1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Jaskamal KAHLON, Case No.: 21-cv-02055-W-BGS

12 Plaintiff, ORDER: 13 v. (1) VACATING SETTLEMENT DISPOSITION CONFERENCE; 14 VOLKSWAGEN GROUP OF

AMERICA, INC., et al., 15 (2)SETTING STATUS Defendants. CONFERENCE; AND 16

17 (3) RESETTING EARLY NEUTRAL EVALUATION CONFERENCE AND 18 CASE MANAGEMENT 19 CONFERENCE

20

21 On April 22, 2022, the parties filed a Joint Notice of Settlement, indicating that they 22 have “reached a conditional settlement” and were in the “process of preparing a written 23 settlement agreement.” (ECF No. 9 at 1.) Based on this representation that the case has 24 settled, the Court vacated the Early Neutral Evaluation Conference and Case Management 25 Conference, and related dates, and issued a Settlement Disposition Conference Order. 26 (ECF No. 10.) In this Settlement Disposition Conference Order, the parties were given 27 until May 23, 2022 to file a Joint Motion to Dismiss. (Id. at 2.) The Court then indicated 28 1 that “[i]f a Joint Motion to Dismiss and proposed order to dismiss are not submitted on or 2 before May 23, 2022, then a Settlement Disposition Conference will be held on May 27, 3 2022, at 10:00 AM before Judge Skomal.” (Id.) 4 On May 24, 2022, the parties filed a Stipulation and Joint Motion to Continue the 5 Settlement Disposition Conference. (ECF No. 15.) The parties jointly requested to 6 continue the Settlement Disposition Conference since “Plaintiff only recently picked up 7 the Subject Vehicle from the authorized repair facility and needs to some time to drive the 8 Subject Vehicle to verify that the repairs were successful.” (Id. at 2.) The parties indicated 9 that “[s]ettlement discussions have commenced[ and that] [t]he parties agree that they may 10 be able to resolve this matter informally” since “Plaintiff’s Counsel has already made a 11 settlement demand to Defendants’ counsel and provided courtesy copies of the sales and 12 service records for the subject vehicle without need for formal written discovery.” (Id.) 13 The parties’ representation in their Joint Notice of Settlement (ECF No. 9) that the 14 case has settled is contrary to their Stipulation and Joint Motion to Continue the Settlement 15 Disposition Conference (ECF No. 15) wherein they indicated that settlement discussions 16 have only commenced. 17 Accordingly, the Settlement Disposition Conference set for May 27, 2022 at 10:00 18 AM before Magistrate Judge Bernard G. Skomal is VACATED. 19 Further, IT IS HEREBY ORDERED that a Telephonic Status Conference will be 20 held to discuss the status of settlement on Thursday, June 30, 2022 at 10:00 AM before 21 United States Magistrate Judge Bernard G. Skomal. Counsel for the parties are responsible 22 for coordinating and initiating a JOINT call into chambers via (619) 557-2993 once all 23 call participants are on the line. 24 Further, the Court RESETS the ENE/CMC for August 24, 2022 at 2:00 PM before 25 Magistrate Judge Bernard G. Skomal. The conference will be held by video conference. 26 Instructions regarding the videoconference are included below. To facilitate this 27 modification, the Court hereby ORDERS as follows: 28 1 The following are mandatory guidelines for the parties preparing for the Early 2 Neutral Evaluation Conference. 3 1. Purpose of Conference: The purpose of the Early Neutral Evaluation 4 Conference (“ENE”) is to hold a serious discussion of every aspect of the lawsuit in an 5 effort to achieve an early resolution of the case. All conference discussions will be off the 6 record, privileged and confidential. Counsel for any non-English speaking parties is 7 responsible for arranging for the appearance of an interpreter at the conference. 8 2. Personal Appearance of Parties Is Required: All parties, adjusters for 9 insured defendants, and client representatives must be present and have full and complete 10 authority to enter into a binding settlement at the ENE.1 The purpose of this requirement 11 is to have representatives present who can settle the case during the course of the 12 conference without consulting a superior. Counsel for a government entity may be excused 13 from this requirement so long as the government attorney who attends the ENE conference 14 (1) has primary responsibility for handling the case; and (2) may negotiate settlement offers 15 which the attorney is willing to recommend to the government official having ultimate 16 settlement authority. Other parties seeking permission to be excused from attending the 17 ENE must follow the procedures outlined in Judge Skomal’s Chambers’ Rules. (See Judge 18 Skomal’s Chambers’ Rules II.C.) Failure of any of the above parties to appear at the ENE 19 conference without the Court’s permission will be grounds for sanctions. The principal 20 attorneys responsible for the litigation must also be present and prepared to discuss all of 21 the legal and factual issues in the case. 22

23 1 “Full authority to settle” means that the individuals at the settlement conference must be authorized to 24 fully explore settlement options and to agree at that time to any settlement terms acceptable to the parties. 25 Heileman Brewing Co., Inc. v. Joseph Oat Corp.,

(7th Cir. 1989). The person needs to have “unfettered discretion and authority” to change the settlement position of a party. Pitman v. Brinker Intl., 26 Inc.,

(D. Ariz. 2003). The person must be able to bind the party without the need to call others not present at the conference for authority or approval. The purpose of requiring a 27 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.

. A limited or a sum certain of authority 28 1 3. Confidential ENE Statements Required: No later than August 10, 2022, 2 the parties must submit confidential statements of seven pages or less directly to Judge 3 Skomal. Please also attach relevant exhibits. The statement must address the legal and 4 factual issues in the case and should focus on issues most pertinent to settling the matter. 5 Statements do not need to be filed or served on opposing counsel. The statement must also 6 include any prior settlement offer or demand, as well as the offer or demand the party will 7 make at the ENE. The Court will keep this information confidential unless the party 8 authorizes the Court to share the information with opposing counsel. ENE statements 9 must be emailed to [email protected]. 10 4. New Parties Must Be Notified by Plaintiff’s Counsel: Plaintiff’s counsel 11 shall give notice of the ENE to parties responding to the complaint after the date of this 12 notice. 13 5. Case Management Conference: Any objections made to initial disclosures 14 pursuant to Federal Rule of Civil Procedure, Rule 26(a)(1)(A)-(D) are overruled, and the 15 parties are ordered to proceed with the initial disclosure process. Any further objections 16 to initial disclosures will be resolved as required by Rule 26 and Judge Skomal's 17 Chambers' Rules regarding discovery disputes. Accordingly: 18 a. If the parties have yet to complete a Rule 26(f) conference, this shall be 19 completed on or before July 27, 2022; 20 b. If the parties have yet to provide initial disclosures pursuant to Rule 21 26(a)(1)(A–D), this shall occur before August 3, 2022; 22 c. A Joint Discovery Plan shall be filed on the CM/ECF system as well as 23 lodged with Magistrate Judge Skomal by delivering the plan directly to chambers or by 24 emailing it to [email protected], on or before August 10, 2022. The plan 25 must be one document and must explicitly cover the parties' views and proposals for each 26 item identified in Fed. R. Civ. P. 26(f)(3). Agreements made in the Discovery Plan will be 27 treated as binding stipulations that are effectively incorporated into the Court's Case 28 Management Order. 1 In cases involving significant document production or any electronic discovery, the 2 parties must also include the process and procedure for "claw back" or "quick peek" 3 agreements as contemplated by Fed. R. Evid. 502(d). The parties should also address 4 whether an order providing for protection under Rule 502(e) is needed. 5 Finally, the parties must thoughtfully meet and confer about electronic discovery 6 and include answers to the following questions in the Discovery Plan: 7 i. Are there any preservation issues? If so, what are they and how are the 8 parties addressing the issues; 9 ii. What form of production have the parties agreed to? Are there any 10 disputes with respect to the parties’ preferred form of production? 11 What is the parties’ positions respecting Metadata; 12 iii. Are there any proportionality issues? Specifically address Rule 13 26(b)(2)(B) relating to inaccessible electronically stored information 14 (“ESI”); 15 iv. What have the parties decided regarding the methodologies for 16 identifying ESI for production? For instance, will the parties conduct 17 key word searching, use predictive coding, or other advanced culling 18 techniques. 19 In the event the case does not settle at the ENE, a Case Management Conference, 20 pursuant to Federal Rule of Civil Procedure 16(b) will be held at the conclusion of the 21 settlement conference. 22 6. Requests to Continue an ENE Conference: Requests to continue ENEs are 23 rarely granted. The Court will, however, consider formal motions to continue an ENE 24 when extraordinary circumstances exist and the other party has no objection. If another 25 party objects to the continuance, counsel for both parties must call chambers and discuss 26 the matter with the research attorney/law clerk assigned to the case before any motion may 27 be filed. Any request for a continuance must be made as soon as counsel is aware of 28 the circumstances that warrant rescheduling the conference. Requests to continue 1 the ENE based on preexisting scheduling conflicts must be raised within 10 days of 2 the Court’s issuance of this Order. 3 7. Settlement Prior to ENE Conference: The Court encourages the parties to 4 work on settling the matter in advance of the ENE Conference. In the event that the parties 5 resolve the matter prior to the day of the conference, the following procedures must be 6 followed before the Court will vacate the ENE and excuse the parties from appearing: 7 A. The parties may file a Joint Motion to Dismiss and submit a proposed 8 order to the assigned district judge. If a Joint Motion to Dismiss is filed, the Court will 9 immediately vacate the ENE; 10 B. If the parties settle more than 24 hours before the conference but are 11 not able to file a Joint Motion to Dismiss, they must file a Joint Notice of Settlement 12 containing the electronic signatures of counsel for all settling parties and must also identify 13 a date by which the Joint Motion to Dismiss will be filed; 14 C. If the parties settle less than 24 hours before the conference, counsel for 15 the settling parties must JOINTLY call chambers and inform the Court of the settlement 16 and receive Court permission to not appear at the ENE. 17 Zoom Video Conference Instructions: 18 8. The Court will use its official Zoom video conferencing account to hold the 19 ENE. IF YOU ARE UNFAMILIAR WITH ZOOM: Zoom is available on computers 20 through a download on the Zoom website (https://zoom.us/meetings) or on mobile devices 21 through the installation of a free app.2 Joining a Zoom conference does not require creating 22 a Zoom account, but it does require downloading the .exe file (if using a computer) or the 23 app (if using a mobile device). Participants are encouraged to create an account, install 24 25 26 27 2 If possible, participants are encouraged to use laptops or desktop computers for the video conference, rather than mobile devices. 28 1 Zoom and familiarize themselves with Zoom in advance of the ENE. There is a cost-free 2 option for creating a Zoom account. 3 9. Prior to the start of the ENE, the Court will email counsel for each party an 4 invitation to join a Zoom video conference that they must provide to participating client(s). 5 The Court will send the invitation to the email addresses listed for counsel in the case 6 docket. If counsel does not receive an invitation to join the Zoom video conference by 7 August 23, 2022, please email chambers at [email protected]. Again, if 8 possible, participants are encouraged to use laptops or desktop computers for the video 9 conference, as mobile devices often offer inferior performance. Participants shall join the 10 video conference by following the ZoomGov Meeting hyperlink in the invitation. 11 Participants who do not have Zoom already installed on their device when they click on 12 the ZoomGov Meeting hyperlink will be prompted to download and install Zoom before 13 proceeding. Zoom may then prompt participants to enter the password included in the 14 invitation.4 All participants will be placed in a waiting room until the ENE begins. 15 10. Each participant should plan to join the Zoom video conference at least five 16 minutes before the start of the ENE to ensure that the ENE begins promptly at 2:00 PM. 17 The Zoom e-mail invitation may indicate an earlier start time, but the ENE will begin at 18 the Court-scheduled time. 19 11. Zoom’s functionalities will allow the Court to conduct the ENE as it ordinarily 20 would conduct an in-person ENE. The Court may divide participants into separate, 21 confidential sessions, which Zoom calls Breakout Rooms.5 In a Breakout Room, the Court 22 will be able to communicate with participants from a single party in confidence. Breakout 23

24 25 3 For help getting started with Zoom, visit: https://support.zoom.us/hc/en-us/categories/200101697- Getting-Started. 26 4 A Meeting ID will also be included and may be used along with the password to access the conference 27 if necessary. 5 For more information on what to expect when participating in a Zoom Breakout Room, visit: 28 1 ||Rooms will also allow parties and counsel to communicate confidentially without the 2 || Court. 3 12. All participants shall display the same level of professionalism during the 4 || ENE and be prepared to devote their full attention to the ENE as if they were attending in 5 || person, i.e., cannot be driving while speaking to the Court. Because Zoom may quickly 6 || deplete the battery of a participant’s device, each participant should ensure that their device 7 plugged in or that a charging cable is readily available during the video conference. 8 Questions regarding this case or the mandatory guidelines set forth herein may be 9 || directed to Judge Skomal’s research attorney at (619) 557-2993. Please consult Judge 10 ||Skomal’s rules, available on the Court’s website, before contacting chambers with your 11 || questions. 12 IT IS SO ORDERED. 13 Dated: May 25, 2022 p / / on. Bernard G. Skomal 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28