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`Plaintiff,
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`SAN DIEGO DIVISION
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`NUVASIVE, INC., a Delaware
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`CASE NO.: 18-cv-00347-CAB-MDD
`corporation,
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`PRETRIAL ORDER
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`Judge: Hon. Cathy Ann Bencivengo
`ALPHATEC HOLDINGS, INC., a
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`Courtroom: 15A
`Delaware corporation, and ALPHATEC
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`SPINE, INC., a California corporation,
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`Trial Date: January 10, 2022
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`Defendants.
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`v.
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`PRETRIAL ORDER
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`18-cv-00347-CAB-MDD
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`Case 3:18-cv-00347-CAB-MDD Document 355 Filed 11/16/21 PageID.32640 Page 2 of 1204
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`Following pretrial proceedings pursuant to Fed. R. Civ. P. 16 and CivLR
`16.1.f.6.
`IT IS ORDERED:
`NATURE OF THE CASE
`I.
` This is an action for patent infringement. Plaintiff NuVasive, Inc.,
`(NuVasive) alleges that Defendants Alphatec Holdings, Inc. and Alphatec Spine,
`Inc. (jointly Alphatec) infringe three U.S. Patents.
`U.S. Patent No. 8,439,832
`(which will generally be referred to as the ‘832 Patent);
`U.S. Patent No. 7,819,801
` (which will generally be referred to as the ‘801 Patent); and
`U.S. Patent No. 9,974,531
` (which will generally be referred to at the ‘531 Patent)
`These patents relate to the field of spinal surgery, more specifically surgical
`access systems for the performance of spinal surgery and disk replacement
`procedures.
`NuVasive owns these three patents and alleges that surgical access systems
`sold by Alphatec infringe these patents and that Alphatec’s infringement is willful.
`It is NuVasive’s burden to prove by a preponderance of the evidence that
`Alphatec’s accused systems infringe NuVasive’s patents and that the infringement
`is willful. Regarding the ‘832 Patent, there has already been a determination that
`Alphatec’s system infringes the asserted claims of that patent, so you, the jury, will
`only consider whether NuVasive proves that infringement to be willful. As to the
`claims of the other two patents, you the jury will decide if the claims are infringed
`as well as the question of willfulness. You should not infer from the determination
`that the ‘832 patent is infringed that the claims of the other asserted patents are also
`infringed. Each patent claim must be considered individually.
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`PRETRIAL ORDER
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`Case 3:18-cv-00347-CAB-MDD Document 355 Filed 11/16/21 PageID.32641 Page 3 of 1204
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`Alphatec denies infringement of the ‘801 and ‘531 patents and denies willful
`infringement of all the asserted patents. Alphatec further alleges that the asserted
`patens are invalid. Alphatec has the burden of proving invalidity by clear and
`convincing evidence.
`NuVasive seeks damages for the alleged infringements of its patents in the
`form of lost profits and a reasonable royalty. NuVasive must prove its damages by
`a preponderance of the evidence. Alphatec denies that NuVasive is entitled to any
`award of damages.
`
`II. CAUSES OF ACTION
`A. NuVasive’s Causes of Action
`NuVasive filed its Amended Complaint for Patent Infringement [Doc.
`1.
`No. 110] on September 13, 2018 (“Operative Complaint”) originally alleging Eleven
`causes of action for patent infringement.
`On September 24, 2021, NuVasive provided its Final Disclosure of
`2.
`Patent Claims to be Asserted at Trial [Doc No. 336]. In accordance with that
`disclosure, the following causes of action will be tried to the jury at the January 2022
`trial:
`• Third Cause of Action: Direct1 and willful infringement of Claims 1, 3, 9,
`and 10 of the ’832 Patent under 35 U.S.C. §§ 271(a);
`• First Cause of Action: Direct and willful infringement of Claims 1, 2, 15,
`16, and 26 of the ’801 Patent under 35 U.S.C. §§ 271(a);
`• Tenth Cause of Action: Direct and willful infringement of Claims 1 and 39
`of the ’531 Patent under 35 U.S.C. §§ 271(a).
`All other causes of action and claims in NuVasive’s Operative
`3.
`Complaint are hereby dismissed with prejudice.
`NuVasive owns the ’832 Patent and alleges that the ’832 Patent is valid.
`4.
`NuVasive alleges that Alphatec has infringed and infringes claims 1, 3, 9, and 10 of
`
`1 It has been determined that Alphatec infringes claims 1, 3, 9, and 10 of the ’832 patent. [Doc. No. 281 at 6.]
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`PRETRIAL ORDER
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`the ’832 Patent (Third Cause of Action) by making, using, offering to sell, and/or
`selling the following Alphatec products: Alphatec’s K-wire, Initial Dilator,
`Secondary Dilator, Squadron Lateral Retractor Body, Squadron Lateral Retractor
`Right Blade, Squadron Lateral Retractor Left Blade, Squadron Lateral Retractor
`Posterior Blade, and the 4th Blade.
`NuVasive owns the ’801 Patent and alleges that the ’801 Patent is valid.
`5.
`NuVasive alleges that Alphatec has infringed and infringes claims 1, 2, 15, 16, and
`26 of the ’801 Patent (First Cause of Action) by making, using, offering to sell,
`and/or selling the following Alphatec products: Alphatec’s Initial Dilator, Secondary
`Dilator, Squadron Lateral Retractor Body, Squadron Lateral Retractor Right Blade,
`Squadron Lateral Retractor Left Blade, Squadron Lateral Retractor Posterior Blade,
`Squadron Lateral Retractor Right Handle Arm, Squadron Lateral Left Handle Arm,
`Intradiscal Shim, Shim Inserter and K-Wire.
`NuVasive owns the ’531 Patent and alleges that the ’531 Patent is valid.
`6.
`NuVasive alleges that Alphatec has infringed and infringes claims 1 and 39 of the
`’531 Patent (Tenth Cause of Action) by making, using, offering to sell, and/or
`selling, the following Alphatec products: Alphatec’s Squadron Lateral Retractor
`Body, the Squadron Lateral Retractor Right Blade, the Squadron Lateral Retractor
`Left Blade, the Squadron Lateral Retractor Posterior Blade, the Squadron Lateral
`Retractor Right Arm Extender, the Squadron Lateral Retractor Left Arm Extender,
`the Initial Dilator, the Secondary Dilator, the k-wire, the Intradiscal Shim, the
`Universal Clip, and the accused products additionally include “lateral implants
`(including Alphatec Battalion Lateral Spacer, Transcend LIF PEEK Spacer, Titec-
`Coated LLIF implants, and IdentiTi implants)."
`As set forth in NuVasive’s Complaint, NuVasive seeks monetary and
`7.
`equitable relief. NuVasive is seeking damages (including lost profits and/or
`reasonable royalty) in an amount adequate to compensate NuVasive for Alphatec’s
`infringement, in accordance with 35 U.S.C. § 284. NuVasive is separately seeking
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`PRETRIAL ORDER
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`injunctive relief for future infringement. NuVasive contends that an award of
`ongoing royalties
`is
`inadequate
`to compensate NuVasive for Alphatec’s
`infringement, and if an injunction is not awarded, NuVasive seeks an award of an
`ongoing royalty, including an enhanced ongoing royalty. NuVasive also seeks
`supplemental damages and an accounting of past damages for infringement up to the
`date of the payment, including pre-verdict damages, along with prejudgment and
`post-judgement interest. NuVasive also seeks a judgement that Alphatec’s
`infringement was willful and an enhancement of damages due to Alphatec’s willful
`infringement. NuVasive also seeks an award of its attorneys’ fees and costs because
`this is an exceptional case, including due to Alphatec’s willful infringement.
`NuVasive also seeks a declaratory judgment that Alphatec infringes all asserted
`claims and that each and every asserted claim is valid and enforceable. NuVasive’s
`Complaint includes the following points of relief:
`• Declaring that the Asserted Patents are valid and enforceable, and that
`Alphatec has infringed one or more of the elected claims of the Asserted
`Patents;
`• Declaring that Alphatec has willfully infringed each of the Asserted
`Patents;
`• Preliminarily and permanently enjoining Alphatec, its officers, partners,
`employees, agents, parents, subsidiaries, attorneys, and anyone acting in
`concert or participation with any of them, from further infringing, each of
`the Asserted Patents, in accordance with 35 U.S.C. § 283;
`• Awarding NuVasive damages (in lost profits and/or reasonable royalty) in
`an amount adequate to compensate NuVasive for Alphatec’s infringement,
`in accordance with 35 U.S.C. § 284;
`• Awarding NuVasive treble damages based on Alphatec’s willful
`infringement of the Asserted Patents, in accordance with 35 U.S.C. § 284;
`• Awarding NuVasive attorney’s fees and costs incurred by NuVasive in
`accordance with 35 U.S.C. § 285; and
`• Granting such other and further relief as this Court may deem just and
`appropriate.
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`PRETRIAL ORDER
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`B. Alphatec’s Defenses and Causes of Action
`Alphatec filed its Answer, Affirmative Defenses, and Counterclaims to
`8.
`NuVasive’s Operative Complaint (“Answer”) on October 12, 2018. In addition to
`denying NuVasive’s allegations in its Third Cause of Action, First Cause of Action,
`and Tenth Cause of Action, Alphatec’s Answer alleged and asserted the following
`affirmative defenses to NuVasive’s Operative Complaint to be tried at trial pursuant
`to Doc. Nos. 335 and 336:
`• Second Affirmative Defense: Alphatec has not infringed and does not
`currently infringe, either directly or indirectly, literally or under the doctrine
`of equivalents, any valid, enforceable claim of the Asserted Patents;
`• Third Affirmative Defense: At least claims 1, 3, 9, and 10 of the ’832 Patent,
`claims 1, 2, 15, 16, and 26 of the ’801 Patent, and claims 1 and 39 of the 531
`Patent are invalid for failure to comply with 35 U.S.C. §§ 103.
`Additionally, Alphatec’s Answer alleged and asserted the following
`9.
`counterclaims in response to NuVasive’s Operative Complaint to be tried at trial:
`• Invalidity of the ’832 Patent: At least claims 1, 3, 9, and 10 of the ’832 Patent
`are invalid as obvious for failure to comply with 35 U.S.C. §§ 103.
`• Invalidity of the ’801 Patent: At least claims 1, 2, 15, 16, and 26 of the ’801
`Patent are invalid as obvious for failure to comply with 35 U.S.C. §§ 103.
`• Invalidity of the ’531 Patent: At least claims 1 and 39 of the ’531 Patent are
`invalid as obvious for failure to comply with 35 U.S.C. §§ 103.
`In Doc. No. 338, Alphatec disclosed the invalidity references and
`10.
`combinations it will assert at trial. Alphatec contends that the following obviousness
`combinations render the asserted claims of the Asserted Patents invalid:
`• The ’832 Patent:
`o Claim 1:
` Branch in view of International Patent Publication No. WO
`01/37728 (“Kelleher”)
` Branch in view of W.A. Friedman and S.L. Kanter, The lateral
`percutaneous approach to discectomy, Int’l Radiology in Bone
`and Joint 149 (1988) (“Friedman”)
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`PRETRIAL ORDER
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` Branch in view of Friedman and Kelleher
` Branch in view of Friedman and Kelleher further in view of
`European Patent No. 0951868 (“Büttner-Janz”) and U.S. Patent
`No. 5,681,265 (“Maeda”)
` Branch in view of Friedman and Kelleher further in view of
`Büttner-Janz and Maeda
`o Claim 3:
` The combinations disclosed for claim 1
`o Claim 9:
` The combinations disclosed for claim 1
` The combinations disclosed for claim 1, further in view of U.S.
`Patent No. 5,928,139 (“Koros ’139”)
`o Claim 10:
` The combinations disclosed for claim 1, further in view of Koros
`’139
` The combinations disclosed for claim 1, further in view of U.S.
`Patent No. 6,174,311 (“Branch ’311”)
`• The ’801 Patent:
`o Claim 1:
` Branch in view of Branch ’311
` Branch in view of Branch ’311 further in view of Friedman
` Branch in view of Branch ’311 and Koros ’139] further in view
`of Büttner-Janz and Maeda further in view of Friedman
`o Claim 2:
` The combinations disclosed for claim 1
`o Claim 15:
` Branch in view of Branch ’311 further in view of Friedman
` Branch in view of Branch ’311 and Koros ’139 further in view
`of Büttner-Janz and Maeda further in view of Friedman further
`in view of Kelleher
`o Claim 16:
` The combinations disclosed for claim 15
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`PRETRIAL ORDER
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`o Claim 26:
` Branch in view of Branch ’311 further in view of U.S. Patent No.
`6,575,899 (“Foley ’899”)
` Branch in view of Branch ’311 further in view of Foley ’899
`further in view of Friedman
` Branch in view of Branch ’311 and Koros ’139 and Foley ’899
`further in view of Büttner-Janz and Maeda further in view of
`Friedman
`• The ’531 Patent:
`o Claim 1:
` Branch
` Branch in view of Büttner-Janz and Maeda and Friedman
` Branch in view of U.S. Patent No. 6,074,343 (“Nathanson”)
` Branch in view of Nathanson further in view of Büttner-Janz and
`Maeda and Friedman
`o Claim 39:
` The combinations disclosed for claim 1
`11. Alphatec reserves the right to rely on fewer references for each Asserted
`Patent to the extent NuVasive does not dispute that certain limitations are disclosed
`in the references identified herein.
`12. Alphatec reserves the right to present testimony about the above prior
`art references and combinations, as well as state of the art at the relevant time for the
`’832 Patent, ’801 Patent, and ’531 Patent.
`13. Alphatec’s Answer also originally alleged and asserted several
`affirmative defenses and counterclaims that Alphatec contends are either moot based
`on NuVasive’s Final Disclosure of Claims to be Asserted at Trial [Doc. No. 356] or
`have been bifurcated for a bench trial [Court’s 9/3/21 Notes for Scheduling
`Conference]. Alphatec reserves all rights as to these affirmative defenses and
`counterclaims:
`• Fourth Affirmative Defense: NuVasive’s claims are barred, in whole or in
`part, by the doctrine of implied waiver.
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`PRETRIAL ORDER
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`• Fifth Affirmative Defense: NuVasive’s claims are barred, in whole or in part,
`by the doctrine of equitable estoppel.
`• Sixth Affirmative Defense: NuVasive’s claims are barred, in whole or in
`part, by the doctrine of unclean hands.
`14. As set forth in Alphatec’s Answer, Alphatec denies that NuVasive is
`entitled to relief it identifies in its Operative Complaint or any other relief, including
`any damages or equitable relief. Further, Alphatec seeks the following relief:
`• Declaring that the asserted claims of the Asserted Patents are invalid;
`• Declaring that Alphatec does not infringe the asserted claims of the ’801
`Patent and ’531 Patent;
`• Awarding Alphatec its costs and reasonable attorneys’ fees for this litigation
`in accordance with 35 U.S.C. § 285”; and
`• Awarding Alphatec any further relief that the Court deems just and proper.
`III. WITNESSES
`15. NuVasive’s witness list is attached hereto as Exhibit 1.
`16. Alphatec’s witness list is attached hereto as Exhibit 2.
`17. Any witness not listed on each party’s witness list is precluded from
`testifying, absent good cause shown, which will include but is not limited to
`establishing the authenticity or admissibility of an exhibit that is challenged by the
`opposing party.
`18. The listing of a witness on a party’s witness list does not require that
`party to call that witness to testify, either live or by deposition. However, either
`party may call at trial any witness appearing on the other party’s trial witness list.
`To the extent that a witness’s circumstances change, or a witness otherwise becomes
`unavailable for trial, each party reserves the right to call that witness by deposition,
`as set forth below in this Pretrial Order.
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`PRETRIAL ORDER
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`IV. EXHIBITS
`A. Trial Exhibits
`19. NuVasive’s list of exhibits that it may offer at trial, and Alphatec’s
`objections to NuVasive’s exhibits, are attached as Exhibit 3. A key to the objection
`codes is appended at the end of the exhibit.
`20. Alphatec’s list of exhibits that it may offer at trial, and NuVasive’s
`objections to Alphatec’s exhibits, are attached as Exhibit 4. A key to the objection
`codes is appended at the end of the exhibit.
`21. NuVasive’s trial exhibits will be identified with the PTX prefix, starting
`with PTX-1. Alphatec’s trial exhibits will be identified with the DTX prefix, starting
`with DTX-1. Joint trial exhibits, including physical trial exhibits, will be identified
`with JTX numbers, starting with JTX-1.
`22. The Exhibit Lists attached to this order are substantially complete.
`Neither party will remove a document once it has been added to the party’s exhibit
`list without agreement from the other party, unless it provides the other party the
`opportunity to add the document to its exhibit list. Any further edits to the parties’
`respective exhibit lists shall be made promptly upon discovering any deficiency and
`disclosed to the opposing party.
`23. The parties agree that exhibits to be used solely for impeachment need
`not be included on the lists of trial exhibits or disclosed in advance of being used at
`trial.
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`24. Exhibits not objected to may be introduced into evidence by the
`identifying party through any witness competent to testify regarding the exhibit,
`without the need for additional foundation testimony, provided, however, that an
`expert may not introduce any exhibit that was not relied upon in any of that expert’s
`respective report(s) submitted pursuant to Fed. R. Civ. P. 26(a)(2)(B) with the
`exception of different versions of an exhibit (e.g., more legible copies of the same
`document).”
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`PRETRIAL ORDER
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`25. Nothing herein shall be construed as a stipulation or admission that the
`document is entitled to any weight in deciding the merits of this case. The parties
`agree that any description of a document on an exhibit list is provided for
`convenience only and shall not be used as an admission or otherwise as evidence
`regarding the listed document or any other listed document.
`26. The parties stipulate to the authenticity of all exhibits, except where
`specifically indicated with an objection noted, and subject to the right of the party
`against whom the exhibit is introduced to adduce evidence to the contrary. Any
`objection to a document’s authenticity must be made in this Pretrial Order and must
`be established according to the Federal Rules of Evidence.
`27. Any party may use an exhibit that is listed on the other party’s exhibit
`list, to the same effect as though it were listed on its own exhibit list, subject to all
`evidentiary objections. Any exhibit, once admitted, may be used equally by each
`party, subject to any limitations as to its admission. The listing of a document on a
`party’s exhibit list is not an admission that such document is relevant, or admissible,
`when offered by the opposing side for the purpose that the opposing side wishes to
`admit the document. Each party reserves the right to object to the relevance of any
`evidence offered by the other party, at the time such evidence is offered, in view of
`the specific context in which such evidence is offered.
`28. A party’s failure to introduce any exhibit appearing on its list shall not
`be commented on during trial. Either party may reference the fact that the other
`party did not introduce evidence of any fact, provided that the party does not refer
`to the other party’s exhibit list.
`29. The parties shall make available for inspection physical exhibits to be
`used at trial, labeled with an exhibit number.
`
`PRETRIAL ORDER
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`B. Demonstrative Exhibits
`30. NuVasive’s demonstratives will be identified with PDX numbers,
`starting with PDX-1. Alphatec’s demonstratives will be identified with DDX
`numbers, starting with DDX-1.
`31. The parties agree that the demonstrative exhibits that the parties intend
`to use at trial do not need to be included on their respective exhibit lists that are part
`of this Pretrial Order.
`32. The party seeking to use a demonstrative in direct examination only
`will provide a color representation of the demonstrative to the other side. However,
`for video or animations, the party seeking to use the demonstrative will provide it to
`the other side electronically. For irregularly sized physical exhibits, the party
`seeking to use the demonstrative will provide a color representation of the exhibits.
`The parties need not provide any demonstrative for use in cross examination to the
`other side.
`33. Demonstratives created during testimony or demonstratives to be used
`for cross-examination do not need to be provided to the other side in advance of their
`use. In addition, blow-ups, highlighting of exhibits or parts of exhibits or testimony
`are not required to be provided to the other side in advance of their use as long as
`the party has identified its intent to use the trial exhibit and/or deposition testimony
`according to the provisions of this Pretrial Order.
`34. Closing demonstratives will not be exchanged prior to presentation to
`the jury.
`V. DEPOSITION DESIGNATIONS
`35. The parties may offer some or all of the deposition testimony set forth
`herein at trial.
`36. NuVasive’s list of deposition designations by page and line is attached
`as Exhibit 5.
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`PRETRIAL ORDER
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`37. Alphatec’s list of deposition designations by page and line is attached
`as Exhibit 6.
`38. This Pretrial Order contains the substantially complete universe of
`deposition designations, counter-designations, and objections to admission of
`deposition testimony. Any further edits to the parties’ respective designations shall
`be made promptly upon discovering any deficiency and disclosed to the opposing
`party.
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`39. Any party may use testimony that is designated by another party, to the
`same effect as if it had initially designated or cross-designated the testimony as its
`own, subject to all objections.
`40. With respect to those witnesses who are expected to testify by
`deposition rather than in person, each party has designated the specific pages and
`lines of deposition testimony of the other side’s fact witnesses that it may play during
`trial should that fact witness be unavailable to testify live.
`41. The designations and counter-designations will be played by video in
`chronological order. The time available for each party’s trial presentation shall be
`reduced by the length of its designations and counter-designations, respectively.
`If an exhibit is referenced in a deposition designation, the exhibit is
`42.
`admitted into evidence if it is included on the offering party’s trial exhibit list and is
`not otherwise objected to or is included on the joint trial exhibit list.
`43. All irrelevant and redundant material such as objections and colloquy
`between counsel will be eliminated when the deposition is viewed at trial.
`44. Any deposition testimony may be used at trial for the purpose of
`impeachment, regardless of whether a party identified that testimony on its list of
`deposition designations, if the testimony is otherwise competent for such purpose.
`45. The party offering the testimony is responsible for preparing video
`deposition clips of all designated testimony for that witness.
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`PRETRIAL ORDER
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` When the witness is called to testify by deposition at trial, the party
`46.
`calling the witness shall provide the Court with two copies of the transcript of the
`designations and counter-designations that will be read or played.
`47. Prior to calling a witness to testify by deposition at trial, the party
`calling the witness will introduce the witness with a brief statement identifying the
`witness’s name, title, and employer. The statement is to be agreed-upon by the
`parties.
`VI. TRIAL DISCLOSURE SCHEDULE
`48. The following procedures shall apply to the identification of witnesses,
`exhibits, and demonstratives to be used at trial and the process to identify any
`objections remaining between the parties with regard to these disclosed items:
`a) Case-in-Chief Witnesses:
`i) By 6:00 p.m. local time seven calendar days before the beginning of
`trial, NuVasive shall provide a list of those witnesses it intends to call in
`person in its case-in-chief.
`ii) By 6:00 p.m. local time five calendar days before the beginning of trial,
`Alphatec shall provide a list of those witnesses it intends to call in person
`in its case-in-chief.
`iii) By 6:00 p.m. local time two calendar days before the beginning of trial,
`each party must notify the opposing party of the identity of its corporate
`representative.
`b) Opening Statement Exhibits and Demonstratives:
`i) A party will identify and provide trial exhibits and demonstrative exhibits
`to be used in connection with opening statements by 2:00 p.m. local time
`January 6, 2022, and objections will be provided no later than by 4:00
`p.m. local time that same day. The parties will meet and confer on any
`objections by 5:00 p.m. local time that same day and will present any
`unresolved issued to the Court on January 7, 2022.
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`PRETRIAL ORDER
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`c) Direct Examination Witnesses and Exhibits:
`i) At 6:00 p.m. local time two calendar days before each day of trial, each
`party will exchange and provide the Court the following for that trial day
`via electronic mail:
`(1) A list of witnesses (fact and expert) that it intends to call for direct
`examination, in the order that it intends to call them (whether live or by
`deposition).
`(2) A list of each trial exhibit for each witness it intends to present during
`direct examination.
`ii) Any objections by the opposing party will be provided no later than 7:30
`p.m. local time the following day.
`iii) The parties shall meet and confer by 8:30 p.m. local time that same day
`to resolve any objections. If good faith efforts to resolve the objections
`fail, the party objecting to the exhibits shall bring its objections to the
`Court’s attention prior to the witness being called to the witness stand.
`d) Direct Examination Demonstratives:
`i) By 6:00 p.m. local time one calendar day before their intended use at
`trial, a party shall provide demonstrative exhibits to be used in connection
`with a direct examination.
`ii) Objections to any such demonstrative exhibits shall be made by 7:30 p.m.
`local time that same day.
`iii) The parties will meet and confer on any objections by 8:30 p.m. local time
`that same day and will present any unresolved issued to the Court prior to
`the witness being called to the witness stand.
`e) Deposition Designations:
`i) By 6:00 p.m. local time three calendar days before their intended use
`at trial, each party will exchange the following for that trial day via
`electronic mail:
`
`PRETRIAL ORDER
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`(1) A list of the deposition testimony and deposition exhibits it intends to
`introduce (either by video or through a reading of the transcript) and
`any trial exhibits it intends to introduce for the first time through such
`deposition testimony.
`ii) By 6:00 p.m. local time two calendar days before their intended use at
`trial, each party will exchange the following for that trial day via electronic
`mail:
`(1) Identification of deposition counter-designations and exhibits to be
`included when the other party introduces its identified deposition
`testimony.
`iii) By 7:30 p.m. local time the same day (two calendar days before
`intended use), each party will exchange objections to any deposition
`testimony and deposition exhibits disclosed.
`iv) By 8:30 p.m. local time the same day (two calendar days before
`intended use), the parties shall meet and confer regarding objections to
`any deposition testimony (including counter designations) and deposition
`exhibits disclosed. If good faith efforts to resolve the objections fail, the
`party objecting shall bring its objections to the Court’s attention the next
`day before the jury is convened for trial.
`v) By 6:00 p.m. local time one calendar day before their intended use at
`trial, each party will exchange the following for that trial day