GLOBAL DATA SYSTEMS, INC. v. DIMENSION DATA NORTH AMERICA (D.Ariz. 9-4-2007)

LAWRENCE ANDERSON, Magistrate Judge

This matter arises on the parties' joint letter, dated September 4, 2007, requesting that the Tuesday, September 25, 2007 settlement conference currently scheduled for 2:00 p.m. be reset to 9:30 a.m. on the same date. The parties indicate that party representatives will be traveling from Louisiana and Massachusetts to attend the settlement conference and the parties wish to ensure "they have the benefit of a full day, if necessary, to try and resolve the matter." The parties also request that the Court modify its Settlement Conference Order because of their concern that candid presentations of each side's factual and legal claims or defenses will "create a risk of further polarizing the parties at the outset of the [settlement conference]." The parties also seek another modification of the Settlement Conference Order that they be permitted "to omit from the settlement conference memoranda [the obligation to] exchange `the amount that the Plaintiff is currently willing to accept and Defendant(s) is/are willing to offer.'" They claim that counsel will include that separate information in the memoranda they submit to the Court which will, obviously, be information different from what is exchanged with adverse counsel.

The file reflects that the Complaint in this case was filed on May 5, 2006; the Amended Answer on October 13, 2006. Leave to file the First Amended Complaint was granted on December 14, 2006. Current Rule 16 deadlines include disclosure of the parties' experts by October 5 and November 16, 2007, respectively. All discovery has been ordered to be completed by January 31, 2008. Dispositive motions are due by February 29, 2008. Interrogatories and documents have been submitted and/or produced; depositions have been noticed for early and mid-September, 2007.

On May 25, 2007, the parties requested that a magistrate judge be appointed to conduct a settlement conference. After succeeding in the reassignment of the settlement conference to a more convenient Phoenix magistrate judge than the Flagstaff Magistrate Judge, the parties now desire to significantly modify the rules by which the undersigned conducts his settlement conferences. Of course, the Court will reschedule the settlement conference to begin a 9:30 a.m. to accommodate out-of-state parties and/or corporate representatives. However, counsel and the parties must understand that if it becomes clear to the undersigned during the Court's private caucauses with one side or the other that one or both sides are adopting an immovable or unreasonable settlement position or are insistent upon in a belief that this case will be resolved by dispositive motion which dictates the value of the case for settlement purposes, the settlement conference will be vacated. In other words, resetting this matter to 9:30 a.m. is no indication that the settlement conference will go all day without significant progress being made towards settlement. Lunch will be taken at 12:00 noon.

Seventeen years as a trial judge and nearly a like number of years as a trial lawyer has instructed that once a lawsuit has been filed, especially one like this case with allegations of the commission of intentional torts, allegations supporting an award of punitive damages based upon an "evil mind" and mutual requests for awards of reasonable attorneys' fees to the prevailing party, the parties have now entered the "real world" of litigation where there will be a winner and a loser and one's life-savings and professional reputation are at risk. A federal lawsuit is not like poker game where the card hands are not disclosed to all remaining players until the end of the game. In the litigation realm if all facts are disclosed as required, an experienced and neutral lawyer or judicial officer may discern whether a party likely has a meritorious claim or defense or whether a genuine dispute over the facts exists for jury resolution. It is naive to believe that at this stage of the litigation, avoidance of a lawyer's or settlement judge's candid words and arguments may offend the sensitivities of businessmen and professionals and will more likely lead to an early voluntary resolution of this case. It is the lawyers' candid words and arguments, surely to be expressed without restraint to a trial judge or jury at a later time absent a settlement, that will give the parties the real sense of this case and the risks associated with continued litigation. In fact, if all the cards (facts and arguments) are placed on the table, the opposite is more likely. It is the actual use of a litigator's candid words and arguments, made orally or contained within the non-filed settlement conference memoranda, supported by the evidence or reasonable inferences from the evidence, which paint his view of his client's perception of the true picture of "coming attractions" that will directly deliver to the parties the impact and realization that some other person (trial judge) or group of persons (jury) will resolve this case one way or the other if the parties do not voluntarily do so themselves. There should be no "pulling punches" within, of course, the bounds of legal ethics and professionalism why each lawyer believes that his or her client will prevail at trial. Thus, the Court does not agree with the request that there should be separate memoranda with separate information or dollar figures shared with only the settlement conference judge. The settlement conference memoranda must, as ordered, be read by all adverse counsel and parties prior to the settlement conference. Full and candid disclosure is the spirit upon which the federal rules of discovery are predicated to determine the truth and the predicate upon which undersigned's settlement conferences are held.

If the parties desire to mediate their differences through privately-paid mediators wherein the parties may dictate the rules of mediation, the Settlement Conference Order gives them that option if exercised in a timely fashion.

Accordingly,

IT IS ORDERED that the parties informal request to modify the start time of the settlement conference is GRANTED. The Tuesday, September 25, 2007 settlement conference is hereby reset to 9:30 a.m. Arizona time. All other informal requests for modification of the Settlement Conference Order are DENIED. Except for the time, all other orders contained in August 2, 2007 Settlement Conference Order is hereby AFFIRMED.