(a)    Setting the Trial Date: The Judge to whom the case is assigned shall notify counsel in cases set on the Judge's calendar at least 21 days in advance of the date the first case on the civil calendar is to be called. Cases on such calendar may be called on a peremptory basis. The case may be heard by any judge. For information on calendar matters, counsel shall contact the calendar clerk of the Judge who is to try the case.

 

(b)    Documents to be Submitted for Trial: Unless otherwise ordered, counsel shall file and serve the following documents at least 10 days before the first case on the civil calendar is to be called for trial:

 

(1)   Documents Required for All Trials

(A)  Trial Brief

(B)  Exhibit List. A list of exhibits shall be prepared on a form to be obtained from the Clerk of Court. All exhibits shall be marked for identification with Arabic numbers and shall include the case number.

Example: Pltf. or Deft. #1

Civ. 3-84-2

(Multiple parties list name, e.g. Pltf. Smith #l)
 

These exhibits shall be made available for examination and copying at least 14 days prior to the date the first case on the civil calendar may be called for trial.

 

(C) Witness List. The list shall include a short statement of the substance of the expected testimony of each witness.

 

(D) List of Deposition Testimony. The list shall designate those specific parts of deposition to be offered at trial. Any party who wishes to object to deposition testimony shall submit a list of objections at least 5 days before the first case on the civil calendar is to be called for trial.

 

(E)  Motions in Limine.

 

 

(2)   Additional Documents for Jury Trials. In all jury trials, counsel shall file and serve the following documents in addition to the documents listed in LR 39.1(b)(1):

 

(A)  Proposed Voir Dire Questions

(B)  Proposed Jury Instructions

 

(i)                 In general.  Each proposed instruction shall be numbered and on a separate page and shall contain citation to legal authority.

 

(ii)               Patent cases.  In trials that involve one or more claims relating to patents, in which the parties have agreed to a particular set of model jury instructions as set out in LR 16.6(c), the parties shall additionally file and serve those of their instructions that pertain to the claims relating to patents in the form of specific additions to and/or deletions from those model jury instructions.

  

(C) Proposed Special Verdict Forms

 

(D) Additional Documents for Non-Jury Trials. In all non-jury trials, counsel shall file and serve proposed findings of fact and conclusions of law in addition to the documents listed in LR 39.1(b)(1).

 

  (c) Failure to Comply: See LR 1.3 for sanctions for failure to comply with this rule.

 

[Adopted effective February 1, 1991; amended November 1, 1996; amended May 17, 2004, amended February 9, 2006]

 

 

2005 Advisory Committee's Note to LR 39.1(b)(2)(B)(ii)

 

In general.  Paragraph (b)(2)(B)(ii) set outs a suggested practice in which the jury instructions of both parties relating to the scope, validity, enforcement, or unenforceability of patents is based on a single, common set of standard jury instructions.  The handling of jury instructions has proven to require significant resources from both the parties and the Court.  The instructions can be lengthy and detailed.  In addition, the traditional process, by which the parties construct their proposed instructions in isolation from each other, presents inherent inefficiencies.  It tends to cause the parties to suggest differing instructions even where they do not disagree over substance.  In addition, it makes it difficult to identify the substantive points that the parties actually dispute.  The problems are especially acute in cases relating to patents.

 

The suggestion in paragraph (b)(2)(B)(ii) addresses these problems by encouraging the parties to present their proposed suggestions as additions to or deletions from a common set of standard instructions.  Under this practice, the instructions proposed by the parties will agree unless at least one party takes the affirmative step of proposing a modification of the standard language.  Presumably this will occur only where the party considers the matter to be worth addressing.  As a result, aspects of the instructions over which the parties do not disagree, and which the parties consider routine, will be proposed in unmodified form in such a manner as to make the lack of dispute clear.  Accordingly, the areas of true disagreement will be plainly visible.  In this way, the paragraph should reduce the time and cost, for both the parties and the Court, of attending to jury instructions.

 

Various other districts have promulgated local rules that require or encourage the parties' proposed instructions to be related to a common set of standard instructions.  The suggestion in paragraph (b)(2)(B)(ii) is similar to the more lenient of these rules.

 

Two-stage procedure; default standard instructions.  Paragraph (b)(2)(B)(ii) operates in connection with paragraph (c) of Local Rule 16.6.  Under the two paragraphs, the parties are to consult regarding the selection of a particular set of pattern jury instructions as part of the final pretrial conference.  The Rule contemplates that the parties will, in most cases, be able to agree on a particular set of pattern jury instructions.  In the event that they are unable to agree, however, the parties should expect that the Court may, on its own initiative, impose a set of common instructions on them.

 

Scope of requirement; included cases vs. included instructions.  The suggestion in paragraph (b)(2)(B)(ii), and the related requirement to confer under paragraph (c) of Local Rule 16.6, are intended to apply to cases relatively broadly. Cases that are included under the Rule are any that involve a claim or defense relating to patents.  This includes, but is not limited to, cases that include claims for patent infringement and/or declarations for patent non-infringement or invalidity.  It also includes cases in which the claims may not "arise under" the law of patents strictly, but in which the claim or defense draws upon or involves a patent more tangentially.  Examples of this latter type of case include, for example, claims for breach of contract, where the contract terms at issue refer to patents or patentable subject matter, or claims for violation of antitrust law where the accused conduct involves the use of a patent or patent rights.

 

At the same time, the suggestion in paragraph (b)(2)(B)(ii) actually to submit instructions in terms of additions and/or deletions from a standard text is narrower.  It applies only to those instructions, in an included case, that relate to the scope, validity, enforcement, or unenforceability of a patent.  This is less than all the issues that may exist in an included case, and it is contemplated that, under the usual circumstances, only some of the instructions in an included case will be of the type that the Rule suggests be presented as additions and/or deletions.  Instructions not included in the suggestion can be presented in any acceptable manner.

 
Freedom to propose particular instructions; consistency with Fed. R. Civ. P. 51.  Under the practice suggested in paragraph (b)(2)(B)(ii), all parties retain the freedom to propose whatever instructions they choose.  The practice does not restrict the substance of what the parties must propose; rather, it addresses only the form.  The paragraph contemplates that parties who disagree with a particular standard instruction have the freedom to alter it if necessary to lay out the text of the instruction that they wish to propose.  In this way, paragraph (b)(2)(B)(ii) is fully consistent with the parties' general freedom to present jury instructions, as set out for example in Fed. R. Civ. P. 51.