The parties in this patent infringement action could not agree on the order of proof at trial. Defendants sought to present their invalidity defense first, arguing that if the patent is invalid, they could not be liable for infringement. The plaintiffs opposed the request to re-order the proof at trial and contended that their infringement claim should be presented first.

The district court noted that it had broad discretion to "exercise reasonable control over the mode and order of examining witnesses and presenting evidence." Federal Evidence Rule 611(a); see also Matter of Yagman, 796 F.2d 1165, 1171 (9th Cir. 1996) ("[T]he conduct and order of the trial are matters vested in the discretion of the district judge."); Gen. Signal Corp. v. MCI Telecomm. Corp., 66 F.3d 1500, 1507 (9th Cir. 1995) (reviewing district court's trial management for abuse of discretion).

The district court then determined that the infringement case should proceed first. "Having considered the complexity of this case, the risk of jury confusion, and the overlapping evidence relating to the parties' claims and defenses, this Court agrees with Plaintiffs that they should present their case first, with the invalidity and non-infringement defenses presented during witness cross-examination or Defendants' case that follows. See Plumtree Software, Inc. v. Datamize, LLC, 2003 WL 25841157, at *4-5 (N.D. Cal. 2003) ('To require [the patentee] to present second might invite juror confusion on the issue of burden of proof, as [the patentee] essentially would be put in the position of rebutting [the alleged infringers'] defensive claims.')."

The district court instead concluded that jury instructions on the burden of proof would be sufficient to facilitate jury deliberations. "At the conclusion of all the evidence, this Court will instruct the jury on each party's burden of proof as to their respective claims and affirmative defenses assisted by jury instructions, so as to facilitate efficient jury deliberations."

David Grober v. Mako Products, Inc., et al., Case No. 2:04-CV-8604-JZ (DTBx)