1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 F & B ASSOCIATES, INC., Case No.: 23-cv-00222-CAB-BGS

12 Plaintiff, NOTICE AND ORDER: 13 v. (1) FOR EARLY NEUTRAL EVALUATION CONFERENCE, 14 SHANE MCKNIGHT, ET AL.,

15 Defendant. (2) SETTING RULE 26 COMPLIANCE AND CASE 16 MANAGEMENT CONFERENCE 17 18 IT IS HEREBY ORDERED that an Early Neutral Evaluation of your case will be 19 held on July 21, 2023, at 2:00 p.m. before United States Magistrate Judge Bernard G. 20 Skomal via video conference.1 Instructions regarding the videoconference are included 21 below. 22 The following are mandatory guidelines for the parties preparing for the 23 Early Neutral Evaluation Conference. 24 1. Purpose of Conference: The purpose of the Early Neutral Evaluation 25 Conference (“ENE”) is to hold a serious discussion of every aspect of the lawsuit in an 26

27 1 The parties may request the ENE/CMC be held in-person. The Court, in its discretion, may convert the 28 1 effort to achieve an early resolution of the case. All conference discussions will be off the 2 record, privileged and confidential. Counsel for any non-English speaking parties is 3 responsible for arranging for the appearance of an interpreter at the conference. 4 2. All parties, adjusters for insured defendants, and client representatives 5 must participate in the conference and have full and complete authority to enter 6 into a binding settlement at the ENE.2 The purpose of this requirement is to have 7 representatives present who can settle the case during the course of the conference 8 without consulting a superior. Counsel for a government entity may be excused from this 9 requirement so long as the government attorney who participates in the ENE conference 10 (1) has primary responsibility for handling the case; and (2) may negotiate settlement 11 offers which the attorney is willing to recommend to the government official having 12 ultimate settlement authority. Other parties seeking permission to be excused from 13 participating in the ENE must follow the procedures outlined in Judge Skomal’s 14 Chambers’ Rules. (See Judge Skomal’s Chambers’ Rules II.C.) Failure of any of the 15 above parties to participate in the ENE conference without the Court’s permission will be 16 grounds for sanctions. The principal attorneys responsible for the litigation must also 17 participate and be prepared to discuss all of the legal and factual issues in the case. 18 3. Confidential ENE Statements Required: No later than July 7, 2023, the 19 parties must submit confidential statements of seven pages or less to Judge Skomal. 20 Please also attach relevant exhibits.3 The statement must address the legal and factual 21 22 23 2 “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 24 parties. Heileman Brewing Co., Inc. v. Joseph Oat Corp.,

(7th Cir. 1989). The person 25 needs to have “unfettered discretion and authority” to change the settlement position of a party. Pitman v. Brinker Intl., Inc.,

(D. Ariz. 2003). The person must be able to bind the 26 party without the need to call others not present at the conference for authority or approval. The purpose of requiring a person with unlimited settlement authority to attend the conference includes that the 27 person’s view of the case may be altered during the face to face conference.

. A limited or a sum certain of authority is not adequate. Nick v. Morgan’s Foods, Inc.,

(8th Cir. 2001). 28 1 issues in the case and should focus on issues most pertinent to settling the matter. 2 Statements do not need to be filed or served on opposing counsel. The statement must 3 also include any prior settlement offer or demand, as well as the offer or demand the 4 party will make at the ENE. The Court will keep this information confidential unless the 5 party authorizes the Court to share the information with opposing counsel. ENE 6 statements must be emailed to [email protected]. 7 4. New Parties Must Be Notified by Plaintiff’s Counsel: Plaintiff’s counsel 8 shall give notice of the ENE to parties responding to the complaint after the date of this 9 notice. 10 5. Case Management Conference: Any objections made to initial disclosures 11 pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)-(D) are overruled, and the 12 parties are ordered to proceed with the initial disclosure process. Any further objections 13 to initial disclosure will be resolved as required by Rule 26 and Judge Skomal's 14 Chambers’ Rules regarding discovery disputes. Accordingly: 15 a. The Rule 26(f) conference shall be completed on or before June 23, 16 2023; 17 b. The date of initial disclosure pursuant to Rule 26(a)(1)(A-D) shall 18 occur before June 30, 2023; 19 c. A Joint Discovery Plan shall be filed on the CM/ECF system as well 20 as emailed to [email protected] on or before July 7, 2023. The plan must 21 be one document and must explicitly cover the parties’ views and proposals for each item 22 identified in Fed. R. Civ. P. 26(f)(3). Agreements made in the Discovery Plan will be 23 treated as binding stipulations that are effectively incorporated into the Court’s Case 24 Management Order. 25 In cases involving significant document production or any electronic discovery, the 26 parties must also include the process and procedure for "claw back" or "quick peek" 27 agreements as contemplated by Fed. R. Evid. 502(d). The parties should also address 28 whether an order providing for protection under Rule 502(e) is needed. 1 Finally, the parties must thoughtfully meet and confer about electronic discovery 2 and include answers to the following questions in the Discovery Plan: 3 i. Are there any preservation issues? If so, what are they and how are the 4 parties addressing the issues; 5 ii. What form of production have the parties agreed to? Are there any 6 disputes with respect to the parties’ preferred form of production? 7 What is the parties’ positions respecting Metadata; 8 iii. Are there any proportionality issues? Specifically address Rule 9 26(b)(2)(B) relating to inaccessible electronically stored information 10 (“ESI”); 11 iv. What have the parties decided regarding the methodologies for 12 identifying ESI for production? For instance, will the parties conduct 13 key word searching, use predictive coding, or other advanced culling 14 techniques. 15 In the event the case does not settle at the ENE, a Case Management Conference, 16 pursuant to Federal Rule of Civil Procedure 16(b) will be held at the conclusion of the 17 settlement conference. 18 6. Requests to Continue an ENE Conference: Requests to continue ENEs 19 are rarely granted. The Court will, however, consider formal motions to continue an ENE 20 when extraordinary circumstances exist and the other party has no objection. If another 21 party objects to the continuance, counsel for both parties must call chambers and discuss 22 the matter with the research attorney/law clerk assigned to the case before any motion 23 may be filed. Any request for a continuance must be made as soon as counsel is 24 aware of the circumstances that warrant rescheduling the conference. Requests to 25 reschedule the ENE based on preexisting scheduling conflicts must be raised within 26 10 days of the Court’s issuance of this Order. 27 7. Settlement Prior to ENE Conference: The Court encourages the parties to 28 work on settling the matter in advance of the ENE Conference. In the event that the 1 parties resolve the matter prior to the day of the conference, the following procedures 2 must be followed before the Court will vacate the ENE: 3 A. The parties may file a Joint Motion to Dismiss and submit a proposed 4 order to the assigned district judge. If a Joint Motion to Dismiss is filed, the Court will 5 immediately vacate the ENE; 6 B. If the parties settle more than 24 hours before the conference but are 7 not able to file a Joint Motion to Dismiss, they must file a Joint Notice of Settlement 8 containing the electronic signatures of counsel for all settling parties and must also 9 identify a date by which the Joint Motion to Dismiss will be filed; 10 C. If the parties settle less than 24 hours before the conference, counsel 11 for the settling parties must JOINTLY call chambers and inform the Court of the 12 settlement and receive Court permission not to participate in the ENE. 13 Video Conference Instructions: 14 8. The Court will use its official Zoom video conferencing account to hold the 15 ENE. IF YOU ARE UNFAMILIAR WITH ZOOM: Zoom is available on computers 16 through a download on the Zoom website (https://zoom.us/meetings) or on mobile 17 devices through the installation of a free app.4 Joining a Zoom conference does not 18 require creating a Zoom account, but it does require downloading the .exe file (if using a 19 computer) or the app (if using a mobile device). Participants are encouraged to create an 20 account, install Zoom and familiarize themselves with Zoom in advance of the ENE.5 21 There is a cost-free option for creating a Zoom account. 22 9. Prior to the start of the ENE, the Court will email counsel for each party an 23 invitation to join a Zoom video conference that they must provide to participating 24 25 4 If possible, participants are encouraged to use laptops or desktop computers for the video conference, 26 rather than mobile devices.

27 5 For help getting started with Zoom, visit: https://support.zoom.us/hc/en-us/categories/200101697- Getting-Started. 28 1 client(s). The Court will send the invitation to the email addresses listed for counsel in the 2 case docket. If counsel does not receive an invitation to join the Zoom video conference 3 by the end of the day on July 19, 2023, please email chambers at 4 [email protected]. Again, if possible, participants are encouraged to use 5 laptops or desktop computers for the video conference. Participants shall join the video 6 conference by following the ZoomGov Meeting hyperlink in the invitation. Participants 7 who do not have Zoom already installed on their device when they click on the ZoomGov 8 Meeting hyperlink will be prompted to download and install Zoom before proceeding. 9 Zoom may then prompt participants to enter the password included in the invitation.6 All 10 participants will be placed in a waiting room until the ENE begins. 11 10. Each participant should plan to join the Zoom video conference at least five 12 minutes before the start of the ENE to ensure that the ENE begins promptly at 2:00 PM. 13 The Zoom e-mail invitation may indicate an earlier start time, but the ENE will begin at 14 the Court-scheduled time. 15 11. Zoom’s functionalities will allow the Court to conduct the ENE as it 16 ordinarily would conduct an in-person ENE. The Court may divide participants into 17 separate, confidential sessions, which Zoom calls Breakout Rooms.7 In a Breakout Room, 18 the Court will be able to communicate with participants from a single party in 19 confidence. Breakout Rooms will also allow parties and counsel to communicate 20 confidentially without the Court. 21 12. All participants shall display the same level of professionalism during the 22 ENE and be prepared to devote their full attention to the ENE as if they were attending in 23 person, i.e., cannot be driving while speaking to the Court. Because Zoom may quickly 24 deplete the battery of a participant’s device, each participant should ensure that their 25

26 6 A Meeting ID will also be included and may be used along with the password to access the conference 27 if necessary. 7 For more information on what to expect when participating in a Zoom Breakout Room, visit: 28 1 || device is plugged in or that a charging cable is readily available during the video 2 || conference. 3 Questions regarding this case or the mandatory guidelines set forth herein may be 4 || directed to Judge Skomal’s research attorney at (619) 557-2993. Please consult Judge 5 ||Skomal’s rules, available on the Court’s website, before contacting chambers with your 6 || questions. 7 IT IS SO ORDERED. 8 9 ||Dated: April 25, 2023 p / / 10 on. Bernard G. Skomal 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28