Pretrial Procedures; Civil Jury Instructions; Criminal Jury Instructions; Trial Procedures for Magistrate Judges; Emergency Discovery Telephone Conferences; Standing Order Regarding Settlement Conferences; Form Stipulated Protective Order; Form Stipulated Protective Order

=== Pretrial Procedures ===

UNITED STATES DISTRICT COURT DISTRICT OF HAWAII 300 ALA MOANA BLVD. HONOLULU, HAWAII 96850 WES REBER PORTER UNITED STATES MAGISTRATE JUDGE WRP CHAMBERS (3rd floor) COURTROOM 7 (2nd floor) PRETRIAL PROCEDURES IN CIVIL CASES BEFORE MAGISTRATE JUDGE PORTER (WRP) For questions about procedures and scheduling in civil cases, contact the chambers staff or courtroom manager: WRP Chambers Courtroom Manager Mary Feria (808) 541-3087 [email protected] (808) 541-1433 For additional numbers and information, consult the court’s website (www.hid.uscourts.gov). The purpose of this memorandum is to provide general information about the pretrial procedures for cases before Magistrate Judge Porter (generally, cases with WRP in the case number). The court also expects counsel and parties proceeding pro se to know and comply with the Federal Rules of Civil Procedure (FRCP), the Federal Rules of Evidence (FRE), and the Local Rules of Practice for the U.S. District Court for the District of Hawai`i (Local Rules or L.R.). These pretrial procedures and other forms can be found under Judges’ Requirements on the U.S. District Court for the District of Hawaii website. 1. Rule 16 Conferences: The court holds a Rule 16 scheduling conference within 90 days after the initial filing for assigned civil cases (WRP cases). See FRCP 16. At the conference, counsel or parties proceeding pro se must be prepared to discuss, among other things, the following topics: (1) the prospect of early settlement discussions or private mediation; (2) any (anticipated) discovery problems; (3) any pending (or anticipated) motions; and (4) consenting to a trial or proceeding before a Magistrate Judge. a. 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 and defenses and the possibilities for settlement or other resolution. See FRCP 26(f). WRP Pretrial Procedures 1 Last Revised: 3/11/2020 b. Scheduling Conference Statement: The parties must file with the court and serve on all parties a Scheduling Conference Statement at least 7 days before the conference. See L.R. 16.2. This statement includes a brief statement of the case, statement of jurisdiction, list of related cases, whether jury trial has been demanded, discovery (completed and anticipated) and motions pending with hearing dates. c. Rule 16 Scheduling Conference Order: Following the conference, the court will issue an Order that sets forth dates and deadlines for: (1) trial; (2) final pretrial conference; (3) motions to join or add parties or amend pleadings; (4) other nondispositive motions; (5) dispositive motions; (6) motions in limine; (7) expert disclosures; (8) discovery; (9) settlement conference; (10) settlement conference statements; (11) voir dire questions, special verdict form, concise statement of case and jury instructions (if jury trial); (12) final witness list; (13) exhibit and demonstrative aids; (14) stipulations about proposed exhibits; (15) deposition designations and counter-designations; (16) trial briefs; and (17) findings of fact and conclusions of law (if non-jury trial). 2. Discovery: The court presides over discovery disputes in assigned civil cases (WRP cases). a. E-Discovery (ESI) Guidelines: The Guidelines, Checklist and Model Stipulated Order links on the “How To Guidance” page of the court’s website are court-approved and counsel should consult them at the beginning of a case. All counsel are expected to review the Guidelines. The Checklist and Model Stipulated Order themselves are highly recommended, but their use is voluntary. b. Mandatory Meet and Confer Requirement: The court will not entertain a discovery motion nor hold a discovery conference unless counsel or pro se parties have met and conferred in a good faith effort to limit the disputed issues. See L.R. 37.1(a). If a party files a discovery motion, they also must certify compliance with this requirement with a declaration. See L.R. 37.1(b). c. Expedited Discovery Assistance: The court encourages counsel to take advantage of the expedited discovery assistance available under WRP Pretrial Procedures 2 Last Revised: 3/11/2020 Local Rule 37.1(c). Local Rule 37.1 is intended to afford a swift but full opportunity for parties to present their positions through simultaneous, abbreviated letter briefing (five pages or less of written materials including exhibits). See L.R. 37.1(c)(1). Counsel seeking the court’s expedited assistance in resolving discovery issues should select an agreed-upon deadline for the simultaneous submission of letter briefs and inform chambers’ staff of the deadline. Id. After reviewing the letter briefs, the court will decide the matter or determine whether a conference, more formal briefing or hearing is necessary to decide the matter expeditiously. See L.R. 37.1(c)(3). d. Emergency Discovery Telephone Conferences: As set forth under Judges’ Requirements on the court’s website, the court also may address “emergency discovery disputes” by telephone conference if the following circumstances are met: (1) The dispute must concern a narrow and discrete issue (e.g., improper objections or coaching during a deposition); (2) Counsel agree 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; (3) Counsel must be available (and flexible) to participate in a conference when the judge is available; and (4) Counsel must call chambers and make scheduling arrangements with the 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). e. Formal Discovery Motions: While parties may file formal motions to compel and motions for protective orders to address each and every discovery dispute, collectively these motions are often less efficient and more time consuming (thus, more costly). The court will likely set a briefing schedule in the normal course for each formal discovery motion and will decide these motions without the need for a hearing. See L.R. 7.1. WRP Pretrial Procedures 3 Last Revised: 3/11/2020 3. Stipulated Protective Order: Where practicable, counsel or pro se parties should seek agreement for production of confidential documents pursuant to a stipulated protective order. a. b. A form of a stipulated protective order can be found under Judges’ Requirements on the court’s website. Under Local Rule 5.2(b), “[a] stipulation or blanket protective order that allows a party to designate matters to be filed under seal will not suffice to allow the filing of the matter under seal.” L.R. 5.2(b) (emphasis added); see How to Move to File a Document Under Seal. 4. Settlement Conferences: The court schedules a settlement conference in the normal course (typically, 9-12 months out) at the Rule 16 Scheduling Conference. a. b. c. d. During the Rule 16 conference, the court will ask counsel and pro se parties whether an early settlement conference may be productive. Parties routinely schedule with the court an additional, earlier settlement conference, after some limited discovery (typically, 3-9 months out), to save time and costs in the litigation. The court issues an order describing the procedures for the settlement conference including who must be present and the requirements of confidential settlement statements. Parties must submit confidential settlement conference statements at least 7 days before the conference in hard-copy to chambers and follow the requirements in Local Rule 16.5. See L.R. 16.5(b)(1). If a WRP case settles, parties shall notify chambers as soon as possible. Before the court will vacate all dates and deadlines, counsel and parties proceeding pro se should be prepared to place the material terms of the settlement on the record, by telephone or in person, or submit a settlement agreement or joint letter that sets forth the material terms. An attorney who fails to give the court prompt notice of settlement may be subject to such discipline as the court deems appropriate. WRP Pretrial Procedures 4 Last Revised: 3/11/2020 5. 6. 7. 8. Trial (Other Deadline) Continuances: The parties must file a motion or joint stipulation to continue trial or other related deadlines. Even if by stipulation or an unopposed motion, the parties must provide sufficient information for the court to find “good cause” for modifying a schedule under Rule 16(b)(4). Status Conferences: In accordance with Local Rule 16.10, the court may hold status conferences only as necessary to facilitate the progress of the case. See L.R. 16.10. Status conferences may be requested by a party and, if necessary, the court may request letter submissions from the parties in advance. Final Pretrial Conferences: The court sets the final pretrial conference and all trial related deadlines 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) status of settlement discussions; (2) estimated number of trial days; (3) number and scheduling of witnesses; (4) special needs such as interpreters or audiovisual equipment; and (5) exhibits and motions in limine. Forms: The court advises counsel and parties to consult the clerk’s office and review the forms found under Judges’ Requirements and Forms tabs 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. WRP Pretrial Procedures 5 Last Revised: 3/11/2020 9. Consent Trials (and Other Proceedings): If the parties consent, Magistrate Judges are available to conduct all proceedings in a civil case, including: (1) jury and non-jury trial; (2) dispositive motions; (3) entering a final judgment; and (5) post-judgment proceedings, particularly attorney fee applications. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; L.R. 73.1, 73.2. a. b. c. d. e. Deciding to Consent to a Magistrate Judge: The parties must weigh several factors when making the decision to consent to a Magistrate Judge including scheduling considerations. See How To Consent to a Magistrate Judge in a Civil Case (guidance from our district); see also Choosing to Consent to a Magistrate Judge, Federal Lawyer (2014). Scheduling Considerations: District Judges are assigned both civil and criminal cases, and criminal cases are given a calendar priority. Magistrate judges are not assigned felony criminal trials and do not “double book” their trial calendars; thus, Magistrate Judges may be more readily available. In other words, a Magistrate Judge can offer a firm trial date while a District Judge cannot. Choose a Magistrate Judge: After a case is initially assigned, the parties may consent to a particular Magistrate Judge. That is, the parties need not consent to the Magistrate Judge assigned to the case. See LR 73.1(a). Chambers staff can assist the parties with looking into available trial dates for the district’s three Magistrate Judges. Consent Form: To consent to a magistrate judge for trial or nondispositive motion, the parties must sign and file a consent form from the Clerk’s office, a courtroom manager, or the forms tab on the court’s website: trial, motion. Appeals: If all parties consent to a Magistrate Judge, the Magistrate Judge then has the same jurisdiction over a civil case or matter as the District Judge. Any matter ruled on by a Magistrate Judge by consent must be appealed directly to the Ninth Circuit Court of Appeals. See 28 U.S.C. § 636(c)(3); Fed. R. Civ. P. 73(c). WRP Pretrial Procedures 6 Last Revised: 3/11/2020

=== 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

=== 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.

=== 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

=== 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.

=== Standing Order Regarding Settlement Conferences ===

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII STANDING ORDER REGARDING SETTLEMENT CONFERENCES AND SETTLEMENT PROCEDURES BEFORE MAGISTRATE JUDGE WES REBER PORTER All parties who appear for a settlement conference before Magistrate Judge Wes Reber Porter, either on the date required in a Rule 16 Scheduling Order, an “early settlement conference” requested by the parties, or otherwise (the settlement conference), must comply with the requirements set forth in Local Rule 16.5 and this Standing Order. The purpose of the settlement conference is to facilitate the resolution of a civil case. It will be conducted in such a manner as not to prejudice any party in the event settlement is not reached. To that end, all matters communicated to the Court in confidence will be kept confidential, and will not be disclosed to any other party, or to the trial judge. The Court’s assistance in settlement generally. Settlement discussions may be appropriate at any stage of the litigation. Productive settlement discussions, with or without assistance from the Court, occur prior to the Rule 16 scheduling conference, leading up to significant deadlines in the case, following the briefing on a dispositive motion, while awaiting a ruling from the trial judge, during trial preparation, and at all other times. To that end, the Court can assist Standing Order re: Settlement (WRP) with settlement efforts at times other than at the settlement conference. For example, the Court’s work in settlement is often disaggregated into shorter communications and conferences with one party only. The Court can also assist the parties, after they have met and conferred, with scheduling and resetting a settlement conference. If the Court can be helpful to a party in settlement, including prior to the settlement conference, then send an email to [email protected] or contact Ms. Jocelyn Orosz, courtroom manager for Judge Porter. The Court’s expectations for the parties and counsel. The settlement conference1 should follow and build upon meaningful settlement discussions between the parties. Settlement conferences are too often unproductive because the parties have not made a serious effort to settle the case on their own prior to the conference. Accordingly, before the settlement conference, the parties are ordered to make a good faith effort to settle the case without the involvement of 1 At this time, all settlement conferences will continue to be conducted remotely by Video Teleconference (VTC) and the Court will provide details regarding VTC access prior to the conference date. When the Court resumes holding in-person settlement conferences, any request for a party or party representative to be excused from attendance, or to attend remotely, must be made by letter to the Court copied to all counsel. In considering whether to grant such a request, the Court will consider the parties’ settlement efforts to date and the logistics of requiring attendance. The Court is more likely to grant requests to be excused from attendance or to attend remotely for early settlement conferences and in situations where the parties have demonstrated serious efforts to settle prior to the conference. 2 Standing Order re: Settlement (WRP) the Court. A good faith effort to settle includes, at the very least, exchanged demands and offers, as well as specific proposals and counter proposals with respect to the key terms of settlement. The Court may vacate a settlement conference if the parties do not comply with this Standing Order, including the requirement to exchange demands and offers. Similarly, if the settlement conference, particularly an early settlement conference requested by the parties, is premature or otherwise likely to not be productive, then the parties should request to reschedule the conference by email to [email protected] or contact Ms. Jocelyn Orosz prior to the deadline to submit confidential settlement conference statements to the Court. Who will participate in the settlement conference? In addition to the lead counsel, each party or a designated representative with final settlement authority2 must attend the settlement conference. The order for parties’ appearance is intended to increase the efficiency and effectiveness of the settlement conference 2 “Final settlement authority” means that the representative at the settlement conference must be authorized to explore settlement options fully and to agree at that time to any settlement terms acceptable to the parties. See Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989). The person should have “unfettered discretion and authority” to change the settlement position of a party. See Pitman v. Brinker Int’l, Inc., 216 F.R.D. 481, 485-86 (D. Ariz. 2003). The purpose of requiring a person with unlimited settlement authority to attend the conference contemplates that the person’s view of the case may be altered during the face-to-face conference. Id. at 486. A limited or sum certain authority is not adequate. See Nick v. Morgan’s Foods, Inc., 279 F.3d 590, 595-97 (8th Cir. 2001). 3 Standing Order re: Settlement (WRP) by reducing the time for communication of offers and expanding the ability to explore options for settlement. If a defendant is insured, an adjuster or other representative of that defendant’s insurer with final settlement authority also must attend the settlement conference. Confidential Settlement Statements. Each party shall submit to the Court a confidential settlement conference statement by a deadline set by the Court, typically no later than seven (7) days before the conference. The confidential settlement conference statement is not a trial brief nor a dispositive motion. Instead, it is an outline that includes (i) a brief description of the case, (ii) legal issues and factual disputes that may impact settlement, (iii) the extent of discovery and motions practice conducted, and yet to be conducted, and (iv) a status of the settlement negotiations. Settlement discussions may, and should, continue after the parties submit their statements to the Court. Unless otherwise ordered, the confidential settlement conference statement must be emailed to the Court at [email protected]. Paper copies must also be provided to the Court if a party’s submission, including exhibits, exceeds twenty-five (25) pages.3 3 Confidential settlement conference statements should only exceed 25 pages or include a significant number of exhibits in rare cases with complex legal issues or factual disputes that may impact settlement discussions. It is not helpful to the Court for parties to include lengthy legal arguments from dispositive 4 Standing Order re: Settlement (WRP) At the settlement conference. At the settlement conference, we will first meet with all parties together and thereafter we will separate into confidential caucuses. The presentations and discussion at the settlement conference, particularly while all parties are together, shall aim only to foster settlement. That is, the settlement conference is not intended for advocating a legal or factual position in the litigation, conducting discovery, nor resolving other disputes between parties. While all parties are together, the parties should update the Court on the progression of settlement discussions within the week prior to the conference and after the parties submitted their statements. Once separated into separate caucuses, the Court will speak directly with the client or representative (or, when applicable, the adjuster) about the facts of the case and their settlement positions. The Court may ask questions and offer a candid assessment of the case and the risks of proceeding without settling. The Court can best aid settlement discussions when the client or representative and their counsel are equally candid about their case and settlement positions. It is counsel’s responsibility to prepare their client or representative for the settlement discussion with the Court. motions or other briefs or to append numerous or lengthy exhibits to their statement that are more appropriate for a pretrial motion or trial brief. 5 Standing Order re: Settlement (WRP) Settlement on the record. At any time during the litigation, the parties may contact the Court to request a settlement on the record. If a settlement is reached during the settlement conference, then the Court may proceed directly into a settlement on the record. Counsel should review the key terms of settlement with all other counsel and their respective clients prior to the settlement on the record. The Court expects counsel to have conferred with the opposing counsel and their clients about all key terms in a settlement prior to placing it on the record. If the terms of settlement are acceptable to the Court, the Court will find that the parties have entered into a valid and enforceable settlement and, accordingly, vacate all dates and deadlines remaining in the case. Typically, the Court also will provide the parties a deadline to submit a Stipulation for Dismissal to the trial judge’s Orders email. The Court expects the parties to sign the settlement documents and, when applicable, pay the money agreed to in settlement before the deadline to submit the Stipulation for Dismissal. Following the settlement conference. In many cases, the parties (and the Court) continue to work toward settlement after the settlement conference. Assuming there is no settlement on the record following the settlement conference, the parties should continue to evaluate their settlement positions and discuss settlement through the case. The parties may involve the Court in settlement discussions following the settlement conference, including meeting with one party 6 Standing Order re: Settlement (WRP) only to discuss a next demand, offer or other settlement terms or ideas and conveying the offer or demand to the opposing side. If the Court can be helpful to a party in settlement, including after the settlement conference, then send an email to [email protected] or contact Ms. Jocelyn Orosz. IT IS SO ORDERED. DATED AT HONOLULU, HAWAII, SEPTEMBER 12, 2022. \V es Reber Porter United States Magistrate Judge STANDING ORDER REGARDING SETTLEMENT CONFERENCES AND SETTLEMENT PROCEDURES BEFORE MAGISTRATE JUDGE WES REBER PORTER 7

=== 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”

=== 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”