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No. 11-55169 – ORDER SETTING ASSESSMENT CONFERENCE – March 21, 2011 at 2 PM Pacific
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID ANDERSON, Lt. Col; et al.,
Plaintiffs – Appellants,
CHRISTOPHER COX, an individual; et
Defendants – Appellees.
Date: March 21, 2011
Time: 2:00 p.m.
Pacific (San Francisco) Time
The Mediation Program of the Ninth Circuit Court of Appeals facilitates
settlement while appeals are pending. See Fed. R. App. P. 33 and Ninth Cir. R.
The court has scheduled a telephone settlement assessment conference, with
counsel only, on March 21, 2011, at 2:00 p.m. PACIFIC (San Francisco) Time
to discuss whether this case is appropriate for participation in the Mediation
Program. The Circuit Mediator will initiate the conference call by contacting each
person on the attached list of participants at the telephone number listed. Please be
available for the call at least five minutes before the scheduled time.
Counsel should review the attached list and inform the Mediation Assistant
by email (Beatriz_Smith@ca9.uscourts.gov) at least 72 hours in advance of the
scheduled call of any of the following: (1) any attorneys on the list of counsel who
will not be participating in the conference; (2) the direct dial phone number of any
participant if it is not listed; and (3) any other corrections to the list.
Please notify the Circuit Mediator immediately by fax (415-355-8566) if the
dispute is settled, the appeal is dismissed or if counsel has an unavoidable
scheduling conflict. Please copy all counsel on any such communications.
MAR 03 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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All discussions that take place in the context of the assessment conference
are strictly confidential.
For more detailed information about the assessment conference,
confidentiality, the Mediation Program and its procedures generally, please see the
attachment to this order and the Mediation Program web site:
The briefing schedule previously set by the court remains in effect.
FOR THE COURT:
By: Elisa P. Monterola
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LIST OF CONFERENCE PARTICIPANTS
David Anderson, Lt. Col.; et al.
Plaintiffs – Appellants
Christopher Cox, an individual; et al.
Defendants – Appellees
A. Clifton Hodges, Esq.
HODGES & ASSOCIATES
4 East Holly Street, Suite 202
Pasadena, CA 91103-3900
Andre Birotte, Esq.
EMAIL: No Email Address
OFFICE OF THE U.S. ATTORNEY
312 North Spring Street, Suite 1200
Los Angeles, CA 90012
Leon Warren Weidman, AUSA
Keith M. Staub, Esq.
USLA – OFFICE OF THE U.S.
300 North Los Angeles Street
Room 7516 Federal Bldg.
Los Angeles, CA 90012
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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
CIRCUIT MEDIATION OFFICE
Phone: 415-355-7900 Fax: 415-355-8566
INFORMATION ABOUT ASSESSMENT CONFERENCES
Overview of Purpose and Participants
• The purpose of the assessment conference is to provide an opportunity for
counsel and the Circuit Mediator to have a frank discussion about
settlement. The mediator will explore the parties’ interests in settlement
and, if appropriate, work with counsel to design a process to pursue
resolution of the dispute.
• The conference will be conducted by one of the nine Circuit Mediators, all
of whom are court employees with extensive mediation and litigation
experience. Appeals are randomly assigned to the Circuit Mediators
irrespective of the subject matter or issues on appeal. The Circuit Mediators
are authorized to file orders on most procedural matters, including vacating
or moving the briefing schedule.
• Counsel for all parties who intend to file briefs in the case should participate
in the assessment conference. The lawyer with the closest relationship to the
client should be on the call. Clients are neither expected nor required to
participate in the assessment conference.
• In advance of the conference, counsel should have a discussion with their
clients about their goals in the litigation, its possible costs and outcomes
(good and bad), the potential for further legal proceedings, and what issues
beyond the litigation might be explored in mediation. (See the court’s
website for a list of questions for exploring the suitability of the dispute for
• During the conference, counsel and the Circuit Mediator will discuss the
factual and legal background of the dispute, the legal issues involved in the
litigation and on appeal, any related legal proceedings, and any other
considerations that may affect the parties’ willingness to engage in
settlement discussions. The scope of discussions is not limited to the issues
on appeal and can include related legal proceedings or any other issues
between the parties.
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• Settlement-related information disclosed to a Circuit Mediator will be kept
confidential and will not be disclosed to the judges deciding the appeal or to
any other person outside the Mediation Program participants. Ninth Cir. R.
• All participants in the assessment conference are required to abide by the
Mediation Program’s confidentiality rules. With limited exceptions, any
communication made by the Circuit Mediator or any participant during the
conference may not be used in any pending or future proceeding in this court
or any other forum and may not be disclosed to anyone who is not a
participant. Gen. Or. 7.4.
Likely Outcomes of Assessment Conference
• At the conclusion of the assessment conference, the Circuit Mediator may
confirm in an order the agreements of the parties regarding the scope, process
and timing of any further settlement efforts. Typical settlement processes
include in-person mediation sessions, telephone settlement dialogues
facilitated by the Circuit Mediator, or direct discussions between counsel.
• The parties may agree to defer briefing in order to focus on settlement efforts
or to provide an opportunity for circumstances to develop that might make
settlement more likely. In most cases, the deferral of briefing will not delay
disposition of the appeal, since the date of the filing of the notice of appeal
controls when an appeal is assigned to a three-judge panel for decision.
• At any point that the parties choose not to pursue settlement efforts, the
Circuit Mediator will work with the parties to resolve any outstanding
procedural issues and will enter orders effectuating any procedural
More information is available on the Mediation Circuit link on the Ninth
Circuit website www.ca9.uscourts.gov/mediation.