Case 3:21-cv-00812-GPC-JLB Document 34 Filed 08/10/21 PageID.225 Page 1 of 8
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`TACTION TECHNOLOGY, INC.,
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`v.
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`APPLE INC.,
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`Plaintiff,
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`Defendant.
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` Case No.: 21-cv-00812-GPC-JLB
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`CASE MANAGEMENT ORDER
`REGULATING DISCOVERY AND
`OTHER PRETRIAL PROCEEDINGS
`IN A PATENT CASE
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`AND RELATED COUNTERCLAIMS.
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`Pursuant to Rule 2.1 of the Patent Local Rules, a Case Management Conference was
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`held on August 9, 2021. (ECF No. 33.) After consulting with the attorneys of record for
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`the parties and being advised of the status of the case, and good cause appearing, IT IS
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`HEREBY ORDERED:
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`1.
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`The Court understands that parties to litigation often enter into stipulations
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`that a trade secret or other confidential research, development, or commercial information
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`not be revealed or be revealed only in specified way. Any motion for a protective order
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`entering such stipulation(s) in this case shall be filed as a joint motion no later than
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`September 3, 2021, and comply with § VI of Magistrate Judge Jill L. Burkhardt’s Civil
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`///
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`///
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`Case 3:21-cv-00812-GPC-JLB Document 34 Filed 08/10/21 PageID.226 Page 2 of 8
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`Chambers Rules. The parties may use Judge Burkhardt’s model protective order, which is
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`available on the Court’s website under her Chambers Rules.1
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`If the need for a protective order is not initially apparent to the parties and only
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`becomes apparent due to a later development in the case, the parties must seek leave to file
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`a late motion for protective order. Any such motion shall be supported by good cause,
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`which includes an explanation as to why the parties could not have anticipated the need for
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`a protective order.
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`2.
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`On or before August 23, 2021, each party claiming patent infringement shall
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`separately serve on all parties a Disclosure of Asserted Claims and Preliminary
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`Infringement pursuant to Patent LR 3.1 and produce documents as required by Patent LR
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`3.2.
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`3.
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`On or before October 22, 2021, each party opposing a claim of infringement
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`shall serve Invalidity Contentions pursuant to Patent LR 3.3 and produce documents as
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`required by Patent LR 3.4.
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`4.
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`On or before November 5, 2021, the parties shall exchange Preliminary Claim
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`Constructions pursuant to Patent LR 4.1(a) and identify extrinsic evidence as required by
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`Patent LR 4.1(b).
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`5.
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`On or before November 19, 2021, the parties shall exchange Responsive
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`Claim Constructions pursuant to Patent LR 4.1(c) and identify extrinsic evidence as
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`required by Patent LR 4.1(d).
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`6.
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`On or before December 3, 2021, parties shall complete and file a Joint Claim
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`Construction Chart, Joint Claim Construction Worksheet, and Joint Hearing Statement
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`pursuant to Patent LR 4.2.
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`https://www.casd.uscourts.gov/Judges/burkhardt/docs/Burkhardt%20Model%20Pr
`otective%20Order.docx
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`Case 3:21-cv-00812-GPC-JLB Document 34 Filed 08/10/21 PageID.227 Page 3 of 8
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`7.
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`The deadline for filing, as of right, Amended Infringement Contentions by a
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`party claiming infringement is December 3, 2021. See Patent LR 3.6(a).
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`8.
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`All discovery intended for use in the Claim Construction Hearing must be
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`completed by January 7, 2022. See Patent LR 4.3.
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`9.
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`The deadline for filing, as of right, Amended Invalidity Contentions by the
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`party opposing infringement is January 7, 2022. See Patent LR 3.6(b).
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`10. On or before January 21, 2022, the parties must file simultaneously their
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`Opening Claim Construction Briefs. See Patent LR 4.4(a).
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`11. On or before February 4, 2022, the parties must file simultaneously their
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`Responsive Claim Construction Briefs. See Patent LR 4.4(b).
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`12. The Claim Construction and Tutorial Hearing will be held February 18,
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`2022, at 1:30 PM before the Honorable Gonzalo P. Curiel. See Patent LR 4.5.
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`13. Not later than thirty (30) days after the filing of the Claim Construction Order,
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`any party relying upon advice of counsel as part of a patent-related claim or defense for
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`any reason must make the disclosures required by Patent LR 3.7
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`14. A party asserting infringement must serve final amended infringement
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`contentions, within the meaning of Patent LR 3.6(a)(1), not later than thirty (30) days after
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`service of the Court’s Claim Construction Ruling.
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`15. A party opposing a claim of infringement must serve final amended invalidity
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`contentions, within the meaning of Patent LR 3.6(b)(2), not later than fifty (50) days after
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`service of the Court’s Claim Construction ruling.
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`16. The initial date for the substantial completion of document discovery
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`including electronically stored information (“ESI”) is April 29, 2022. See Patent LR
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`2.1(a)(1).
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`17. All fact discovery shall be completed by all parties on or before July 29, 2022.
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`All expert discovery shall be completed by all parties on or before September 30, 2022.
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`“Completed” means that interrogatories, requests for production, and other discovery
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`requests must be served at least thirty (30) days prior to the established cutoff date so that
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`Case 3:21-cv-00812-GPC-JLB Document 34 Filed 08/10/21 PageID.228 Page 4 of 8
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`response thereto will be due on or before the cutoff date. All subpoenas issued for
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`discovery must be returnable on or before the discovery cutoff date. Counsel are required
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`to meet and confer regarding all discovery disputes pursuant to the requirements of Local
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`Rule 26.1(a).
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`Discovery disputes must be brought to the Court’s attention in the time and manner
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`required by § V of Judge Burkhardt’s Civil Chambers Rules. All discovery disputes must
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`be raised within 30 calendar days of the service of an objection, answer, or response
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`that becomes the subject of dispute, or the passage of a discovery due date without response
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`or production, and only after counsel (and any unrepresented parties) have met and
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`conferred to resolve the dispute. See J. Burkhardt Civ. Chambers R. § V.
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`18. All expert disclosures required by Fed. R. Civ. P. 26(a)(2) shall be served on
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`all parties on or before August 5, 2022. Any contradictory or rebuttal disclosures within
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`the meaning of Rule 26(a)(2)(D)(ii) shall be disclosed on or before September 2, 2022.
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`Unless otherwise stipulated by the parties, the required expert disclosures shall include an
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`expert report as required by Rule 26(a)(2)(B). If a written report is not required, the
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`disclosure must provide the information required under Rule 26(a)(2)(c).
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`19. All other dispositive motions, including those addressing Daubert issues, shall
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`be filed on or before October 14, 2022. Please be advised that counsel for the moving
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`party must obtain a motion hearing date from the law clerk of the judge who will hear the
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`motion. Failure of counsel to timely request a motion date may result in the motion not
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`being heard. Motions in Limine are to be filed as directed in the Local Rules, or as
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`otherwise set by the Honorable Gonzalo P. Curiel.
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`20. Briefs or memoranda in support of or in opposition to any pending motion
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`shall not exceed twenty-five (25) pages in length without permission of the judge or
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`magistrate judge who will hear the motion. No reply memorandum shall exceed ten (10)
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`pages without leave of the judge or magistrate judge who will hear the motion.
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`///
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`Case 3:21-cv-00812-GPC-JLB Document 34 Filed 08/10/21 PageID.229 Page 5 of 8
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`21. A Mandatory Settlement Conference shall be conducted on March 16, 2022,
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`at 1:45 PM, in the chambers of Magistrate Judge Jill L. Burkhardt, Edward J. Schwartz
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`U.S. Courthouse, 221 West Broadway, Suite 5140, San Diego, California 92101.
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`Pursuant to Civil Local Rule 16.3, all party representatives and claims adjusters for
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`insured defendants with full and unlimited authority2 to negotiate and enter into a binding
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`settlement, as well as the principal attorney(s) responsible for the litigation, must be present
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`and legally and factually prepared to discuss and resolve the case at the MSC. In the case
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`of an entity, an authorized representative of the entity who is not retained outside counsel
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`must be present and must have discretionary authority to commit the entity to pay an
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`amount up to the amount of the Plaintiff’s prayer (excluding punitive damages prayers).
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`The purpose of this requirement is to have representatives present who can settle the case
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`during the course of the conference without consulting a superior.
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`Failure to attend the MSC or obtain proper excuse will be considered grounds
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`for sanctions.
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`22. No later than 21 days before the MSC, the parties shall exchange formal
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`settlement proposals, as required by § III.A. of Judge Burkhardt’s Civil Chambers Rules.
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`No later than 14 days before the MSC, the parties shall meet and confer in person or
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`telephonically, as required by § III.B. of Judge Burkhardt’s Civil Chambers Rules.
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`23. No later than March 7, 2022, counsel (and any unrepresented parties) shall
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`lodge confidential MSC statements with Judge Burkhardt’s chambers via e-mail at
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`“Full authority to settle” means that the individuals at the settlement conference must
`be authorized to fully explore settlement options and to agree at that time to any settlement
`terms acceptable to the parties. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d
`648 (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 includes 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. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595–97 (8th Cir. 2001).
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`Case 3:21-cv-00812-GPC-JLB Document 34 Filed 08/10/21 PageID.230 Page 6 of 8
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`efile_Burkhardt@casd.uscourts.gov. The parties’ MSC statements shall comply with §
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`III.C. of Judge Burkhardt’s Civil Chambers Rules.
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`24. Parties are excused from the requirement of Local Rule 16.1(f)(2)(a); no
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`Memoranda of Law or Contentions of Fact are to be filed.
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`25. All parties or their counsel shall fully comply with the Pretrial Disclosure
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`requirements of Fed. R. Civ. P. 26(a)(3) on or before January 20, 2023. Failure to comply
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`with these disclosures requirements could result in evidence preclusion or other sanctions
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`under Fed. R. Civ. P. 37.
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`26. Pursuant to Local Civil Rule 16.1(f)(4), on or before January 27, 2023, the
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`parties shall meet and confer to comply with the provisions of that section and prepare a
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`proposed pretrial order in accordance with Local Rule 16.1(f)(6)(c), and containing the
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`following:
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`a.
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`A joint neutral statement to be read to the jury, not in excess of one
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`page, of the nature of the case and the claims and defenses.
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`b.
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`A list of the causes of action to be tried, referenced to the Complaint
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`and Counterclaim. For each cause of action, the order shall succinctly list the
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`elements of the claim, damages and any defenses. A cause of action in the Complaint
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`or Counterclaim which is not listed shall be dismissed with prejudice.
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`c.
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`A list, in alphabetical order, of:
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`i.
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`Each witness counsel actually expect to call at trial with a brief
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`statement, not exceeding four sentences, of the substance of the witnesses’
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`testimony.
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`ii.
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`Each expert witness counsel actually expect to call at trial with a
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`brief statement, not exceeding four sentences, of the substance of the expert
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`witnesses’ testimony.
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`iii. Additional witnesses, including experts, counsel do not expect to
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`call at this time but reserve the right to call at trial along with a brief statement,
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`not exceeding four sentences, of the substance of the witnesses’ testimony.
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`Case 3:21-cv-00812-GPC-JLB Document 34 Filed 08/10/21 PageID.231 Page 7 of 8
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`d.
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`A list of:
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`i.
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`All exhibits that counsel actually expect to offer at trial with a
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`one-sentence description of the exhibit. All exhibits are to be identified
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`numerically, plaintiff starting with “1” and defendant beginning with an
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`agreed upon numerical designation.
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`ii.
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`All other exhibits that counsel do not expect to offer at this time
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`but reserve the right to offer if necessary at trial with a one-sentence
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`description of the exhibit.
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`e.
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`A statement of all facts to which the parties stipulate. This statement
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`shall be on a separate page and will be read to and provided to the jury.
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`f.
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`A list of all deposition transcripts by page and line, or videotape
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`depositions by section, that will be offered at trial.
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`g.
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`Counsel will note any objections they have to any other parties’ Fed. R.
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`Civ. P. 26 (a)(3) Pretrial Disclosures.
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`The Court encourages the parties to consult with the assigned magistrate judge to
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`work out any problems in preparation of the proposed pretrial order. The Honorable
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`Gonzalo P. Curiel will entertain any questions concerning the conduct of the trial at the
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`pretrial conference.
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`27. Counsel for plaintiff will be responsible for preparing the pretrial order and
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`arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f)(6)(a). On or before
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`February 3, 2023, plaintiff’s counsel must provide opposing counsel with the proposed
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`pretrial order for review and approval. Opposing counsel must communicate promptly
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`with plaintiff’s attorney concerning any objections to form or content of the pretrial order,
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`and both parties should attempt promptly to resolve their differences, if any, concerning
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`28. The proposed final pretrial conference order, including objections counsel
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`have to any other party’s Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared,
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`served and lodged with the Honorable Gonzalo P. Curiel chambers on or before
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`February 10, 2023, and shall be in the form prescribed in and in compliance with Local
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`Rule 16.1(f)(6)(c). Counsel shall also bring a court copy of the pretrial order to the pretrial
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`conference.
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`29. The final pretrial conference shall be held before the Honorable Gonzalo P.
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`Curiel on February 17, 2023, at 1:30 PM, during which time the Court will address the
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`submission of motions in limine, trial briefs, proposed voir dire and jury instructions and
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`the trial schedule.
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`30. The dates and times set forth herein will not be modified except for good cause
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`shown.
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`31. Plaintiff’s counsel shall serve a copy of this order on all parties that enter this
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`case hereafter.
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`IT IS SO ORDERED.
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`Dated: August 10, 2021
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