Case 3:14-cv-02235-DMS-BLM Document 116 Filed 05/11/17 PageID.2361 Page 1 of 9
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`APPLE INC.,
`
`v.
`
`WI-LAN, INC.,
`
`Plaintiff,
`
`Defendant.
`
`AND RELATED COUNTERCLAIMS
`
`
`
` Case No.: 14cv2235-DMS (BLM),
`consolidated with 14cv1507-DMS
`(BLM)
`
`AMENDED CASE MANAGEMENT
`ORDER REGULATING
`DISCOVERY AND OTHER
`PRETRIAL PROCEEDINGS IN A
`PATENT CASE
`
`1. WiLAN shall serve an amended Disclosure of Asserted Claims and
`
`Infringement Contentions on or before May 15, 2017.
`
`2.
`
`On or before June 15, 2017, each party opposing a claim of infringement shall
`
`serve Invalidity Contentions pursuant to Patent L.R. 3.3 and produce documents as required
`
`by Patent L.R. 3.4.
`
`3.
`
`On or before June 29, 2017, the parties shall exchange Preliminary Claim
`
`Constructions pursuant to Patent L.R. 4.1(a) and identify extrinsic evidence as required by
`
`Patent L.R. 4.1(b).
`
`4.
`
`On or before July 13, 2017, the parties shall exchange Responsive Claim
`
`Constructions pursuant to Patent L.R. 4.1(c) and identify extrinsic evidence as required by
`
`1
`14cv2235-DMS (BLM), consolidated with 14cv1507-DMS (BLM)
`
`
`

`

`Case 3:14-cv-02235-DMS-BLM Document 116 Filed 05/11/17 PageID.2362 Page 2 of 9
`
`
`
`Patent L.R. 4.1(d).
`
`5.
`
`On or before July 27, 2017, parties shall complete and file a Joint Claim
`
`Construction Chart, Joint Claim Construction Worksheet, and Joint Hearing Statement
`
`pursuant to Patent L.R. 4.2.
`
`6.
`
`All discovery intended for use in the Claim Construction Hearing must be
`
`completed by August 24, 2017. See Patent L.R. 4.3.
`
`7.
`
`On or before August 31, 2017, the parties must file simultaneously their
`
`Opening Claim Construction Briefs. See Patent L.R. 4.4(a).
`
`8.
`
`On or before September 25, 2017, the parties must file simultaneously their
`
`Responsive Claim Construction Briefs. See Patent L.R. 4.4(b).
`
`9.
`
`The Claim Construction and tutorial hearing will be held October 30, 2017,
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`at 9:00 a.m. See Patent L.R. 4.5.
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`10. Not later than thirty (30) days after the filing of the Claim Construction Order,
`
`any party relying upon advice of counsel as part of a patent-related claim or defense for
`
`any reason must make the disclosures required by Patent L.R. 3.7
`
`11. A party asserting infringement must serve final amended infringement
`
`contentions, within the meaning of Patent L.R. 3.6(a)(1), not later than thirty (30) days
`
`after service of the Court’s Claim Construction Ruling.
`
`12. A party opposing a claim of infringement must serve final amended invalidity
`
`contentions, within the meaning of Patent L.R. 3.6(b)(2), not later than fifty (50) days after
`
`service of the Court’s Claim Construction ruling.
`
`13. The initial date for the substantial completion of document discovery
`
`including electronically stored information (“ESI”) is September 27, 2017. See Patent
`
`24
`
`L.R. 2.1(a)(1).
`
`25
`
`26
`
`27
`
`28
`
`14. All fact discovery shall be completed by all parties on or before January 12,
`
`2018. All expert discovery shall be completed by all parties on or before April 9, 2018.
`
`"Completed" means that all discovery under Rules 30-36 of the Federal Rules of Civil
`
`Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient period of
`
`2
`14cv2235-DMS (BLM), consolidated with 14cv1507-DMS (BLM)
`
`
`

`

`Case 3:14-cv-02235-DMS-BLM Document 116 Filed 05/11/17 PageID.2363 Page 3 of 9
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`time in advance of the cut-off date, so that it may be completed by the cut-off date, taking
`
`into account the times for service, notice, and response as set forth in the Federal Rules of
`
`Civil Procedure.
`
`Counsel shall promptly and in good faith meet and confer with regard to all
`
`discovery disputes in compliance with Federal Rule of Civil Procedure 37(a)(1) and Civil
`
`Local Rule 26.1(a). All discovery motions must be filed within 30 days of the service of
`
`an objection, answer or response which becomes the subject of dispute or the passage of a
`
`discovery due date without response or production, and only after counsel have met and
`
`conferred and have reached impasse with regard to the particular issue. The Court’s
`
`procedures for resolving discovery disputes are set forth in Magistrate Judge Barbara L.
`
`Major’s Civil Chambers Rules, which are posted on the Court’s website. A failure to
`
`comply in this regard will result in a waiver of a party's discovery issue. Absent an
`
`order of the court, no stipulation continuing or altering this requirement will be
`
`14
`
`recognized by the court.
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`15. All expert disclosures required by Fed. R. Civ. P. 26(a)(2) shall be served on
`
`all parties on or before November 10, 2017. Any contradictory or rebuttal disclosures
`
`within the meaning of Rule 26(a)(2)(D)(ii) shall be disclosed on or before November 20,
`
`2017. Unless otherwise stipulated by the parties, the required expert disclosures shall
`
`include an expert report as required by Rule 26(a)(2)(B). If a written report is not required,
`
`the disclosure must provide the information required under Rule 26(a)(2)(c).
`
`16. Each expert witness designated by a party shall prepare a written report to be
`
`provided to all other parties no later than February 8, 2018, containing the information
`
`required by Fed. R. Civ. P. 26(a)(2)(A) and (B). Except as provided in paragraph 17
`
`below, any party that fails to make these disclosures shall not, absent substantial
`
`justification, be permitted to use evidence or testimony not disclosed at any hearing
`
`or at the time of trial. In addition, the Court may impose sanctions as permitted by
`
`27
`
`Fed. R. Civ. P. 37.
`
`28
`
`17. Any party, through any expert designated, shall in accordance with Fed. R.
`
`3
`14cv2235-DMS (BLM), consolidated with 14cv1507-DMS (BLM)
`
`
`

`

`Case 3:14-cv-02235-DMS-BLM Document 116 Filed 05/11/17 PageID.2364 Page 4 of 9
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`Civ. P. 26(a)(2)(D) and Fed. R. Civ. P. 26(e)(2), supplement any of its expert reports
`
`regarding evidence intended solely to contradict or rebut evidence on the same subject
`
`matter identified in an expert report submitted by another party. Any such supplemental
`
`reports are due on or before March 8, 2018.
`
`18. All other dispositive motions, including those addressing Daubert issues, shall
`
`be FILED on or before April 23, 2018. Please be advised that counsel for the moving party
`
`must obtain a motion hearing date from the law clerk of the judge who will hear the motion.
`
`Failure of counsel to timely request a motion date may result in the motion not being heard.
`
`Motions in Limine are to be filed as directed in the Local Rules, or as otherwise set by
`
`10
`
`Judge Dana M. Sabraw.
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`19. Briefs or memoranda in support of or in opposition to any pending motion
`
`shall not exceed twenty-five (25) pages in length without permission of the judge or
`
`magistrate judge who will hear the motion. No reply memorandum shall exceed ten (10)
`
`pages without leave of the judge or magistrate judge who will hear the motion.
`
`20. A Mandatory Settlement Conference shall be conducted on May 23, 2018 at
`
`9:30 a.m. in the chambers of Magistrate Judge Barbara L. Major located at 333 West
`
`Broadway, Suite 1110, San Diego, CA 92101. All discussions at the Mandatory
`
`Settlement Conference will be informal, off the record, privileged, and confidential.
`
`Counsel for any non-English speaking party is responsible for arranging for the appearance
`
`20
`
`of an interpreter at the conference.
`
`a.
`
`Personal Appearance of Parties Required: All parties, adjusters for
`
`insured defendants, and other representatives of a party having full and complete authority
`
`to enter into a binding settlement, as well as the principal attorneys responsible for the
`
`litigation, must be present in person and legally and factually prepared to discuss
`
`settlement of the case. Counsel appearing without their clients (whether or not counsel has
`
`been given settlement authority) will be cause for immediate imposition of sanctions and
`
`may also result in the immediate termination of the conference.
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`4
`14cv2235-DMS (BLM), consolidated with 14cv1507-DMS (BLM)
`
`
`

`

`Case 3:14-cv-02235-DMS-BLM Document 116 Filed 05/11/17 PageID.2365 Page 5 of 9
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Unless there is good cause, persons required to attend the conference pursuant to
`
`this Order shall not be excused from personal attendance. Requests for excuse from
`
`attendance for good cause shall be made in writing at least three (3) court days prior to the
`
`conference. Failure to appear in person at the Mandatory Settlement Conference will be
`
`grounds for sanctions.
`
`b.
`
`Full Settlement Authority Required: In addition to counsel who will
`
`try the case, a party or party representative with full settlement authority1 must be present
`
`for the conference. In the case of a corporate entity, an authorized representative of the
`
`corporation who is not retained outside counsel must be present and must have
`
`discretionary authority to commit the company to pay an amount up to the amount of
`
`Plaintiff's prayer (excluding punitive damages prayers). The purpose of this requirement
`
`is to have representatives present who can settle the case during the course of the
`
`conference without consulting a superior. Counsel for a government entity may be excused
`
`from this requirement so long as the government attorney who attends the Mandatory
`
`Settlement Conference (1) has primary responsibility for handling the case, and (2) may
`
`negotiate settlement offers which the attorney is willing to recommend to the government
`
`official having ultimate settlement authority.
`
`c.
`
`Confidential Settlement Statements Required: No later than May
`
`11, 2018, the parties shall submit directly to Magistrate Judge Major's chambers (via hand
`
`delivery or email address) confidential settlement statements no more than ten (10) pages
`
`in length. These confidential statements shall not be filed or served on opposing
`
`
`
`1 “Full settlement authority” means that the individuals at the settlement conference must be authorized to
`explore settlement options fully and to agree at that time to any settlement terms acceptable to the parties.
`Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989). The person needs to have
`"unfettered discretion and authority" to change the settlement position of a party. Pitman v. Brinker Int'l,
`Inc., 216 F.R.D. 481, 485-86 (D. Ariz. 2003). The purpose of requiring a person with unlimited settlement
`authority to attend the conference contemplates that the person's view of the case may be altered during
`the face to face conference. Id. at 486. A limited or a sum certain of authority is not adequate. See Nick
`v. Morgan's Foods, Inc., 270 F.3d 590, 595-97 (8th Cir. 2001).
`
`5
`14cv2235-DMS (BLM), consolidated with 14cv1507-DMS (BLM)
`
`
`

`

`Case 3:14-cv-02235-DMS-BLM Document 116 Filed 05/11/17 PageID.2366 Page 6 of 9
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`counsel. Each party's confidential statement must set forth the party’s statement of the
`
`case, identify controlling legal issues, concisely set out issues of liability and damages, and
`
`shall set forth the party’s settlement position, including any previous settlement
`
`negotiations, mediation sessions, or mediation efforts, the last offer or demand made by
`
`that party, and a separate statement of the offer or demand the party is prepared to make at
`
`the settlement conference. If a specific demand or offer for settlement cannot be made at
`
`the time the brief is submitted, then the reasons therefore must be stated along with a
`
`statement as to when the party will be in a position to state a demand or make an offer.
`
`General statements that a party will "negotiate in good faith" is not a specific
`
`10
`
`demand or offer contemplated by this Order. It is assumed that all parties will negotiate in
`
`11
`
`good faith.
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`d.
`
`Requests to Continue a Mandatory Settlement Conference: Any
`
`request to continue the Mandatory Settlement Conference or request for relief from any of
`
`the provisions or requirements of this Order must be sought by a written ex parte
`
`application. The application must (1) be supported by a declaration of counsel setting
`
`forth the reasons and justifications for the relief requested, (2) confirm compliance with
`
`Civil Local Rule 83.3(h), and (3) report the position of opposing counsel or any
`
`unrepresented parties subject to the Order. Absent good cause, requests for continuances
`
`will not be considered unless submitted in writing no fewer than (7) days prior to the
`
`scheduled conference.
`
`If the case is settled in its entirety before the scheduled date of the conference,
`
`counsel and any unrepresented parties must still appear in person, unless a written
`
`joint notice confirming the complete settlement of the case is filed no fewer than
`
`twenty-four (24) hours before the scheduled conference.
`
`21. Pursuant to Local Civil Rule 16.3, all party representatives and claims
`
`adjusters for insured defendants with full and unlimited authority to negotiate and enter
`
`into a binding settlement, as well as the principal attorney(s) responsible for the litigation,
`
`must be present and legally and factually prepared to discuss and resolve the case at the
`
`6
`14cv2235-DMS (BLM), consolidated with 14cv1507-DMS (BLM)
`
`
`

`

`Case 3:14-cv-02235-DMS-BLM Document 116 Filed 05/11/17 PageID.2367 Page 7 of 9
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`mandatory settlement conference. Retained outside corporate counsel shall not appear on
`
`behalf of a corporation as the party who has the authority to negotiate and enter into a
`
`settlement. Failure to attend the conference or obtain proper excuse will be considered
`
`grounds for sanctions.
`
`22.
`
`In order to identify the claims to be tried and eliminate delay and surprise at
`
`trial, the Court enters the following pretrial order pursuant to Fed. R. Civ. P. 16.
`
`23. Parties are excused from the requirement of Local Rule 16.1(f)(2)(a); no
`
`Memoranda of Law or Contentions of Fact are to be filed.
`
`24. All parties or their counsel shall fully comply with the Pretrial Disclosure
`
`requirements of Fed. R. Civ. P. 26(a)(3) on or before May 25, 2018. Failure to comply
`
`with these disclosures requirements could result in evidence preclusion or other sanctions
`
`12
`
`under Fed. R. Civ. P. 37.
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`25. Pursuant to Local Civil Rule 16.1(f)(4), on or before June 1, 2018, the parties
`
`shall meet and confer to comply with the provisions of that section and prepare a proposed
`
`pretrial order in accordance with Local Rule 16.1(f)(6)(c), and containing the following:
`
`a.
`
`A joint neutral statement to be read to the jury, not in excess of one
`
`page, of the nature of the case and the claims and defenses.
`
`b.
`
`A list of the causes of action to be tried, referenced to the Complaint
`
`[and Counterclaim if applicable]. For each cause of action, the order shall succinctly list
`
`the elements of the claim, damages and any defenses. A cause of action in the Complaint
`
`[and/or Counterclaim] which is not listed shall be dismissed with prejudice.
`
`c.
`
`A list, in alphabetical order, of:
`
`i.
`
`Each witness counsel actually expect to call at trial with a brief
`
`statement, not exceeding four sentences, of the substance of the
`
`witnesses’ testimony.
`
`ii.
`
`Each expert witness counsel actually expect to call at trial with a
`
`brief statement, not exceeding four sentences, of the substance of
`
`the expert witnesses’ testimony.
`
`7
`14cv2235-DMS (BLM), consolidated with 14cv1507-DMS (BLM)
`
`
`

`

`Case 3:14-cv-02235-DMS-BLM Document 116 Filed 05/11/17 PageID.2368 Page 8 of 9
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`iii.
`
`Additional witnesses, including experts, counsel do not expect to
`
`call at this time but reserve the right to call at trial along with a
`
`brief statement, not exceeding four sentences, of the substance of
`
`the witnesses’ testimony.
`
`d.
`
`A list of:
`
`i.
`
`All exhibits that counsel actually expect to offer at trial with a
`
`one-sentence description of the exhibit. All exhibits are to be
`
`identified numerically, plaintiff starting with “1” and defendant
`
`beginning with an agreed upon numerical designation.
`
`ii.
`
`All other exhibits that counsel do not expect to offer at this time
`
`but reserve the right to offer if necessary at trial with a one-
`
`sentence description of the exhibit.
`
`e.
`
`A statement of all facts to which the parties stipulate. This statement
`
`shall be on a separate page and will be read to and provided to the jury.
`
`f.
`
`A list of all deposition transcripts by page and line, or videotape
`
`depositions by section, that will be offered at trial.
`
`g.
`
`Counsel will note any objections they have to any other parties’ Fed. R.
`
`18
`
`Civ. P. 26 (a)(3) Pretrial Disclosures.
`
`19
`
`
`
`The Court encourages the parties to consult with the assigned magistrate judge to
`
`20
`
`21
`
`work out any problems in preparation of the proposed pretrial order. Judge Dana M.
`
`Sabraw will entertain any questions concerning the conduct of the trial at the pretrial
`
`22
`
`conference.
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`26. Counsel for plaintiff will be responsible for preparing the pretrial order and
`
`arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f)(6)(a). On or before
`
`June 8, 2018, plaintiff’s counsel must provide opposing counsel with the proposed pretrial
`
`order for review and approval. Opposing counsel must communicate promptly with
`
`plaintiff’s attorney concerning any objections to form or content of the pretrial order, and
`
`both parties should attempt promptly to resolve their differences, if any, concerning the
`
`8
`14cv2235-DMS (BLM), consolidated with 14cv1507-DMS (BLM)
`
`
`

`

`Case 3:14-cv-02235-DMS-BLM Document 116 Filed 05/11/17 PageID.2369 Page 9 of 9
`
`
`
`order.
`
`27. The proposed final pretrial conference order, including objections counsel
`
`have to any other party’s Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared,
`
`served and lodged with Judge Dana M. Sabraw chambers on or before June 15, 2018,
`
`and shall be in the form prescribed in and in compliance with Local Rule 16.1(f)(6)(c).
`
`Counsel shall also bring a court copy of the pretrial order to the pretrial conference.
`
`28. The final pretrial conference shall be held before the Honorable Dana M.
`
`Sabraw, United States District Court Judge, on June 22, 2018 at 10:30 a.m., during which
`
`time the Court will address the submission of motions in limine, trial briefs, proposed voir
`
`dire and jury instructions and the trial schedule.
`
`29. The trial is scheduled to commence on July 23, 2018 at 9:00 a.m.
`
`30. The dates and times set forth herein will not be modified except for good cause
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`shown.
`
`14
`
`31. Plaintiff’s counsel shall serve a copy of this order on all parties that enter this
`
`15
`
`case hereafter.
`
`IT IS SO ORDERED.
`
`
`
`
`
`Dated: 5/10/2017
`
`
`
`
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`9
`14cv2235-DMS (BLM), consolidated with 14cv1507-DMS (BLM)
`
`
`