Hon. Wayne D. Brazil (Ret.)

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Hon. Wayne D. Brazil (Ret.) is fully engaged as a neutral at JAMS, after earning a national and international reputation as one of the most significant innovators and leaders in the field of Alternative Dispute Resolution (ADR). He is an expert in crafting procedures to meet the needs of individual cases – and in finding new directions when movement toward settlement seems to stall. Since joining JAMS, Judge Brazil has mediated and arbitrated a wide range of cases and has been retained repeatedly to preside over mock trials and hearings, providing counsel with highly valued suggestions and critiques.

Judge Brazil spent 25 years as a magistrate judge in the United States District Court for the Northern District of California. He exercised the full range of judicial responsibilities, presiding over civil and criminal trials, managing the pretrial development of civil cases, hearing substantive and procedural motions, and ruling on fee disputes. His extensive work as a settlement judge and on complex discovery matters earned him national recognition and was rewarded when the Chief Justice of the United States appointed him to the committees that write the federal rules of civil procedure and evidence. He also led the teams that designed and implemented the Court’s multi-faceted ADR program, then he served as the Court’s first ADR Magistrate Judge, a position he occupied for more than 15 years.

Judge Brazil conducted more than 2,000 settlement conferences in cases across the full spectrum of the court’s jurisdiction, including employment, civil rights, intellectual property, business contracts, insurance, and all types of tort matters.

Judge Brazil’s approach to mediation is energetic engagement, analytical activism and tenacity. He is respectful of all participants and takes special care to manage the process to maximize the likelihood that the parties will understand settlement best serves all.

ADR Experience and Qualifications

  • Served 25 years as a Federal Magistrate Judge, presiding over trials and evidentiary hearings, hearing a full range of motions, managing conventional and ESI discovery, and conducting settlement conferences in thousands of cases.
  • Judge Brazil oversaw the design and implementation of the Northern District’s multi-faceted ADR program and served as the Court’s first ADR Magistrate Judge for more than 15 years. The Northern District’s ADR program is acknowledged widely to be the most comprehensive and sophisticated in the country.
  • In 2009, the Dispute Resolution Section of the ABA conferred its highest award on Judge Brazil. A decade earlier the New York based International Institute for Conflict Prevention and Resolution (CPR) honored him with its Lifetime Achievement Award.
  • Member of the 9th Circuit’s ADR Committee for 12 years.
  • Served for 6 years on the Editorial Board of the ABA’s Dispute Resolution Magazine.
  • In addition to scores of published opinions, Judge Brazil has written more than 30 journal articles and four books, focusing primarily on settlement, mediation early neutral evaluation, special masters, and civil discovery.
  • Judge Brazil served the Judicial Conference of the United States as a member of the committees on Civil Rules and on Evidence, and as reporter for the Conference’s Special Committee on the Civil Justice Reform Act.
  • Judge Brazil has trained thousands of judges and lawyers from all over the world in mediation, early neutral evaluation, court-sponsored arbitration, and case management – fields in which his publications have earned numerous awards.

Representative Matters

Intellectual Property

  • Presided at mock trials and hearings providing evaluation in major pharmaceutical cases
  • Mediated significant pre-filing dispute between joint venturers developing major medical products
  • Mediated several TM disputes involving retail products, software companies, and education services
  • Mediated matter involving method for searching large data bases using variable sequences of criteria (three independent defendants)
  • Mediated matter involving source code for protocols to protect security of streamed audio/video content
  • Mediated matter involving protocols for effective wireless communication by multiple users in closed environment
  • Mediated matter involving means for assuring integrity of forensic duplication and analysis of electronically stored data
  • Mediated matter involving means for effective and secure communication between remote servers and on-site data processors
  • Mediated matter involving copyright issues regarding unauthorized distribution of core IP source code
  • Mediated trademark matter involving international bank and international accounting firm litigating rights (in several countries) to use similar logos
  • Highfields Capital Management v. Doe, 385 F.Supp.2d 969; dispute over access to information that would identify persons who posted allegedly defamatory comments on internet message board
  • Sharper Image Corp. v. Honeywell International, Inc., 222 F.R.D. 621; scope of waiver of attorney-client privilege as result of asserting advice of counsel defense in patent case
  • Intermedics v. Ventritex, multiple reported opinions, e.g., 775 F.Supp. 1258; alleged theft of trade secrets re micro-circuitry for implantable defibrillators; month-long jury trial to judgment

Business and Contract Disputes

  • Mediated dispute between hospital and provider of full range of IT services and support, related to electronic medical records
  • Mediated disputes regarding termination of franchise agreements
  • Mediated many cases alleging breaches of commercial contracts and fraud
  • Mediated consumer class action involving car care products
  • Mediated breach of contract between founders of start-up tech company
  • Mediated breach of contract between investor and internet venture
  • Mediated breach of multi-site construction and maintenance contract between state government and general contractor
  • Mediated alleged fraud and breach of contract by builder for investors
  • Mediated breach of contract between former shareholders of company and the entity that purchased it
  • Mediated breach of contract to jointly develop software/source code in semi-conductor industry
  • Mediated breach of real estate contract between physicians’ group and high end residential cooperative
  • Mediated breach of contract between general contractor and Indian tribe to build casino/hotel complex
  • Mediated alleged fraud and breach of contract by pest control company
  • Dallas Corp. v. Ido Corp. and BART; court trial over responsibility for revamping BART fleet; multi-million dollar judgment, after which case settled

Consumer Class Action

  • Presided at mock class certification in huge telecommunications case with billions in dispute
  • Mediated large real estate and investment fraud cases
  • Mediated matter involving allegations of "cramming" by national provider of telephone services

ADA 

  • Mediated class action about accessibility of a national chain’s facilities and programs being allegedly inaccessible
  • Millard v. Burger King, et. al., access case; managed aspects of pretrial and conducted successful settlement negotiations

Labor and Employment

  • Arbitrated employment compensation and reimbursement claims
  • Mediated several meal, rest break, and under compensation cases
  • Mediated health care plan dispute between union and major health care provider
  • Mediated breach of contract/fraud between national network of radio stations and a prominent host
  • Mediated matters involving sexual harassment, discrimination and wrongful termination
  • Mediated dispute between employer and union regarding protection of right to solicit, and liability for exceeding that right
  • Mediated wrongful termination claim by co-founder of international provider of IT support
  • Mediated wrongful termination claim by senior executive in violation of public policy (refusal to bribe foreign government)
  • Mediated matter involving violation by direct employer and large retailer of meal and rest break rights of janitorial workers
  • Thomas v. T.D. Ameritrade, class action re overtime and benefits; approved class-wide settlement

Civil Rights

  • Mediated matter involving wrongful death due to excessive force during arrest by local police
  • King v. City of Oakland, fatal shooting of suspect by police; conducted successful settlement negotiations that yielded seven-figure settlement
  • Williams v. City of Clayton, race discrimination allegations against police officers; tried twice; jury verdict
  • Robertson v. City & County of San Francisco, allegations of police misconduct; managed case from filing through pretrial
  • Kelly v. City of San Jose, 114 F.R.D. 653; principles informing and scope of “official information” privilege

Personal Injury

  • Mediated matter involving serious injuries suffered by worker on construction site who fell from inadequately protected deck
  • Mediated matter involving invasion of privacy by searching computer files of high level executive

Insurance

  • Mediated alleged breach of duty by union to pay premiums for health care benefits for its members
  • Mediated alleged bad faith breach by carrier of duties to insured health care professionals
  • Mediated dispute between receiver for failed workers’ comp carrier and an insured over liability for large deductibles
  • Mediated dispute between carriers for a contractor over liability for contribution to settlement fund
  • Bernstein v. Travelers Ins., Inc., 447 F. Supp.2d 1100; relevance of carrier’s reserves to issues of bad faith
  • Scottsdale Insurance Co. v. Homestead Land Development Corp., 145 F.R.D. 523; dispute over fees in complex coverage litigation re slander claims

Real Property

  • Mediated dispute re enforceability of and compliance with state-wide, multi-year contract for maintenance and repair of state court houses
  • Mediated dispute between owners of real property and general contractor (with equity interest in that property) re quality and timeliness of construction and re respective ownership interests
  • Mediated dispute between owners (an association of owners of condos) of high rise and a major commercial tenant over fixtures, advertising, and esthetics
  • Mediated dispute where buyers alleged that Pest Control Company conspired with sellers to defraud them, negligently conducted inspections, and left premises with virtually no market value
  • Olam v. Congress Mortgage, Inc., 68 F.Supp.2d 1145 (N.D. CA 2000). Homeowner alleges that Mortgage company conspired to acquire title to two properties by manipulating her into loan agreements on which she would default
  • United States v. 22.80 Acres of Land, 107 F.R.D. 20 (N.D. CA 1985). Eminent domain proceedings in which parties vigorously disputed value of property being taken

Product Liability/Torts

  • Skaggs. v. Uwatec, Inc., allegations of known defects in deep water diving apparatus; managed discovery and ruled on motions in contentious case
  • Stovall v. Channel Star Excursions, 1989 WL 162322; ruling re whether plaintiff qualified as a “seaman” for purposes of Jones Act

Environmental Law

  • Humbolt Baykeeper v. Union Pacific Railroad, 244 F.R.D. 560; ruling re types of discovery reasonably necessary to assess scope and sources of contamination

ERISA 

  • Mediated or arbitrated multiple matters alleging wrongful denial of benefits due when employee separated from employer
  • Bovey v. Informal Plan for Retired Officers of Teamsters; managed case development and resolved discovery disputes

Civil Discovery/Special Master/Discovery Referee

  • Refereed deposition of attorney-witness in whistle-blower case; ruled on privilege and work product issues
  • In re Convergent Technologies Securities Litigation, 108 F.R.D. 328; applied “proportionality” requirement to discovery disputes in contentious securities class action 
  • United States v. Chevron Texaco Corp., 241 F.Supp.2d 1065; documents protected from discovery by IRS in tax case
  • Jumpsport, Inc. v. Jumpking, Inc., 213 F.R.D. 329; limits on reach of work product protection

Books, Articles, and Chapters in Treatises 

  • Early Neutral Evaluation: A Guide For Neutrals, Advocates, and ADR Program Designers, Dispute Resolution Section, ABA, forthcoming
  • Effective Approaches to Settlement: A Handbook for Lawyers and Judges, published by Prentice Hall Law and Business, 1988
  • Settling Civil Suits: Litigators' Views About Appropriate Roles and Effective Techniques for Federal Judges, ABA Press, 1985
  • Managing Complex Litigation: A Practical Guide to the Use of Special Masters (with Geoffrey C. Hazard and Paul R. Rice), American Bar Foundation, 1983
  • Thoughts About Impasse for Mediators in Court Programs, 15 Disp. Res. Mag. 11, Winter 2009
  • ENE or Mediation? When Might ENE Deliver More Value? 14 Disp. Res. Mag. 10, Fall 2007
  • Hosting Mediations as a Representative of the System of Civil Justice, 22 Ohio State J. Disp. Res. 227, Winter 2007
  • Professionalism and Misguided Negotiating in The Negotiator’s Fieldbook; The Desk Reference for the Experienced Negotiator, ed. by Andrea Kupfer Schneider and Christopher Honeyman, ABA, 2006
  • 3 Moore’s Federal Practice, Chapter 16, Pretrial Conferences; Scheduling; Management (Matthew Bender 3d ed. 1997 and updates thereafter)
  • 7 Moore’s Federal Practice, Chapter 37, Failure to Make Disclosure or Cooperate in Discovery: Sanctions (Matthew Bender 3d ed. 1997 and updates thereafter)
  • Special Masters in Complex Cases: Extending the Judiciary or Reshaping Adjudication?, 53 University of Chicago Law Review 394, Spring 1986
  • Special Masters in the Pretrial Development of Big Cases: Potential and Problems, 1982 A.B.F. Res. J. 287, Spring 1982
  • Civil Discovery: Lawyers' Views of Its Effectiveness, Its Principal Problems and Abuses, 1980 A.B.F. Res. J. 787, Fall 1980 (cited twice in Advisory Committee's Note to support 1983 amendments to Rule 26 of the Federal Rules of Civil Procedure)
  • The Adversary Character of Civil Discovery: A Critique and Proposals for Change, 31 Vand. L. Rev. 1295 (Fall 1978) (cited in Advisory Committee's Notes to support 1983 and 1993 amendments to Rule 26 of the Federal Rules of Civil Procedure).

Honors, Memberships, and Professional Activities

  • Recognized as a Top California Neutral "Rising Star," Daily Journal, 2012
  • Editorial Board, Dispute Resolution Magazine, published by the Section of Dispute Resolution of the ABA, 2006-present
  • D’Alemberte/Raven Award from the Dispute Resolution Section of the ABA, 2009
  • Standing Committee on ADR for the Judicial Council of the Ninth Circuit, 1998-2009; Task Force on Alternative Dispute Resolution, Ninth Circuit Judicial Council, 1985-1990
  • The Mediation Society of Northern California: Annual Award for “Outstanding Contribution in the Field of Alternative Dispute Resolution,” 2007
  • California Dispute Resolution Council: Donald Weckstein Award for “Outstanding Contribution to the Profession of ADR Neutrals,” 2007
  • American College of Civil Trial Mediators (national association headquartered in Florida): award for “Outstanding Achievement in the Advancement of Alternative Dispute Resolution,” 2005
  • CPR Dispute Resolution Institute (NY): awards for articles and a book in the field of Alternative Dispute Resolution, 1985, 1988, 1989, and 1991; Lifetime Achievement Award, 1998
  • Advisory Committee on Intellectual Property Local Rules, Northern District of California, 1995-1997 
  • Judicial Conference of the United States, Advisory Committee on Civil Rules (re-appointed October 1990 and December 1993), 1988-1994
  • Judicial Conference of the United States, Advisory Committee on the Federal Rules of Evidence, liaison member from the Judicial Conference’s Advisory Committee on Civil Rules, 1993-1994
  • Member and Subcommittee Chair, Joint Commission on Discovery Reform, California State Bar and Judicial Council of California, 1984-1986
  • "Using Mind Over Matter," ADR Profile, Daily Journal, September 14, 2012

Background and Education

  • Law Professor (“Professor from Practice”), Berkeley Law (Boalt Hall), University of California, Berkeley, full-time 2009-2011; part-time 2011-present 
  • United States Magistrate Judge, United States District Court, Northern District of California, June 1984-October 2009
  • Professor of Law, Hastings College of the Law, University of California, San Francisco, California, Courses: Civil Procedure and Civil Rights, 1980-1984
  • Associate Professor of Law, University of Missouri, Columbia, Federal Courts, Civil Procedure, Professional Responsibility, 1978-1980
  • Visiting Assistant Professor of Law, University of Kentucky, Lexington, Course: Litigation Skills, January 1978-June 1978 
  • Farella, Braun & Martel, Litigation Associate, San Francisco, California, 1975-1977
  • Extern Law Clerk, Chief Justice Donald R. Wright, California Supreme Court, Fall, 1974
  • Extern Law Clerk, Judge John J. Purchio, Superior Court, Juvenile Division, Alameda County, California, 1973-1974 
  • J.D., University of California, Berkeley School of Law (formerly Boalt Hall School of Law), Order of the Coif, 1975
  • Ph.D. in American Political and Cultural History, Modern European and American Intellectual History, Harvard University, 1975
  • M.A. in American History, Harvard University, Woodrow Wilson Fellow, 1967
  • B.A., Stanford University, Graduated with Great Distinction, Lloyd W. Dinkelspiel Award, Phi Beta Kappa, 1966