UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
E.DIGITAL CORPORATION, Civil
No.
15cv333 BEN (BGS)
Plaintiff,
NOTICE AND ORDER FOR
EARLY NEUTRAL
EVALUATION CONFERENCE IN
PATENT CASES
v.
HEWLETT-PACKARD COMPANY,
Defendant.
IT IS HEREBY ORDERED that an Early Neutral Evaluation of your case
will be held on July 29, 2015 at 1:30 p.m. before United States Magistrate Judge
Bernard G. Skomal, United States District Court, 333 W. Broadway, Suite 1280,
San Diego, California.
The following are mandatory guidelines for the parties preparing for
the Early Neutral Evaluation Conference.
1. Purpose of Conference: The purpose of the Early Neutral
Evaluation Conference (“ENE”) is to hold a serious discussion of every aspect of
the lawsuit in an effort to achieve an early resolution of the case. All conference
discussions will be off the record, privileged and confidential. Counsel for any non-
English speaking parties is responsible for arranging for the appearance of an
interpreter at the conference.

2. Personal Appearance of Parties Is Required: All parties,
adjusters for insured defendants, and other representatives of a party having full and
complete authority to enter into a binding settlement, and the principal attorneys
responsible for the litigation, must be present in person and legally and factually
prepared to discuss settlement of the case.1
3. Full Settlement Authority Required: In addition to counsel who
will try the case, a party or party representative with full settlement authority must
be present for the conference. In the case of a corporate entity, an authorized
representative of the corporation who is not retained outside counsel must be present
and must have discretionary authority to commit the company to pay an amount up
to the amount of the plaintiff’s prayer (excluding punitive damage prayers). The
purpose of this requirement is to have representatives present who can settle the case
during the course of the conference without consulting a superior. Counsel for a
government entity may be excused from this requirement so long as the government
attorney who attends the ENE conference (1) has primary responsibility for handling
the case; and (2) may negotiate settlement offers which the attorney is willing to
recommend to the government official having ultimate settlement authority.
Unless there are extraordinary circumstances, persons required to attend
the conference pursuant to this Order shall not be excused from personal attendance.
In and of itself, having to travel a long distance to appear in person is not
“extraordinary.” Requests for excuse from attendance for extraordinary
circumstances shall be made in writing no later than July 8, 2015. No later than
1 “Full authority to settle” means that the individuals at the settlement conference must be authorized to
fully explore settlement options and to agree at that time to any settlement terms acceptable to the parties
and to bind the party, without the need to call others not present for authority or approval. Heileman
Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648 (7th Cir. 1989). The person needs to have “unfettered
discretion and authority” to change the settlement position of a party. Pitman v. Brinker Intl., Inc., 216
F.R.D. 481, 485-486 (D. Ariz. 2003). The purpose of requiring a person with unlimited settlement
authority to attend the conference includes that the person’s view of the case may be altered during the face
to face conference. Id. at 486. A limited or a sum certain of authority is not adequate. Nick v. Morgan’s
Foods, Inc., 270 F.3d 590 (8th Cir. 2001).

fourteen (14) days prior to the settlement conference each party will designate in
writing to all other parties, the person(s) and their title(s) or position(s) with the
party who will attend and have settlement authority at the conference.
Failure to appear at the ENE conference will be grounds for sanctions.
4. Confidential ENE Statements Required: No later than July 15,
2015 prior to the ENE, the parties must submit confidential statements of seven
pages or less directly to Judge Skomal. The statements must set forth the pertinent
legal and factual issues in the case, but should focus on issues most pertinent to
settling the matter. These statements shall not be filed or served on opposing
counsel. Parties may make presentations to assist the court in understanding the
invention(s) at issue in the litigation and should contact chambers no later than July
15, 2015, to make arrangements if they need to bring display equipment. ENE
statements must be emailed to efile_Skomal@casd.uscourts.gov.
5. New Parties Must Be Notified by Plaintiff’s Counsel: Plaintiff’s
counsel shall give notice of the ENE to parties responding to the complaint after the
date of this notice.
6. Case Management Under the Amended Federal Rules and Local
Patent Rules: In the event the case does not settle at the ENE, the parties shall
prepare a proposed joint discovery plan/scheduling order including a proposed
Claim Construction briefing schedule and hearing date. On or before July 1, 2015,
parties shall therefore meet and confer pursuant to Fed. R. Civ. P. 26(f)
regarding:
a. Any anticipated objections under Federal Rule of Civil Procedure
26(a)(1)(E) to the initial disclosure provisions of Federal Rule of
Civil Procedure 26(a)(1)(A-D) and the date of initial disclosures;
b. Whether the parties will request the preservation and production of
Electronically Stored Information ("ESI") and, if so:
i. the nature, location, and scope of discoverable ESI;
ii. the agreed form of production;
iii. the agreed search methodology;

iv. whether any proportionality issues exist and whether the parties
have identified issues with respect to inaccessible ESI;
c. Any proposed modification of the deadlines provided for in the
Patent Local Rules, and the effect of any such modification on the
date and time of the Claim Construction Hearing, if any;
d. The need for and specific limitations on discovery relating to claim
construction, including depositions of percipient and expert
witnesses; and
Any proposed modifications to the limitations on discovery imposed
under the Federal Rules of Civil Procedure or by local rule;
e. The need, if any, to phase damage discovery.
On or before July 15, 2015, the parties must include their positions with
respect to the above issues in a Joint Discovery Plan submitted to Judge Skomal’s
chambers. The Joint Discovery Plan shall also propose actual dates for ALL of the
following:
- deadline for disclosure of asserted claims and preliminary infringement
contentions;
- deadline for preliminary invalidity contentions;
- deadline for exchange of proposed claim constructions and extrinsic
evidence;
- deadline for joint claim construction chart, worksheet and hearing
statement;
- deadline for completion of claim construction discovery;
- proposed briefing schedule for filing of claim construction briefs
- proposed date and time of the Claim Construction Hearing, if any;
- any proposed modification of the deadlines provided for in the Patent
Local Rules, and the effect of any such modification on the date and time
of the Claim Construction Hearing, if any;
- whether the court will hear live testimony at the Claim Construction
Hearing;
- the need for and specific limitations on discovery relating to claim

construction, including depositions of percipient and expert witnesses;
- deadlines for expert witness designation ad supplementation;
- deadlines for expert witness report submissions and supplementation
- deadlines for completions of fact and expert discovery;
- deadline for filing pretrial motions; and
- proposed final Pretrial Conference date.
The Court will issue an order following the ENE addressing these issues
and setting dates as appropriate.
7. Requests to Continue an ENE Conference: Absent
extraordinary circumstances, requests for continuances will not be considered
unless submitted in writing no later than July 8, 2015.
8. Settlement Prior to ENE Conference: The Court encourages the
parties to work on settling the matter in advance of the ENE Conference. In the
event that the parties resolve the matter prior to the day of the conference, the
following procedures must be followed before the Court will vacate the ENE and
excuse the parties from appearing:
A. The parties may file a Joint Motion to Dismiss and submit a
proposed order to the assigned district judge. If a Joint Motion to Dismiss is filed,
the Court will immediately vacate the ENE;
B. If the parties settle more than 24 hours before the conference but
are not able to file a Joint Motion to Dismiss, they must file a Notice of Settlement
containing the electronic signatures of counsel for all settling parties and must also
identify a date by which the Joint Motion to Dismiss will be filed;
C. If the parties settle less than 24 hours before the conference,
counsel for the settling parties must JOINTLY call chambers and inform the Court
of the settlement and receive Court permission to not appear at the ENE.
Questions regarding this case or the mandatory guidelines set forth herein
may be directed to Skomal's research attorney at (619) 557-2993.

A Notice of Right to Consent to Trial Before a United States Magistrate
Judge is attached for your information.
IT IS SO ORDERED.
DATED: May 22, 2015
Hon. Bernard G. Skomal
U.S. Magistrate Judge
United States District Court