Special Provisions for Patent, Copyright, or Trademark Cases Unless otherwise directed by the Evaluator, the following provisions apply to the written ENE statements submitted under ADR L.R. 5-8

(a) Patent Cases. When a claim in a case alleges infringement of a utility patent, or when a party seeks a declaratory judgment that a utility patent is not infringed, is invalid, or is unenforceable, each party must attach to its written ENE statement a copy of each document the party has been required to generate (by the date the written ENE statements are due) under Patent L.R. 3-1, 3-3, or 3-5(a), or under any case-specific order modifying the requirements of these provisions of the Patent Local Rules. A party whose duty has arisen only under Patent L.R. 3-5(a) may satisfy the requirements hereby imposed by attaching to its written ENE statement a copy of documents it was required to generate under Patent L.R. 3-3. (b) Copyright Cases.

To the extent then known or readily available and feasible, a party who bases a claim on copyright must include as exhibits the copyright registration (or, if there is no relevant copyright registration yet, the relevant copyright application) and one or more demonstrative exemplars of the copying and infringement. Such party must also present whatever direct or indirect evidence it has of copying, and shall indicate whether it intends to elect statutory or actual damages. Each party in a copyright case who is accused of infringing shall set forth in its written statement the dollar volume of sales of and profits from the allegedly infringing works that it and any entities for which it is legally responsible have made. (c) Trademark Cases.

To the extent then known or readily available and feasible, a party who bases a claim on trademark or trade dress infringement, or on other unfair competition, must include as an exhibit its registration, if any, exemplars of both its use of its mark and use of the allegedly infringing mark, both including a description or representation of the goods or services on or in connection with which the marks are used, and any evidence it has of actual confusion. If “secondary meaning” is in issue, such a party must also describe the nature and extent of the advertising it has done with its mark and the volume of goods it has sold under its mark. Both parties must describe in their Evaluation statements how the consuming public is exposed to their respective marks and goods or services, including, if available, photographic or other demonstrative USDC ADR Local Rules – Effective May 1, 2018 ADR-12 evidence. Each party in a trademark or unfair competition case who is accused of infringement must set forth the dollar volume of sales of and profits from goods or services bearing the allegedly infringing mark.

5-10. Attendance at Session (a) Parties. All named parties and their counsel are required to attend the ENE session in person unless excused under paragraph (d) below. This requirement reflects the Court’s view that the principal values of ENE include affording litigants opportunities to articulate directly to other parties and a neutral their positions and interests and to hear, first hand, both their opponent’s version of the matters in dispute and a neutral assessment of the merits of the case and the relative strengths of each party’s legal positions.

(1) Corporation or Other Non-Governmental Entity. A party other than a natural person (e.g., a corporation or an association) satisfies this attendance requirement if represented by a person (other than outside counsel) who has final authority to settle and who is knowledgeable about the facts of the case. If final authority to settle is vested only in a governing board, claims committee, or equivalent body and cannot be delegated to a representative, an entity must disclose (in writing or electronically) this fact to all other parties and the Evaluator at least 14 days before the ENE session will occur. This required disclosure must identify the board, committee, body, or persons in whom final settlement authority is vested.

In this instance the party must send the person (in addition to counsel of record) who has, to the greatest extent feasible, authority to recommend a settlement, and who is knowledgeable about the facts of the case, the entity’s position, and the procedures and policies under which the entity decides whether to accept proposed settlements. (2) Government Entity. A unit or agency of government satisfies this attendance requirement if represented by a person (in addition to counsel of record) who has, to the greatest extent feasible, authority to settle, and who is knowledgeable about the facts of the case, the governmental unit’s position, and the procedures and policies under which the governmental unit decides whether to accept proposed settlements. If the action is brought by the government on behalf of one or more individuals, at least one such individual also must attend.

(b) Counsel. Each party must be accompanied at the ENE session by the lawyer who will be primarily responsible for handling the trial of the matter. (c) Insurers. Insurer representatives are required to attend in person unless excused under paragraph (d) below, if they have accepted coverage, or the duty to defend, even if subject to a reservation of rights.

(d) Request to be Excused. A person who is required to attend an ENE session may be excused from attending in person only after a showing that personal attendance would impose an extraordinary or otherwise unjustifiable hardship. A person seeking to be excused must submit, no fewer than 14 days before the date set for the session, a letter to the ADR Magistrate Judge in care of the ADR Unit at the address listed in ADR L.R. 2- 1(c), or emailed to [email protected], simultaneously copying all counsel and the Evaluator. The letter must: (1) Set forth all considerations that support the request; (2) State realistically the amount in controversy in the case; (3) Identify by name and title or status the individual(s) seeking to be excused; USDC ADR Local Rules – Effective May 1, 2018 ADR-13 (4) (5) (6) Identify by name and title or status all those persons who will attend; Identify by name and title or status the person(s) with decision-making authority, and Indicate whether the other party or parties and the Evaluator join in or object to the request.

The request may not be filed or disclosed to the assigned Judge. (e) Opposing a Request to be Excused or Seeking to Compel Attendance by an Appropriate Party Representative. (1) A party who opposes another party’s request to be excused from attending in person an ENE session may submit to the ADR Magistrate Judge in care of the ADR Unit at the address listed in ADR L.R. 2-1(c), or emailed to [email protected], within 4 days of receiving a copy of the request, a letter setting forth all grounds for the opposition. Such a letter must be served simultaneously on all parties and the Evaluator– and may not be filed or disclosed to the assigned Judge.

(2) A party who alleges that another party will not be represented at an ENE session by an appropriate representative may submit to the ADR Magistrate Judge in care of the ADR Unit at the address listed in ADR L.R. 2-1(c), or emailed to [email protected], as far in advance of the session as practicable, a letter setting forth the bases for this allegation, along with a proposed order. Within 4 days of receiving a copy of such a letter, the party so challenged may submit to the ADR Magistrate Judge a responsive letter. Such letters must be sent to the ADR Magistrate Judge in care of the ADR Unit at the address listed in ADR L.R. 2-1(c), or emailed to [email protected] served simultaneously on all other parties and the Evaluator – and may not be filed or disclosed to the assigned Judge. (f) Participation by Telephone.

Unless otherwise ordered, a person excused from appearing in person at an ENE session must participate by telephone for the duration of the session or until excused by the neutral. Commentary Ordinarily, a corporation or other entity, including a governmental entity or an insurer, satisfies the attendance requirement by sending a person or persons who can agree to a settlement without the necessity of gaining approval from anyone else. Exceptions to this general practice must be disclosed and addressed in advance of the session. 5-11.

Procedure at ENE Session (a) Components of ENE Session. The Evaluator shall: (1) Permit each party (through counsel or otherwise), orally and through documents or other media, to present its claims or defenses and to describe the principal evidence on which they are based; (2) Help the parties identify areas of agreement and, where feasible, enter stipulations; (3) Assess the relative strengths and weaknesses of the parties’ contentions and evidence, and explain carefully the reasoning that supports these assessments; (4) Estimate, where feasible, the likelihood of liability and the dollar range of damages; USDC ADR Local Rules – Effective May 1, 2018 ADR-14 (5) Help the parties devise a plan for sharing the important information and/or conducting the key discovery that will equip them as expeditiously as possible to enter meaningful settlement discussions or to position the case for disposition by other means; (6) Help the parties assess litigation costs realistically; (7) If the parties are interested, help them, through private caucusing or otherwise, explore the possibility of settling the case; and (8) Determine whether some form of follow up to the session would contribute to the case development process or to settlement. (b) Process Rules. The session shall be informal.

Rules of evidence shall not apply. There shall be no formal examination or cross-examination of witnesses and no recording of the presentations or discussion shall be made. (c) Evaluation and Settlement Discussions. If all parties agree, they may proceed to discuss settlement after the evaluation has been written but before it is presented.

The evaluation must be presented orally on demand by any party. Copies of the written evaluation may be provided to the parties at the discretion of the Evaluator. The parties also may agree to discuss settlement after the evaluation has been presented. 5-12.

Confidentiality (a) Confidential Treatment. Except as provided in subdivision (b) of this local rule, this Court, the Evaluator, all counsel and parties, and any other persons attending the ENE session shall treat as “confidential information” the contents of the written ENE Statements, anything that was said, any position taken, and any view of the merits of the case expressed by any participant in connection with any ENE session. “Confidential information” shall not be: (1) Disclosed to anyone not involved in the litigation; (2) Disclosed to the assigned Judge; or (3) Used for any purpose, including impeachment, in any pending or future proceeding in this Court. (b) Limited Exceptions to Confidentiality.

This rule does not prohibit: (1) Disclosures as may be stipulated by all parties and the Evaluator; (2) Disclosure of the terms of a fully executed settlement agreement signed during or arising out of the ENE session; (3) Disclosures made in a subsequent confidential ADR or settlement proceeding under these Rules; (4) A report to or an inquiry by the ADR Magistrate Judge pursuant to ADR L.R. 2-4 regarding a possible violation of the ADR Local Rules; (5) The Evaluator from discussing the ENE session with the Court’s ADR staff, who must maintain the confidentiality of the ENE session; (6) Any participant or the Evaluator from responding to an appropriate request for information duly made by persons authorized by the Court to monitor or evaluate the Court’s ADR program in accordance with ADR L.R. 2-6; or (7) Disclosures as are otherwise required by law.

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Local Rules – Effective May 1, 2018 ADR-15 (c) Confidentiality Agreement. The Evaluator may ask the parties and all persons attending the ENE session to sign a confidentiality agreement on a form provided by the Court. Commentary Ordinarily, anything that was said in connection with an ENE session is to be treated as confidential in the same manner and for the same reasons as with Mediation. Please see the legal authorities cited in the commentary to ADR Local Rule 6-12(c).

5-13. Follow Up (a) Discussion at Close of ENE. At the close of the ENE session, the Evaluator and the parties shall discuss whether it would be beneficial to schedule any follow up to the session. (b) Follow Up the Evaluator May Order.

The Evaluator may order these kinds of follow up without stipulation: (1) Responses to settlement offers or demands; (2) A focused phone conference; (3) Exchanges of letters between counsel addressing specified legal or factual issues; or (4) Written or telephonic reports to the Evaluator, e.g., describing how discovery or other events occurring after the ENE session have affected a party’s analysis of the case or position with respect to settlement. (c) Stipulation to Follow Up Session. With the consent of all parties, the Evaluator may schedule one or more follow up ENE sessions that may include additional evaluation, settlement discussions, or case development planning. (d) Limitations on Authority of Evaluator.

Evaluators have no authority to compel parties to conduct or respond to discovery or to file motions. Nor do Evaluators have authority to determine what the issues in any case are, to impose limits on parties’ pretrial activities, or to impose sanctions. 5-14. Certification of Session Within 14 days of the close of each ENE session, and on the form Certification of Session provided by the Court, the Evaluator must report to the ADR Unit: the date of the session, whether any follow up is scheduled, and whether the case settled in whole or in part.

The ADR Unit will enter this information on the docket.

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Local Rules – Effective May 1, 2018 ADR-16