidence from a deposition. A deposition is the testimony of a witness given under oath before the trial and preserved in written form. You must consider and judge the deposition testimony of a witness in the same manner as if the witness actually appeared and testified in court in this trial. 15 INSTRUCTION NO. 4.3 Evidence has been presented in the form of written answers given by a party in response to written questions from another party. The written answers were given under oath by the party. The written questions are called "interrogatories." You must consider and judge a party's answers to interrogatories in the same manner as if the party actually appeared and testified in court in this trial. 16 INSTRUCTION NO. 4.4 The Court may take judicial notice of certain facts. When the Court says that it takes judicial notice of some fact, the jury must accept that fact as conclusively proved. 17 INSTRUCTION NO. 4.5 There are two kinds of evidence from which you may decide the facts of a case: direct evidence and circumstantial evidence. Direct evidence is direct proof of a fact, for example, the testimony of an eyewitness. Circumstantial evidence is indirect proof of a fact, that is, when certain facts lead you to conclude that another fact also exists. You may consider both direct evidence and circumstantial evidence when deciding the facts of this case. You are allowed to give equal weight to both kinds of evidence. The weight to be given any kind of evidence is for you to decide. 18 INSTRUCTION NO. 4.6 During the trial, I have ruled on objections made by the attorneys. Objections are based on rules of law designed to protect the jury from unreliable or irrelevant evidence. It is an attorney's duty to object when he or she believes that the rules of law are not being followed. These objections relate to questions of law for me to decide and with which you need not be concerned. As to any questions to which an objection was sustained, you must not speculate as to what the answer might have been or as to the reason for the objection. You must not consider for any purpose any offer of evidence that was rejected, or any evidence that was stricken out by the court; such matter is to be treated as though you had never known of it. You must never speculate as to be true any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it supplied meaning to the answer. 19 INSTRUCTION NO. 5.1 I have said that you must consider all of the evidence. This does not mean , however, that you must accept all of the evidence as true or accurate. You are the sole judges of the credibility of all witnesses who testified in this case. The weight their testimony deserves is for you to decide. It is your exclusive right to determine whether and to what extent a witness should be believed and to give weight to that testimony according to your determination of the witness' credibility. In evaluating a witness, you may consider: (1) the witness' appearance and demeanor on the witness stand; (2) the manner in which a witness testified and the degree of intelligence shown; (3) the witness' degree of candor or frankness; (4) the witness' interest, if any, in the result of this case; (5) the witness' relationship to either party in the case; (6) any temper, feeling or bias shown by the witness; (7) the witness' character as shown by the evidence; (8) the witness' means and opportunity to acquire information; (9) the probability or improbability of the witness' testimony; (10) the extent to which the witness' testimony is supported or contradicted by other evidence; (11) the extent to which the witness made contradictory statements; and (12) all other circumstances affecting the witness' credibility. 20 Inconsistencies in the testimony of a witness, or between the testimonies of different witnesses, may or may not cause you to discredit the inconsistent testimony. This is because two or more persons witnessing an event may see or hear the event differently. An innocently mistaken recollection or failure to remember is not an uncommon experience. In examining any inconsistent testimony, you should consider whether the inconsistency concerns important matters or unimportant details. You should also consider whether inconsistent testimony is the result of an innocent mistake or a deliberate false statement. You may, in short, accept or reject the testimony or any witness in whole or in part. Also, the weight of the evidence is not necessarily determined by the number of witnesses testifying as to the existence or non-existence of any fact. You may find that the testimony of a smaller number of witnesses as to any fact is more credible than the testimony of a larger number of witnesses to the contrary. 21 INSTRUCTION NO. 5.2 The testimony of a witness may be discredited by contradictory evidence or by evidence showing that at other times the witness made statements inconsistent with the witness' testimony in this trial. If you believe that testimony of any witness has been discredited, you may give that testimony the degree of credibility you believe it deserves. 22 INSTRUCTION NO. 5.3 You may reject the testimony of a witness if you find and believe from all of the evidence presented in this case that: 1. The witness intentionally testified falsely in this trial about any important fact; or 2. The witness intentionally exaggerated or concealed an important fact or circumstance in order to deceive or mislead you. In giving you this instruction, I am not suggesting that any witness intentionally testified falsely or deliberately exaggerated or concealed an important fact or circumstance. That is for you to decide. 23 INSTRUCTION NO. 5.4 In this case, you heard testimony from witnesses described as experts. Experts are persons who, by education, experience, training or otherwise, have special knowledge which is not commonly held by people in general. Experts may state an opinion on matters in their field of special knowledge and may also state their reasons for the opinion. The testimony of expert witnesses should be judged in the same manner as the testimony of any witness. You may accept or reject the testimony in whole or in part. You may give the testimony as much weight as you think it deserves in consideration of all of the evidence in this case. 24 INSTRUCTION NO. 6.1 Negligence is doing something which a reasonable person would not do or failing to do something which a reasonable person would do. It is the failure to use that care which a reasonable person would use to avoid injury to himself, herself, or other people or damage to property. In deciding whether a person was negligent, you must consider what was done or not done under the circumstances as shown by the evidence in this case. 25 INSTRUCTION NO. 6.2 In determining whether a person was negligent, it may help to ask whether a reasonable person in the same situation would have foreseen or anticipated that injury or damage could result from that person's action or inaction. If such a result would be foreseeable by a reasonable person and if the conduct reasonably could be avoided, then not to avoid it would be negligence. 26 INSTRUCTION NO. 6.3 You must determine whether any of the parties in this case were negligent and whether such negligence on the part of a party was a legal cause of plaintiff's(s') injuries or damages. If you find that at least one defendant was negligent and such negligence was a legal cause of the injuries or damages, you must determine the total amount of plaintiff's(s') damages, without regard to whether plaintiff's(s') own negligence was also a legal cause of the injuries or damages. If you find that more than one party was negligent and the negligence of each was a legal cause of the injuries or damages, then you must determine the degree to which each party's negligence contributed to the injuries or damages, expressed in percentages. The percentages allocated to the parties must total 100%. 27 INSTRUCTION NO. 6.4 If you find that plaintiff's(s') negligence is 50% or less, the Court will reduce the amount of damages you award by the percentage of the negligence you attribute to plaintiff(s). If, on the other hand, you find that plaintiff's(s') negligence is more than 50%, the Court will enter judgment for defendant(s) and plaintiff(s) will not recover any damages. 28 INSTRUCTION NO. 6.5 Any defendant found liable to plaintiff(s) to any degree may be required to pay his/her/its share of the judgment as well as the share of another/other liable defendant(s). Any defendant who pays more than his/her/its share of the judgment has the right to seek payment from another/other liable defendant(s) to the extent of the other liable defendant's(s') proportionate share of the judgment.** ** This instruction may require modification to comply with Hawaii Revised Statutes § 663-10.9 and relevant case law. 29 INSTRUCTION NO. 7.1 An act or omission is a legal cause of an injury or damage if it was a substantial factor in bringing about the injury or damage. One or more substantial factors such as the conduct of more than one person may operate separately or together to cause an injury or damage. In such a case, each may be a legal cause of the injury or damage. 30 INSTRUCTION NO. 7.2 A superseding cause is an act or force which relieves defendant(s) of responsibility for plaintiff's(s') injury or damage. To be a superseding cause, an act or force must: (1) occur after defendant's(s') conduct, (2) be a substantial factor in bringing about the injury or damage to plaintiff(s), (3) intervene in such a way that defendant's(s') conduct is no longer a substantial factor in bringing about the injury or damage, and (4) not be reasonably foreseeable at the time defendant(s) acted or failed to act. If the act or force was a normal consequence of the situation created by defendant's(s') conduct, then said act or force is not a superseding cause. The conduct of plaintiff(s) cannot be a superseding cause. 31 INSTRUCTION NO. 7.3 In determining the amount of damages, if any, to be awarded to plaintiffs, you must determine whether plaintiff(s) had an injury or condition which existed prior to the [insert date of the incident] incident. If so, you must determine whether plaintiff(s) was/were fully recovered from the pre-existing injury or condition or whether the pre-existing injury or condition was latent at the time of the subject incident. A pre-existing injury or condition is latent if it was not causing pain, suffering or disability at the time of the subject incident. If you find that plaintiff(s) was/were fully recovered from the pre-existing injury or condition or that such injury or condition was latent at the time of the subject incident, then you should not apportion any damages to the pre-existing injury or condition. If you find that plaintiff(s) was/were not fully recovered and that the pre-existing injury or condition was not latent at the time of the subject incident, you should make an apportionment of damages by determining what portion of the damages is attributable to the pre-existing injury or condition and limit your award to the damages attributable to the injury caused by defendant(s). If you are unable to determine, by a preponderance of the evidence, what portion of the damages can be attributed to the pre-existing injury or condition, you may make a rough apportionment. If you are unable to make a rough apportionment, then you must divide the damages equally between the pre-existing injury or condition and the injury caused by defendant(s). 32 INSTRUCTION NO. 7.4 In determining the amount of damages, if any, to be awarded to plaintiff(s), you must also determine whether plaintiff(s) was/were injured after the [insert date of the incident] incident. If plaintiff(s) suffered injury after the subject incident, and such injury was not legally caused by the conduct of defendant(s), then you should make an apportionment of damages by determining what portion of the damages is attributable to the later injury and limit your award to the damages attributable to the injury caused by defendant(s). If you are unable to determine, by a preponderance of the evidence, what portion of the damages can be attributed to the later injury, you may make a rough apportionment. If you are unable to make a rough apportionment, then you must divide the damages equally between the later injury and the injury caused by defendant(s). 33 INSTRUCTION NO. 7.5 If you must apportion damages among (1) pre-existing injuries or conditions, (2) injuries caused by defendant(s), and (3) later injuries, and you are unable to determine apportionment by a preponderance of the evidence, you may make a rough apportionment. If you are unable to make a rough apportionment, then you must divide the damages equally among the injuries or conditions. 34 INSTRUCTION NO. 8.1 Instructions on damages are only a guide for an award of damages if you find defendant(s) responsible to plaintiff(s). The fact that the Court is instructing you on damages does not mean that defendant(s) is/are responsible to plaintiff(s). That is for you to decide. 35 INSTRUCTION NO. 8.2 Special damages are those damages which can be calculated precisely or can be determined by you with reasonable certainty from the evidence. 36 INSTRUCTION NO. 8.3 General damages are those damages which fairly and adequately compensate plaintiff(s) for any past, present, and reasonably probable future disability, pain, and emotional distress caused by the injuries or damages sustained. 37 INSTRUCTION NO. 8.4 Pain is subjective, and medical science may or may not be able to determine whether pain actually exists. You are to decide, considering all the evidence, whether pain did, does and will exist. 38 INSTRUCTION NO. 8.5 Emotional distress includes mental worry, anxiety, anguish, suffering, and grief, where they are shown to exist. 39 INSTRUCTION NO. 8.6 If you find that defendants are liable, you may allow plaintiff _____________ a fair and reasonable compensation for the loss and impairment of ______________’s ability to perform services as wife/husband, because of her/his injuries. In determining the amount of such compensation, you are to consider the loss and impairment of her/his companionship, aid, assistance, comfort and society, and services to her husband/his wife in performing her/his domestic and household functions, if any. The services provided by a wife/husband to her husband/his wife may often be of such character that no one can say what they are worth. The relationship between spouses is a special and unique one, and the actual facts of the case, considered together with your own experience, must guide you in deciding what amount would fairly and justly compensate the husband/wife for his/her loss. 40 INSTRUCTION NO. 8.7 The life expectancy of plaintiff(s) may be considered by you in determining the amount of damages, if any, which he/she/they should receive for permanent injuries and future expenses and losses. 41 INSTRUCTION NO. 8.8 In presenting his/her argument to you on the amount, if any, which should be awarded to plaintiff(s) as damages, the attorney for plaintiff(s) has proposed to you figures which he/she arrived at by mathematical calculations (and has shown you those figures on a chart). After first suggesting that a dollar value per hour or day or month or year be given to an item such as pain, disability, emotional distress and so forth, he/she multiplied that dollar value by a certain number of hours or days or months or years and came up with a total figure as an amount of damages for such items. Neither the chart nor what the attorney has said as to the dollar values or figures for measuring such items of damages is evidence. The law permits this kind of argument to be made, but you must remember argument is not evidence. The law gives you no way to mathematically calculate such items of damages and leaves them to be fixed by you as your common sense and good judgment dictate, based on the nature and extent of plaintiff's(s') injuries or damages under the evidence in this case. 42 INSTRUCTION NO. 8.9 If you find for plaintiff(s) on the issue of liability, plaintiff(s) is/are entitled to damages in such amount as in your judgment will fairly and adequately compensate him/her/them for the injuries which he/she/they suffered. In deciding the amount of such damages, you should consider: 1. The extent and nature of the injuries he/she/they received, and also the extent to which, if at all, the injuries he/she/they received are permanent; 2. The deformity, scars and/or disfigurement he/she/they received, and also the extent to which, if at all, the deformity, scars and/or disfigurement are permanent; 3. The reasonable value of the medical services provided by physicians, hospitals and other health care providers, including examinations, attention and care, drugs, supplies, and ambulance services, reasonably required and actually given in the treatment of plaintiff(s) and the reasonable value of all such medical services reasonably probable to be required in the treatment of plaintiff(s) in the future; 4. The pain, emotional suffering, and disability which he/she/they has/have suffered and is/are reasonably probable to suffer in the future because of the injuries, if any. 5. The lost income sustained by plaintiff(s) in the past and the lost income he/she/they is/are reasonably probable to sustain in the future. 43 INSTRUCTION NO. 8.10 Plaintiff(s) is/are not required to present evidence of the monetary value of their pain or emotional distress. It is only necessary that plaintiff(s) prove the nature, extent and effect of their injury, pain, and emotional distress. It is for you, the jury, to determine the monetary value of such pain or emotional distress using your own judgment, common sense and experience. 44 INSTRUCTION NO. 8.11 Compensation must be reasonable. You may award only such damages as will fairly and reasonably compensate plaintiff(s) for the injuries or damages legally caused by defendant’s(s') negligence. You are not permitted to award a party speculative damages, which means compensation for loss or harm which, although possible, is conjectural or not reasonably probable. 45 INSTRUCTION NO. 8.12 If you award plaintiff(s) any damages, then you may consider whether you should also award punitive damages. The purposes of punitive damages are to punish the wrongdoer and to serve as an example or warning to the wrongdoer and others not to engage in such conduct. You may award punitive damages against a particular defendant only if plaintiff(s) has/have proved by clear and convincing evidence that the particular defendant acted intentionally, willfully, wantonly, oppressively or with gross negligence. Punitive damages may not be awarded for mere inadvertence, mistake or errors of judgment. The proper measure of punitive damages is (1) the degree of intentional, willful, wanton, oppressive, malicious or grossly negligent conduct that formed the basis for your prior award of damages against that defendant and (2) the amount of money required to punish that defendant considering his/her/its financial condition. In determining the degree of a particular defendant's conduct, you must analyze that defendant's state of mind at the time he/she/it committed the conduct which formed the basis for your prior award of damages against that defendant. Any punitive damages you award must be reasonable. 46 INSTRUCTION NO. 8.13 An act is "willful" when it is premeditated, unlawful, without legal justification, or done with an evil intent, with a bad motive or purpose, or with indifference to its natural consequences. 47 INSTRUCTION NO. 8.14 An act is "wanton" when it is reckless, heedless, or characterized by extreme foolhardiness, or callous disregard of, or callous indifference to, the rights or safety of others. 48 INSTRUCTION NO. 8.15 An act is "oppressive" when it is done with unnecessary harshness or severity. 49 INSTRUCTION NO. 8.16 An act is "malicious" when it is prompted or accompanied by ill will or spite. 50 INSTRUCTION NO. 8.17 Gross negligence is conduct that is more extreme than ordinary negligence. It is an aggravated or magnified failure to use that care which a reasonable person would use to avoid injury to himself, herself, or other people or damage to property. But gross negligence is something less than willful or wanton conduct. 51 INSTRUCTION NO. 8.18 Any plaintiff claiming damages resulting from the wrongful act of a defendant has a duty under the law to use reasonable diligence under the circumstances to mitigate or minimize those damages. If you find plaintiff(s) suffered damages, plaintiff(s) may not recover for any damages which he/she/it/they could have avoided through reasonable effort. If you find that plaintiff(s) unreasonably failed to mitigate or lessen his/her/its/their damages, you should not award those damages which he/she/it/they could have avoided. You are the sole judge of whether plaintiff(s) acted reasonably in mitigating his/her/its/their damages. Plaintiff(s) may not sit idly by when presented with a reasonable opportunity to reduce his/her/its/their damages. However, plaintiff(s) is/are not required to exercise unreasonable efforts or incur unreasonable expenses in mitigating his/her/its/their damages. Defendant(s) has/have the burden of proving the damages which plaintiff(s) could have mitigated. You must consider all of the evidence in light of the particular circumstances of the case in deciding whether defendant(s) has/have satisfied his/her/its/their burden of proving that plaintiff's(s') conduct was not reasonable. 52 INSTRUCTION NO. 9.1 Your verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. In other words, your verdict must be unanimous. When you retire to the jury room to begin your deliberations, your first duty will be selection of a foreperson to preside over the deliberations and to speak on your behalf in court. The foreperson's duties are: 1. To keep order during the deliberations and to make sure that every juror who wants to speak is heard; 2. To represent the jury in communications you wish to make to me; and 3. To sign, date and present the jury's verdict to me. In deciding the verdict, all jurors are equal and the foreperson does not have any more power than any other juror. After you select a foreperson, you will proceed to discuss the case with your fellow jurors and reach agreement on a verdict, if you can. You may take as much time as you feel is necessary for your deliberations. It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but only after you have considered the views of your fellow jurors. Do not be afraid to change your opinion if you think you are wrong. But do not come to a decision simply because other jurors think it is a right decision, or simply to get the case over with. 53 INSTRUCTION NO. 9.2 During this trial, items were received in evidence as exhibits. These exhibits will be sent into the jury room with you when you begin to deliberate. 54 INSTRUCTION NO. 9.3 Remember at all times that you are not partisans. You are judges - judges of the judges of the facts in this case. Your only interest is to seek the truth from the evidence presented. From the time you retire to the jury room to begin your deliberations until you complete your deliberations, it is necessary that you remain together as a body. You should not discuss the case with anyone other than your fellow jurors. If it becomes necessary for you to communicate with me during your deliberations, you may send a note by the bailiff. I will then respond as promptly as possible, either in writing or by having you returned to the courtroom. Your verdict will consist of answers to the questions on the verdict form. You will answer the questions according to the instructions I have given you and according to the directions contained in the verdict form. Your verdict must be unanimous. It is necessary that each of you agree on all answers required by the verdict form. Each of you must be able to state, when you return to the courtroom after a verdict is reached, that his or her vote is expressed in the answers on the verdict form. As soon as all of you agree upon each answer required by the directions in the verdict form, the form should be dated and signed by your foreperson. The foreperson will then notify the bailiff by a written communication that the jury has reached a verdict. Thereafter, the bailiff will arrange to have you return with the verdict form to the courtroom. Bear in mind that you are not to reveal to the court or anyone else how the jury stands on the verdict until all of you have agreed on it. 55

=== Pretrial Procedures ===

UNITED STATES DISTRICT COURT DISTRICT OF HAWAI`I 300 ALA MOANA BOULEVARD HONOLULU, HAWAI`I 96850 KEVIN S.C. CHANG UNITED STATES MAGISTRATE JUDGE KENNETH J. MANSFIELD UNITED STATES MAGISTRATE JUDGE TELEPHONE: (808) 541-1308 TELEPHONE: (808) 541-1428 PRETRIAL PROCEDURES IN CIVIL CASES BEFORE MAGISTRATE JUDGES KEVIN S.C. CHANG AND KENNETH J. MANSFIELD (Last Revised: 02/21/2017) The purpose of this memorandum is to provide general information regarding pretrial procedures before Magistrate Judges Chang and Mansfield. This information supplements, and does not replace, counsel and the parties’ review and knowledge of the Local Rules of Practice for the U.S. District Court for the District of Hawai`i (“Local Rules”), the Federal Rules of Evidence (“FRE”), and the Federal Rules of Civil Procedure (“FRCP”). Counsel and any parties proceeding pro se are expected and required to be familiar with and comply with the aforementioned rules. 1. Rule 16 Conferences: Within 90 days after the filing of a matter, a scheduling conference is typically held. The parties must file with the court and serve on all parties a Scheduling Conference Statement. Counsel or parties proceeding pro se must be prepared to discuss, among other things, the following at the conference: (1) alternative dispute resolution procedures; (2) any discovery problems, anticipated or current; (3) pending or anticipated motions; and (4) prospects for settlement. Initial disclosures of witnesses and documents are required in most cases to be made prior to the conference. See Fed. R. Civ. P. 26. a. Scheduling Conference Statement: This statement must be filed no later than (7) calendar days before the conference in accordance with Local Rule 16.2 and contain, among other things, a brief statement of the case, statement of jurisdiction, whether jury trial has been demanded, list of discovery completed and a list of in progress, motions pending and hearing dates, and a list of any related cases. b. Report of Meeting of the Parties: At least 21 days before the Scheduling Conference, the parties must meet to discuss the nature and basis of their claims 1 and defenses and the possibilities for settlement or other resolution as required by FRCP 26(f). Counsel and parties appearing pro se must submit to the court within 14 days after the meeting a written report outlining the plan for discovery. c. Rule 16 Scheduling Conference Order: An Order will be mailed to counsel and parties proceeding pro se who appeared at the Scheduling Conference. This Order will set forth deadlines for (1) trial date; (2) final pretrial conference; (3) filing motions to join or add parties or amend pleadings; (4) filing other non- dispositive motions; (5) filing dispositive motions; (6) filing motions in limine; (7) expert disclosures; (8) discovery deadline; (9) settlement conference; (10) submitting settlement conference statements; (11) submitting voir dire questions, special verdict form, concise statement or case and jury instructions (if jury trial); (12) filing final witness list; (13) exchanging exhibit and demonstrative aids; (14) filing stipulations regarding proposed exhibits; (15) filing deposition designations and counter-designations; (16) filing trial briefs; (17) filing findings of fact and conclusions of law (if non-jury trial). 2. Discovery Conferences: No motion or discovery conference will be entertained unless and until counsel or parties proceeding pro se have met and conferred, in person or by telephone, concerning all disputed issues, in a good faith effort to limit the disputed issues and, if possible, to eliminate the need for any motion or conference. If a motion is filed, then the moving party must certify compliance with this requirement. See Local Rule 37.1(b). a. b. Discovery Letter Briefs: Discovery assistance on an expedited basis is available and is intended to afford a swift but full opportunity for parties to present their positions through abbreviated, simultaneous briefing and, when appropriate, a conference. Counsel desiring court assistance in resolving discovery issues on an expedited basis shall contact opposing counsel in an effort to reach an agreement on a deadline for the submission of letter briefs, and then shall inform the courtroom manager or chambers staff of the assigned magistrate judge of the agreed upon deadline. See Local Rule 37.1. After reviewing the letter briefs, the court will determine whether this expedited procedure will entail only the submission of letter briefs (consisting of five pages or less of written materials, including exhibits) submitted, or involve both the submission of letter briefs and a discovery conference or hearing. Confidentiality Order: Where practicable, counsel or parties proceeding pro se should seek agreement for production of confidential documents pursuant to a stipulated protective order. An acceptable form of a stipulated protective order can be found under the Judges’ Requirements tab on the U.S. District Court for the District of Hawaii website (www.hid.uscourts.gov). Generally, the court will not permit entire court files consisting of pleadings and documents to be sealed, even if the parties wish to stipulate to such measures. The court, however, does recognize that it may be necessary sometimes to submit to the court a limited 2 number of documents or specific portions of pleadings under seal. See, e.g., Form Stipulated Protective Order. 3. Courtroom Managers: For questions regarding scheduling in civil cases, the courtroom managers may be contacted by telephone. The courtroom managers for each of the Magistrate Judges and their telephone numbers are: Magistrate Judge Kevin S.C. Chang: Leslie Sai – 541-3089 Magistrate Judge Kenneth J. Mansfield: Bernie Aurio – 541-1298 4. 5. 6. 7. For additional telephone numbers and other information, please consult the court’s website. Magistrate Judge Consent Trials: In accordance with the provisions of 28 U.S.C. § 636(c), FRCP 73, and Local Rules 73.1 and 73.2, a magistrate judge is available to conduct all proceedings in a civil case including a jury or non-jury trial, deciding dispositive motions (such as a motion to dismiss or for summary judgment), entering a final judgment, and all post-judgment proceedings where all parties voluntarily consent. An appeal from a judgment entered by a magistrate judge shall be taken directly to the appropriate United States court of appeals in the same manner as an appeal from any other judgment of this district court. To obtain a consent trial, the parties must sign and file a consent form. The form may be obtained from the Clerk’s office, a courtroom manager, or the court’s website. The magistrate judges are responsible for handling criminal matters on a monthly rotational basis. Consent trials will not be scheduled during a magistrate judge’s criminal duty month. Settlement Conferences: Settlement conferences are scheduled at the Rule 16 Scheduling Conference. If the parties agree, counsel or the parties may request an earlier settlement conference date by contacting the courtroom manager for the magistrate judge assigned to handle the settlement conference. Parties shall submit confidential settlement conference statements at least seven (7) days before the conference and follow the requirements set forth in Local Rule 16.5. Status Conferences: In accordance with Local Rule 16.10, status conferences may from time to time be scheduled in any proceeding. Such conferences may be requested by any party and shall be called only as necessary to facilitate the progress of the case and shall not be held as a matter of routine. No pleading need be filed. Final Pretrial Conferences: The date for the final pretrial conference and all trial related deadlines (such as deposition designations, submission of jury instructions or proposed findings of fact and conclusions of law, motions in limine filing deadline) are assigned at the Rule 16 Scheduling Conference. At the final pretrial conference, counsel or parties should be prepared to discuss, among other things, the following: (1) number 3 of witnesses and scheduling; (2) status of settlement discussions; (3) special needs such as interpreters or audiovisual equipment; and (4) exhibits and motions in limine. 8. Forms: Counsel and parties are strongly advised to review and consider the following forms that may be found under the Judges’ Requirements tab on the court’s website when submitting pleadings or other documents relevant to the forms. These forms are not a substitute for reviewing and complying with the Local Rules, the FRCP, or the FRE. a. b. Stipulated Protective Order Local Rule 37.1(b) Certificate of Compliance (for discovery dispute) Please consult the Clerk’s office or the Forms tab on the court’s website for the following forms, among others: Bill of Costs, Witness and Exhibit Lists, Application to Proceed In Forma Pauperis, Waiver of Service of Summons, Summons in a Civil Action, Third Party Summons in a Civil Action, Motion to Appear Pro Hac Vice, Subpoena in a Civil Case, and Civil Cover Sheet. 4

=== Trial Procedures for Magistrate Judges ===

UNITED STATES DISTRICT COURT DISTRICT OF HAWAII 300 ALA MOANA BLVD. HONOLULU, HAWAII 96850 KENNETH J. MANSFIELD CHIEF UNITED STATES MAGISTRATE JUDGE ROM TRADER UNITED STATES MAGISTRATE JUDGE WES REBER PORTER UNITED STATES MAGISTRATE JUDGE TELEPHONE: (808) 541-1428 COURTROOM 6 (2nd floor) TELEPHONE: (808) 541-1480 COURTROOM 5 (2nd floor) TELEPHONE: (808) 541-1433 COURTROOM 7 (2nd floor) CONSENT TO A MAGISTRATE JUDGE IN A CIVIL CASE and TRIAL PROCEDURES BEFORE MAGISTRATE JUDGES A United States magistrate judge may, if all parties consent, preside over all proceedings in a civil action including a jury or nonjury trial. See 28 U.S.C. §636(c); Fed. R. Civ. Pro. 73. The Local Rules of Practice for the United States District Court for the District of Hawaii (Local Rules) allow parties in a civil case to consent to all proceedings, including a jury or non-jury trial, before a magistrate judge. See L.R. 73.1(a). Parties may consent to a magistrate judge for all proceedings using a Form AO 85, or parties can designate a specific matter for consent such as a dispositive motion using Form AO 85A. See L.R. 73.1(a). An appeal from any final order or judgment entered by a magistrate judge with consent jurisdiction is taken directly to the United States Court of Appeals for the Ninth Circuit. See 28 U.S.C. § 636(c)(3); Fed. R. Civ. P. 73(c). If all parties to a civil case consent, the United States magistrate judge will have the same jurisdictional authority as a United States district judge and will preside over all aspects of the civil matter, including the authority to: • • • • • Schedule, hear, and decide all dispositive and non-dispositive matters; Schedule, hear, and decide all interlocutory matters; Conduct jury or non-jury trials; Enter final orders and judgement; and Schedule, hear, and decide all post-trial motions. In the District of Hawaii, parties to a civil case also may designate “a particular magistrate judge” by naming one of above judges on the consent form. L.R.73.1(a). A consent to conduct a civil proceeding including trial by a magistrate judge “shall be filed as soon as practicable, preferably before any ruling on a dispositive motion.” L.R. 73.1(b). To inquire about a particular magistrate judge’s availability and trial calendar, contact that magistrate judge's courtroom manager from the District of Hawaii website. There are several compelling reasons to consider consenting to a magistrate judge in a federal civil case. See Should You Consent to a Magistrate Judge? Absolutely, and Here’s Why, Choosing to Consent to a Magistrate Judge, and “Nothing Less Than Indispensable”: The Expansion of Federal magistrate Judge Authority and Utilization in the Past Quarter Century, 16 NEV. L.J. 845 (2016). One primary consideration is, district judges are assigned both civil and criminal cases and must give scheduling priority to criminal cases. Magistrate judges do not preside over felony criminal matters. Further, in the District of Hawaii, magistrate judges do not “double-book” their trial calendars and are generally more readily available to preside over civil trials.1 Thus, magistrate judges may be able to provide a more certain and expedited trial date for parties in civil cases. 1 In the District of Hawaii, the three, full time magistrate judges rotate “criminal duty” by month. During their month on criminal duty, the magistrate judge will handle all requests for search and arrest warrants and all initial hearings in criminal cases in the district (including initial appearances, arraignments, detention hearings and change of plea hearings). Accordingly, the magistrate judges generally do not schedule civil consent trials during their assigned criminal duty months. Consent Cases and Trial Procedures Before Magistrate Judges Last Revised: 11/01/2019 TRIAL PROCEDURES BEFORE MAGISTRATE JUDGES Telephone numbers: Prior to the commencement of trial, counsel shall provide the court and one another with telephone numbers at which they may be reached after court hours so that notice may be given, if necessary, of any changes in the schedule. Jury Questionnaires: Jury questionnaires are available to counsel one (1) week prior to jury selection. Please contact the Jury Clerk in the Clerk’s Office to order a set and to ascertain copy charges. Interpreters: Counsel and the parties are responsible for hiring and arranging for any interpreters who may be necessary for witness testimony. These arrangements should be made well in advance of trial. Tardiness: Arrive early for each court session. Check in with the courtroom manager upon arrival to the courtroom. Trial proceedings take precedence over any other business including other hearings. Sanctions may be imposed on any party, attorney, or witness for tardiness that delays the trial. Trial Schedule: Except for the day(s) of jury selection, jury trial commences daily at 8:30 a.m. and runs until 1:30 p.m. unless otherwise announced. There is no lunch break taken during trial hours. Jurors and counsel are advised to bring a snack for consumption during a break. Short breaks are taken at various intervals throughout the day. Trial may extend beyond 1:30 p.m. on certain days if the judge deems it necessary. Jury selection day begins at 9:00 a.m. and concludes at 4:00 p.m., with a lunch break from noon to 1:30 p.m. Bench (non-jury) trials: Many of the trial procedures outlined here may not apply to a bench (non-jury) trial. The presiding magistrate judge will set more particularized trial procedures in these proceedings. Trial hours may be longer for non-jury trials. Consent Cases and Trial Procedures Before Magistrate Judges Last Revised: 11/01/2019 Use of microphone: Counsel shall use the microphone provided when addressing the court or the jury such as in any examination, objection, statement for the record, or argument. Bench Conferences: Bench conferences or side bars are generally not permitted. Counsel should plan to meet daily with the judge prior to trial, during recess, or after the jury is dismissed for the day to discuss any disputes. If a problem arises during a witness examination, then counsel should defer the matter and move to another line of questioning so the dispute can be resolved during the next recess. Communications With Jurors: Under no circumstances are counsel to attempt to communicate with any juror prior to or during trial. Counsel must instruct clients and witnesses accordingly. Juror note taking: Jurors will be permitted to take notes during trial. The court will provide notebooks and pens. These notebooks will be left face-down on the jurors’ chairs when they leave the courtroom. The jurors may take their notes into the jury deliberation room. After trial, these notes will be destroyed. Voir Dire: The court conducts the general voir dire and will incorporate special voir dire based on questions that the parties may have submitted. Each side will then have a maximum of fifteen (15) minutes for voir dire which must include both general and individual questioning of the jurors. Motions (in limine): All motions should be in writing and conform to the Local Rules. These matters may be raised at sidebar or by request, at the first recess without waiving any rights by such delayed motion. Except for good cause, motions in limine must be filed in accordance with the deadlines set forth in the Rule 16 Scheduling Order and these motions generally will be heard at the Final Pretrial Conference. Do not make substantive motions (such as motions for a mistrial or judgment notwithstanding the law) in the presence of the jury. Consent Cases and Trial Procedures Before Magistrate Judges Last Revised: 11/01/2019 Addressing the Court & Objections: Stand when you address the Court including making and responding to objections. When you object in the presence of the jury, make your objection concise and cite the basis or the applicable Rule of Evidence for your objection. Speaking objections are not allowed. Use of demonstrative aids during trial: The parties should meet and confer about the use of demonstrative aids during trial (including exhibits not yet admitted into evidence, summary charts or other materials created to assist the jury). If the parties are unable to reach an agreement, the sponsoring party may seek leave of court. Agreement of the parties or leave of court must be obtained prior to when the proponent intends to use it and without delaying proceedings before the jury. Witnesses: Each party will be responsible for securing the appearance of witnesses the party proposes to call. Counsel should arrange for a sufficient number of witnesses each day and there should not be any delay in trial proceedings caused by witness unavailability. The next day’s witnesses must be disclosed by the proffering counsel to other counsel by no later than the close of each day’s trial proceedings. Deposition testimony to be used at trial: Deadlines for the deposition testimony designations and objections are as set forth in the Rule 16 Scheduling Conference Order. If deposition testimony is to be published to the jury, then the party offering this testimony should notify the court and the other parties in a timely manner so that the written or videotaped testimony can be edited in accordance with the court’s rulings on any objections without delaying trial proceedings. Procedure: The party offering the testimony must give a list of the precise designations that are in dispute to the court and the other parties no later than noon on the day before the testimony will be published to the jury. The offering party must provide the court with two (2) working copies of the complete, condensed-version deposition highlighting the precise designations in dispute. Consent Cases and Trial Procedures Before Magistrate Judges Last Revised: 11/01/2019 Redacted deposition filing and declaration: After the court rules on the objections and before the testimony is published to the jury, the offering party must file with the court and serve all parties a declaration by the party or counsel and attach a redacted copy of the deposition transcript reflecting the testimony permitted into evidence. If the deposition testimony is published to the jury by reading testimony aloud, then the offering party must provide a person to read the testimony. Final redacted transcript: A final redacted deposition transcript may be filed as an exhibit after the deposition testimony is published to the jury. Exhibits: Parties are required to meet and confer about a common set of exhibits, as well as the stipulated authenticity and admissibility of exhibits. Before the final pretrial conference or any hearing on motions in limine, counsel must inform the that counsel have met and conferred, stipulated that some exhibits are admissible or authentic, and otherwise identified which exhibits remain in dispute. Marking Exhibits: Exhibits must be marked as follows: plaintiff’s by numbers (i.e.,, 1, 2, 3, ...), defendant’s by letters (i.e.,, A, B, C, ... AA, AB, AC, ...) and, to be used by either party, demonstrative exhibits by roman numerals following the word “Demo” (i.e., Demo. I, Demo. II, …). A party objecting to exhibits listed by the opposing party must inform the court of the exhibits in dispute by exhibit number. Court time may not be used for marking exhibits, which must be done in advance of the court session. Adding Exhibits: A party may seek, during trial or an evidentiary hearing, to add exhibits not previously listed by requesting leave of court. The party seeking to add exhibits must provide the court and all parties with copies of the additional exhibits, mark the additional exhibits with exhibit numbers next in order, and submit supplemental exhibit lists. Publishing Exhibits: Counsel may not approach the jury with exhibits. Exhibits should be handed directly to the courtroom manager or law clerk for all purposes. Consent Cases and Trial Procedures Before Magistrate Judges Last Revised: 11/01/2019 Retrieving Exhibits: At the conclusion of the trial and jury deliberations, counsel must remain in the courtroom to receive their exhibits. All exhibits must be returned to counsel. Jury Instructions: Parties are required to meet and confer about a common set of jury instructions. Hard copies of proposed jury instructions and proposed special verdict forms must be submitted, along with electronic copies in Microsoft Word. Electronic copies may be submitted to the respective magistrate judge’s email orders address: [email protected] [email protected] [email protected] Special equipment: Permission to use special equipment (such as television monitors, laptops, iPads, and other demonstrative aides) must be obtained in advance from the court. Following approval, the parties are responsible for coordinating set up and removal of the equipment. If the parties wish to use court equipment, then they must make all necessary arrangements with the IT department and are subject to any applicable limitations with respect to the usage of the equipment. Consent Cases and Trial Procedures Before Magistrate Judges Last Revised: 11/01/2019

=== Criminal Jury Instructions ===

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII HONORABLE BARRY M. KURREN United States Magistrate Judge GENERAL FEDERAL JURY INSTRUCTIONS IN CRIMINAL CASES The following will be proposed as Court's Instructions. INDEX TO BASIC INSTRUCTIONS No. 1 2 A B 3 A B 4 5 6 7 8 9 10 11 12 13 A B 14 15 16 17 A B C D 18 19 A DUTY OF JUDGE DUTY TO FOLLOW INSTRUCTIONS Single Defendant Multiple Defendants REASONABLE DOUBT Defendant Does Not Testify Defendant Testifies EVIDENCE - EXCLUDING ARGUMENT OF COUNSEL EVIDENCE - OBJECTIONS EVIDENCE - EXCLUDING STATEMENTS OF JUDGE EVIDENCE - STIPULATION EVIDENCE - DIRECT AND CIRCUMSTANTIAL EVIDENCE - CREDIBILITY OF WITNESSES EVIDENCE - EXPERT WITNESSES IMPEACHMENT - GENERALLY - REPUTATION FOR TRUTHFULNESS IMPEACHMENT - PRIOR CONVICTION IMPEACHMENT OF DEFENDANT General Instruction General Instruction & Prior Conviction (To be read, in addition to #10 above, when defendant is impeached by prior conviction) ON OR ABOUT KNOWINGLY WILLINGLY CAUTION - PUNISHMENT Single Defendant, Single Count in Indictment Single Defendant, Multiple Counts in Indictment Multiple Defendants, Single Count Multiple Defendants, Multiple Counts DUTY TO DELIBERATE VERDICT Single Defendant B Multiple Defendants COURT'S INSTRUCTION NO. 1 Members of the Jury: You have now heard all of the evidence in the case as well as the final arguments of the lawyers for the parties. It becomes my duty, therefore, to instruct you on the rules of law that you must follow and apply in arriving at your decision in the case. In any jury trial there are, in effect, two judges. I am one of the judges; the other is the jury. It is my duty to preside over the trial and to determine what testimony and evidence is relevant under the law for your consideration. It is also my duty at the end of the trial to instruct you on the law applicable to the case. COURT'S INSTRUCTION NO. 2(A) You, as jurors, are the judges of the facts. But in determining what actually happened in this case -- that is, in reaching your decision as to the facts -- it is your sworn duty to follow the law I am now in the process of defining for you. And you must follow all of my instructions as a whole. You have no right to disregard or give special attention to any one instruction, or to question the wisdom or correctness of any rule I may state to you. That is, you must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I give it to you, regardless of the consequences. By the same token it is also your duty to base your verdict solely upon the testimony and evidence in the case, without prejudice or sympathy. That was the promise you made and the oath you took before being accepted by the parties as jurors in this case, and they have the right to expect nothing less. COURT'S INSTRUCTION NO. 2(B) You, as jurors, are the judges of the facts. But in determining what actually happened in this case -- that is, in reaching your decision as to the facts -- it is your sworn duty to follow the law I am now in the process of defining for you. Unless otherwise stated, you should consider each instruction to apply separately and individually to each defendant on trial. And you must follow all of my instructions as a whole. You have no right to disregard or give special attention to any one instruction, or to question the wisdom or correctness of any rule I may state to you. That is, you must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I give it to you, regardless of the consequences. By the same token it is also your duty to base your verdict solely upon the testimony and evidence in the case, without prejudice or sympathy. That was the promise you made and the oath you took before being accepted by the parties as jurors in this case, and they have the right to expect nothing less. COURT'S INSTRUCTION NO. 3(A) The indictment or formal charge against a defendant is not evidence of guilt. Indeed, the defendant is presumed by the law to be innocent. The law does not require a defendant to prove his innocence or produce any evidence at all, and no inference whatever may be drawn from the election of a defendant not to testify. The government has the burden of proving him guilty beyond a reasonable doubt, and if it fails to do so you must acquit him. Thus, while the government's burden of proof is a strict or heavy burden, it is not necessary that the defendant's guilt be proved beyond all possible doubt. It is only required that the government's proof exclude any "reasonable doubt" concerning the defendant's guilt. A reasonable doubt is a doubt based upon reason and common sense, and may arise from a careful and impartial consideration of all the evidence, or from lack of evidence. Proof beyond a reasonable doubt is proof that leaves you firmly convinced that the defendant is guilty. If after a careful and impartial consideration with your fellow jurors of all the evidence, you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty. On the other hand, if after a careful and impartial consideration with your fellow jurors of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty. COURT'S INSTRUCTION NO. 3(B) The indictment or formal charge against a defendant is not evidence of guilt. Indeed, the defendant is presumed by the law to be innocent. The law does not require a defendant to prove his innocence or produce any evidence at all. The government has the burden of proving him guilty beyond a reasonable doubt, and if it fails to do so you must acquit him. Thus, while the government's burden of proof is a strict or heavy burden, it is not necessary that the defendant's guilt be proved beyond all possible doubt. It is only required that the government's proof exclude any "reasonable doubt" concerning the defendant's guilt. A reasonable doubt is a doubt based upon reason and common sense, and may arise from a careful and impartial consideration of all the evidence, or from lack of evidence. Proof beyond a reasonable doubt is proof that leaves you firmly convinced that the defendant is guilty. If after a careful and impartial consideration with your fellow jurors of all the evidence, you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty. On the other hand, if after a careful and impartial consideration with your fellow jurors of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty. COURT' INSTRUCTION NO. 4 As stated earlier, it is your duty to determine the facts, and in so doing, you must consider only the evidence I have admitted in the case. The term "evidence" includes the sworn testimony of the witnesses and the exhibits admitted in the record. Remember that any statements, objections or arguments made by the lawyers are not evidence in the case. The function of the lawyers is to point out those things that are most significant or most helpful to their side of the case, and in so doing, to call your attention to certain facts or inferences that might otherwise escape your notice. In the final analysis, however, it is your own recollection and interpretation of the evidence that controls in the case. What the lawyers say is not binding upon you. COURT'S INSTRUCTION NO. 5 There are rules of evidence which control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered and the exhibit cannot be received. Whenever I sustain an objection to a question, you must not speculate as to what the answer might have been or as to the reason for the objection. You must not consider for any purpose any offer of evidence that was rejected, or any evidence that was stricken from the record; such matter is to be treated as though you had never known of it. COURT'S INSTRUCTION NO. 6 During the course of a trial I occasionally make comments to the lawyers, or ask questions of a witness, or admonish a witness concerning the manner in which he should respond to the questions of counsel. Do not assume from anything I have said that I have any opinion concerning any of the issues in this case. Except for my instructions to you on the law, you should disregard anything I may have said during the trial in arriving at your own findings as to the facts. COURT'S INSTRUCTION NO. 7 In this case, the government and the defendant have agreed or stipulated, as to certain facts. This means that they both agree that these facts are true. You should therefore treat these facts as having been conclusively proved. COURT'S INSTRUCTION NO. 8 Evidence may be direct or circumstantial. Direct evidence is testimony by a witness about what the witness personally saw or heard or did. Circumstantial evidence is indirect evidence, that is proof of a chain of facts from which you could find that another fact exists, even though it has not been proved directly. So, while you should consider only the evidence in the case, you are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified in the light of common experience. In other words, you may make deductions and reach conclusions which reason and common sense lead you to draw from the facts which have been established by the testimony and evidence in the case. You are to consider both direct and circumstantial evidence. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any evidence. COURT'S INSTRUCTION NO. 9 Now I have said that you must consider all of the evidence. This does not mean, however, that you must accept all of the evidence as true or accurate. You are the sole judges of the credibility or "believability" of each witness and the weight to be given to his testimony. In weighing the testimony of a witness, you should consider his relationship to the government or the defendant; his interest, if any, in the outcome of the case; his manner of testifying; his opportunity to observe or acquire knowledge concerning the facts about which he testified; his candor, fairness and intelligence; and the extent to which he has been supported or contradicted by other credible evidence. You may, in short, accept or reject the testimony of any witness in whole or in part. Also, the weight of the evidence is not necessarily determined by the number of witnesses testifying as to the existence or non-existence of any fact. You may find that the testimony of a smaller number of witness as to any fact is more credible than the testimony of a larger number of witnesses to the contrary. COURT'S INSTRUCTION NO. 10 The rules of evidence provide that if scientific, technical, or other specialized knowledge might assist the jury in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify and state his opinion concerning such matters. You should consider each expert opinion received in evidence in this case and give it such weight as you may think it deserves. 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 that the opinion is outweighed by other evidence, then you may disregard the opinion entirely. COURT'S INSTRUCTION NO. 11 A witness may be discredited or "impeached" by contradictory evidence, by a showing that he testified falsely concerning a material matter, or by evidence that at some other time the witness said or did something that is inconsistent with the witness' present testimony or failed to say or do something that would be consistent with the present testimony had it been said or done. A witness may also be discredited or impeached by evidence that the general reputation of the witness for truth and veracity is bad in the community where the witness now resides, or has recently resided. If you believe that any witness has been so impeached, then it is your exclusive province to give the testimony of that witness such credibility or weight, if any, as you may think it deserves. COURT'S INSTRUCTION NO. 12 The fact that a witness has previously been convicted of a felony, or a crime involving dishonesty or false statement, is also a factor you may consider in weighing the credibility of that witness. The fact of such a conviction does not necessarily destroy the witness' credibility, but is one of the circumstances you may take into account in determining the weight to be given to his testimony. COURT'S INSTRUCTION NO. 13(A) A stated earlier, a defendant has a right not to testify. If a defendant does testify, however, his testimony should be weighed and considered, and his credibility determined, in the same way as that of any other witness. COURT'S INSTRUCTION NO. 13(B) As stated earlier, a defendant has a right not to testify. If a defendant does testify, however, his testimony should be weighed and considered, and his credibility determined, in the same way as that of any other witness. Evidence of a defendant's previous conviction of a crime is to be considered by you only insofar as it may affect the credibility of the defendant as a witness, and must never be considered as evidence of guilt of the crime for which the defendant is on trial. COURT'S INSTRUCTION NO. 14 You will note that the indictment charges that the offense was committed "on or about" a certain date. The proof need not establish with certainty the exact date of the alleged offense. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged. COURT'S INSTRUCTION NO. 15 The word "knowingly," as that term has been used from time to time in these instructions, means that the act was done voluntarily and intentionally and not because of mistake or accident. COURT'S INSTRUCTION NO. 16 The word "willfully," as that term has been used from time to time in these instructions, means that the act was committed voluntarily and purposely, with the specific intent to do something the law forbids. COURT'S INSTRUCTION NO. 17(A) I caution you, members of the Jury, that you are here to determine the guilt or innocence of the accused from the evidence in this case. The defendant is not on trial for any act or conduct or offense not alleged in the indictment. Neither are you called upon to return a verdict as to the guilt or innocence of any other person or persons not on trial as a defendant in this case. Also, the punishment provided by law for the offense charged in the indictment is a matter exclusively within the province of the court or judge, and should never be considered by the jury in any way, in arriving at an impartial verdict as to the guilt or innocence of the accused. COURT'S INSTRUCTION NO. 17(B) A separate crime or offense is charged in each count of the indictment. Each charge and the evidence pertaining to it should be considered separately. The fact that you may find the defendant guilty or not guilty as to one of the offenses charged should not control your verdict as to any other offense charged. I caution you, members of the Jury, that you are here to determine the guilt or innocence of the accused from the evidence in this case. The defendant is not on trial for any act or conduct or offense not alleged in the indictment. Neither are you called upon to return a verdict as to the guilt or innocence of any other person or persons not on trial as a defendant in this case. Also, the punishment provided by law for the offense charged in the indictment is a matter exclusively within the province of the court or judge, and should never be considered by the jury in any way, in arriving at an impartial verdict as to the guilt or innocence of the accused. COURT'S INSTRUCTION NO. 17(C) The case of each defendant and the evidence pertaining to him should be considered separately and individually. The fact that you may find one of the defendants guilty or not guilty should not control your verdict as to any other defendant. I caution you, members of the Jury, that you are here to determine the guilt or innocence of the accused from the evidence in this case. The defendants are not on trial for any act or conduct or offense not alleged in their respective indictments. Neither are you called upon to return a verdict as to the guilt or innocence of any other person or persons not on trial as a defendant in this case. Also, the punishment provided by law for the offense charged in the indictment is a matter exclusively within the province of the court or judge, and should never be considered by the jury in any way, in arriving at an impartial verdict as to the guilt or innocence of the accused. COURT'S INSTRUCTION NO. 17(D) A separate crime or offense is charged against one or more of the defendants in each count of the indictment. Each offense, and the evidence pertaining to it should be considered separately. Also, the case of each defendant should be considered separately and individually. The fact that you may find one or more of the accused guilty or not guilty of any of the offenses charged should not control your verdict as to any other offense or any other defendant. I caution you, members of the Jury, that you are here to determine the guilt or innocence of the accused from the evidence in this case. The defendants are not on trial for any act or conduct or offense not alleged in their respective indictments. Neither are you called upon to return a verdict as to the guilt or innocence of any other person or persons not on trial as a defendant in this case. Also, the punishment provided by law for the offense charged in the indictment is a matter exclusively within the province of the court or judge, and should never be considered by the jury in any way, in arriving at an impartial verdict as to the guilt or innocence of the accused. COURT'S INSTRUCTION NO. 18 Any verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. In other words, your verdict must be unanimous. It is your duty as jurors, to consult with one another, and to deliberate in an effort to reach agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. 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'S INSTRUCTION NO. 19(A) Upon retiring to the jury room you should first select one of your number to act as your foreperson who will preside over your deliberations and will be your spokesman here in court. A form of verdict has been prepared for your convenience. [Explain verdict] 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 it in, date and sign it, and then return to the courtroom. 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 marshal 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. I caution you, however, with regard to any message or question you might send, that you should never state or specify your numerical division at the time. COURT'S INSTRUCTION 19(B) Upon retiring to the jury room you should first select one of your number to act as your foreperson who will preside over your deliberations and will be your spokesman here in court. Forms of verdicts have been prepared for your convenience. [Explain verdict] You will take the verdict forms to the jury room and when you have reached unanimous agreement as to your verdicts, you will have your foreperson fill them in, date and sign them, and then return to the courtroom. 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 marshal 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. I caution you, however, with regard to any message or question you might send, that you should never state or specify your numerical division at the time.

=== Electronic Devices ===

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAW All FILED IN THE UNITED STATES DISTRICT COURT DISTRICT OF HAWAII JUL 12 2011 at..1:_o'clock and .51) min. (J Mj SUE BEITIA, CLERK- AMENDED ORDER REGARDING ELECTRONIC DEVICES IN THE MAGISTRATE JUDGES' COURTROOMS OR CHAMBERS IN THE MATTER OF ) Electronic Device Policy for ) Attorneys of Record to Be Permitted to Bring Laptops, Cellular ) Telephones, PDAs, Electronic ) Notebooks or Tablets, Electronic Readers, and other Electronic ) Devices to Assist Them With a Court ) Matter Before the Magistrate Judges AMENDED ORDER REGARDING ELECTRONIC DEVICES IN THE MAGISTRATE JUDGES' COURTROOMS OR CHAMBERS Pursuant to the General Order issued by Chief Judge Helen Gillmor on November 6, 2008, all attorneys of record are authorized to bring into the courthouse laptops, cell phones, PDAs, electronic notebooks or tablets, electronic readers, and other electronic devices for the sole purpose of using the devices in connection with case-related proceedings in the Magistrate Judges' courtrooms or chambers. Any attorney of record bringing an electronic device into the courthouse pursuant to this order shall inform the court security officers at the entrance to the courthouse of the time of the attorney's proceedings and the name of the case. Persons other than attorneys of record (including paralegals or other legal staff, parties, and witnesses) are not authorized by this order to bring electronic devices into the courthouse. An attorney of record in a case before the Magistrate Judges is not authorized by this order to bring any electronic device into the courthouse when entering the courthouse for a matter other than a hearing before the Magistrate Judges or a case-related conference with the Magistrate Judges. No device may disrupt any court proceedings. For example, cell phones are always to be turned off upon entering the courthouse and turned on only with permission of court. In no event may any camera or audio/video equipment be used in the Magistrate Judges' courtrooms or chambers to photograph or to record on video or audio any proceedings. Anyone violating this order will be subject to sanctions. The Magistrate Judges may modify this order at their discretion in specific cases or for specific proceedings. IT IS SO ORDERED. 2 KEVIN~ c-:: 7 United States Magistrate Judge RICHARD L. PUGLISI United States Magistrate Judge IN THE MATTER OF Elech·onic Device Policy for Attorneys of Record to Be Permitted to Bring Laptops, Cellular Telephones, PDAs, Elech·onic Notebooks or Tablets, Elech·onic Readers, and other Elech·onic Devices to Assist Them With a Court Matter Before the Magish·ate Judges; AMENDED ORDER REGARDING ELECTRONIC DEVICES IN THE MAGISTRATE JUDGES' COURTROOMS AND CHAMBERS . 3

=== Emergency Discovery Telephone Conferences ===

UNITED STATES DISTRICT COURT DISTRICT OF HAWAII 300 ALA MOANA BLVD. HONOLULU, HAWAII 96850 KENNETH J. MANSFIELD TELEPHONE: (808) 541-1428 CHIEF UNITED STATES MAGISTRATE JUDGE COURTROOM 6 (2nd floor) ROM TRADER TELEPHONE: (808) 541-1480 UNITED STATES MAGISTRATE JUDGE COURTROOM 5 (2nd floor) WES REBER PORTER TELEPHONE: (808) 541-1433 UNITED STATES MAGISTRATE JUDGE COURTROOM 7 (2nd floor) EMERGENCY DISCOVERY TELEPHONE CONFERENCES WITH MAGISTRATE JUDGES “Counsel may seek resolution of disputed discovery issues expeditiously and economically” under Local Rule 37.1(c) of the Local Rules of Practice of the United States District Court for the District of Hawaii (Local Rules). After they meet and confer, counsel file and serve on opposing counsel abbreviated, simultaneous letter briefs on an agreeable date for “expedited discovery assistance.” LR37.1(a)(1). Upon receipt of the letters, the magistrate judge “shall determine a procedure for resolving the dispute” and may decide the matter, set a conference, request formal briefing with or without a hearing. LR37.1(a)(3). The magistrate judges also may address “emergency discovery disputes” by telephone conference if the following circumstances are met: 1. 2. 3. 4. The dispute must concern a narrow and discrete issue (e.g., improper objections or coaching during a deposition); Counsel agree1 that if the dispute is not heard on an “emergency” basis the parties will incur avoidable expenses, delay proceedings in the case, or suffer other unfair prejudice as a result; Counsel must be available (and flexible) to participate in a conference when the judge is available; and Counsel must call chambers and make scheduling arrangements with the assigned judge’s staff, including how the telephone conference will be memorialized (i.e., by the court reporter at a deposition or by the court’s FTR system). 1 The party seeking “emergency” relief may call the assigned judge without the opposing party’s agreement if the expense, delay and unfair prejudice is readily apparent to the court.

=== Form - Local Rule 37.1(b) Cert. of Compliance ===

CERTIFICATE OF COMPLIANCE I am counsel for the moving party in the above discovery motion and certify that counsel for the parties conferred [STATE IF IN PERSON OR BY TELEPHONE] on [INSERT DATE] concerning the disputed issue of [DESCRIBE DISPUTE HERE] in a good faith effort to limit the disputed issues and, if possible, eliminate the necessity for [STATE IF MOTION, DISCOVERY CONFERENCE AND/OR DISCOVERY LETTER BRIEFS] as required by L.R. 37.1(a).

=== Form - Stipulated Protective Order ===

STIPULATED PROTECTIVE ORDER In order to protect the confidentiality of confidential information obtained by the parties in connection with this case, the parties hereby agree as follows: 1. Any party or non-party may designate as “confidential” (by stamping the relevant page or other otherwise set forth herein) any document or response to discovery which that party or non-party considers in good faith to contain information involving trade secrets, or confidential business or financial information, subject to protection under the Federal Rules of Civil Procedure or Hawai`i law (“Confidential Information”). Where a document or response consists of more than one page, the first page and each page on which confidential information appears shall be so designated. 2. A party or non-party may designate information disclosed during a deposition or in response to written discovery as “confidential” by so indicating in said response or on the record at the deposition and requesting the preparation of a separate transcript of such material. Additionally, a party or non-party may designate in writing, within twenty (20) days after receipt of said responses or of the deposition transcript for which the designation is proposed, that specific pages of the transcript and/or specific responses be treated as “confidential” information. Any other party may object to such proposal, in writing or on the record. Upon such objection, the parties shall follow the procedures described in paragraph 8 below. After any designation made according to the procedure set forth in this paragraph, the designated documents or information shall be treated according to the designation until the matter is resolved according to the procedures described in paragraph 8 below, and counsel for all parties shall be responsible for making all previously unmarked copies of the designated material in their possession or control with the specified designation. 3. All information produced or exchanged in the course of this case (other than information that is publicly available) shall be used by the party or parties to whom the information is produced solely for the purpose of this case. 4. Except with the prior written consent of other parties, or upon prior order of this Court obtained upon notice to opposing counsel, Confidential Information shall not be disclosed to any person other than: (a) counsel for the respective parties to this litigation, including in-house counsel and co-counsel retained for this litigation; (b) employees of such counsel; (c) individual defendants, class representatives, any officer or employee of a party, to the extent deemed necessary by Counsel for the prosecution or defense of this litigation; (d) consultants or expert witnesses retained for the prosecution or defense of this litigation, provided that each such person shall execute a copy of the Certification annexed to this Order as Exhibit “A” (which shall be retained by counsel to the party so disclosing the Confidential Information and made available for inspection by opposing counsel during the pendency or after the termination of the action only upon good cause shown and upon order of the Court) before being shown or given any Confidential Information and provided that if the party chooses a consultant or expert employed by [THE CORPORATE DEFENDANT] or one of its competitors (as listed on Appendix A), the party shall notify the opposing party, or designating non- party, before disclosing any Confidential Information to that individual and shall give the opposing party an opportunity to move for a protective order preventing or limiting such disclosure; (e) any authors or recipients of the Confidential Information; (f) the Court, Court personnel, and court reporters; and (g) witnesses (other than persons described in paragraph 4(e . A witness shall sign the Certification before being shown a confidential document. Confidential Information may be disclosed to a witness who will not sign the Certification only in a deposition at which the party who designated the Confidential Information is represented or has been given notice that Confidential Information shall be designated “Confidential” pursuant to paragraph 2 above. Witnesses shown Confidential Information shall not be allowed to retain copies. 5. Any persons receiving Confidential Information shall not reveal or discuss such information to or with any person who is not entitled to receive such information, except as set forth herein. 6. No party or non-party shall file or submit for filing as part of the court record any documents under seal without first obtaining leave of court. Notwithstanding any agreement among the parties, the party seeking to file a paper under seal bears the burden of overcoming the presumption in favor of public access to papers filed in court . 7. A party may designate as “Confidential” documents or discovery materials produced by a non-party by providing written notice to all parties of the relevant document numbers or other identification within thirty (30) days after receiving such documents or discovery materials. Any party or non-party may voluntarily disclose to others without restriction any information designated by that party or non-party as confidential, although a document may lose its confidential status if it is made public. 8. If a party contends that any material is not entitled to confidential treatment, such party may at any time give written notice to the party or non-party who designated the material. The party or non-party who designated the material shall have twenty-five (25) days from the receipt of such written notice to apply to the Court for an order designating the material as confidential. The party or non-party seeking the order has the burden of establishing that the document is entitled to protection. 9. Notwithstanding any challenge to the designation of material as Confidential Information, all documents shall be treated as such and shall be subject to the provisions hereof unless and until one of the following occurs: (a) the party or non-party claims that the material is Confidential Information withdraws such designation in writing; or (b) the party or non-party who claims that the material is Confidential Information fails to apply to the Court for an order designating the material confidential within the time period specified above after receipt of a written challenge to such designation; or (c) the Court rules the material is not confidential. 10. All provisions of this Order restricting the communication or use of Confidential Information shall continue to be binding after the conclusion of this action, unless otherwise agreed or ordered. Upon conclusion of the litigation, a party in the possession of Confidential Information, other than that which is contained in pleadings, correspondence, and deposition transcripts, shall either (a) return such documents no later than thirty (30) days after conclusion of this action to counsel for the party or non-party who provided such information, or (b) destroy such documents within the time period upon consent of the party who provided the information and certify in writing within thirty (30) days that the documents have been destroyed. 11. The terms of this Order do not preclude, limit, restrict, or otherwise apply to the use of documents at trial. 12. Nothing herein shall be deemed to waive any applicable privilege or work product protection, or to affect the ability of a party to seek relief for an inadvertent disclosure of material protected by privilege or work product protection. 13. Any witness or other person, firm or entity from which discovery is sought may be informed of and may obtain the protection of this Order by written advice to the parties’ respective counsel or by oral advice at the time of any deposition or similar proceeding. CERTIFICATION I hereby certify my understanding that Confidential Information is being provided to me pursuant to the terms and restrictions of the Protective Order dated in , Civil No. , . I have been given a copy of that Order and read it. I agree to be bound by the Order. I will not reveal the Confidential Information to anyone, except as allowed by the Order. I will maintain all such Confidential Information –- including copies, notes, or other transcriptions made therefrom –- in a secure manner to prevent unauthorized access to it. No later than thirty (30) days after the conclusion of this action, I will return the Confidential Information –- including copies, notes or other transcriptions made therefrom – to the counsel who provided me with the Confidential Information. I hereby consent to the jurisdiction of the United States District Court for the purpose of enforcing the Protective Order. DATED: . EXHIBIT “A”

=== Settlement Term Sheet ===

SETTLEMENT TERM SHEET CASE NAME: CASE NO. DATE: A. PAYMENT OF MONEY 1. To: 2. From: 3. Total amount to be paid: $ 4. When: 5. Payment terms (e.g., to whom checks will be written, number of payments, payment schedule, etc.): 6. Any third party liens to be paid from proceeds? Yes No . a. If yes, to whom: 7. Tax Treatment (e.g., W-2, 1099): B. SELECT A RELEASE OPTION 1. One way. Yes No . a. If Yes: From b. To or 2. Mutual. Yes No . 3. Scope of Release: a. General Release 1. All claims raised in the litigation , or 2. All existing claims, whether or not raised in the litigation . or 1 b. Limited Release(terms): C. INDEMNIFICATION? 1. One way. Yes No . a. If Yes: From b. To or 2. Mutual. Yes or No . 3. Scope: D. CONFIDENTIALITY 1. Settlement Agreement to be confidential? Yes or No . 2. Mutual confidentiality? Yes or No . 3. What can be said about litigation? a. Dispute amicably resolved. b. Other: 2 4. Exceptions to confidentiality? a. Attorneys. b. Tax advisors. c. Immediate family. d. As otherwise required by law. e. Other: E. OTHER SETTLEMENT TERMS 1. No admission of liability. 2. Each party to bear its own attorneys’ fees and costs. 3. Other Terms: 3 F. GOOD FAITH SETTLEMENT PETITION 1. Will a petition for good faith settlement be filed? Yes No . a. If yes, who will file? b. Deadline to file the petition: c. Will parties join? Yes No . d. Anticipated Opposition? Yes or No . 2. Is Settlement Agreement conditioned on a finding that it is in good faith? Yes or No . G. DOCUMENTING SETTLEMENT 1. The written agreement will be a. prepared by: b. and sent to other parties on or before: c. other parties to respond with changes, if any, by: 2. Agreement to be fully executed on or before: 3. Other terms regarding settlement documentation: H. DISMISSAL 1. Dismissal WITH or WITHOUT prejudice . 2. Stipulation for dismissal to be submitted no later than I. DO PARTY REPRESENTATIVES HAVE FULL AUTHORITY TO ENTER INTO BINDING SETTLEMENT AGREEMENT? Yes or No . 4 1. Print the name, title and identity of each party: 2. Signatures of all party representatives: __________________________________________________________ 5