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`Civil Action No.: 17-cv-02097-RBJ
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`REALTIME ADAPTIVE STREAMING LLC,
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`v.
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`SLING TV L.L.C.,
`SLING MEDIA, L.L.C.,
`DISH NETWORK L.L.C.,
`DISH TECHNOLOGIES L.L.C. AND
`ARRIS GROUP, INC.,
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`Plaintiff,
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`Defendants.
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`[PROPOSED] SCHEDULING ORDER
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`1.
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`DATE OF CONFERENCE AND APPEARANCES
`OF COUNSEL AND PRO SE PARTIES
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`The Scheduling Conference pursuant to Fed. R. Civ. P. 16(b) is scheduled for
`March 7, 2018 at 8:30 a.m. before the Honorable R. Brooke Jackson, to be conducted
`telephonically.
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`The parties are represented by following counsel.
`
`Attorneys for Plaintiff Realtime Adaptive Streaming LLC:
`Reza Mirzaie (rmirzaie@raklaw.com)
`Jay Chung (jchung@raklaw.com)
`Philip X. Wang (pwang@raklaw.com)
`Marc Aaron Fenster (mfenster@raklaw.com)
`Brian Ledahl (bledahl@raklaw.com)
`Timothy T. Hsieh (thsieh@raklaw.com)
`Russ August & Kabat
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, CA 90025
`Phone: 310-826-7474
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`Eric B. Fenster (CO Atty Reg # 33264)
`ERIC B. FENSTER, LLC
`1522 Blake Street, Suite 200
`Denver, CO 80202
`(303) 921-3530
`Eric@fensterlaw.net
`
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`Attorneys for DISH Network L.L.C., Sling TV L.L.C., Sling Media,
`L.L.C., and DISH Technologies L.L.C.
`Ruffin Cordell (RBC@fr.com)
`Adam Shartzer (shartzer@fr.com)
`Brian Livedalen (Livedalen@fr.com)
`
`FISH & RICHARDSON P.C.
`901 15th St. N.W., 7th Fl.
`Washington, DC 20005-3500
`PH: 202-783-5070
`FX: 202-783-2331
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`Attorney for ARRIS Group, Inc.
`Noah Graubart (graubart@fr.com)
`
`FISH & RICHARDSON P.C.
`1180 Peachtree St. NE, 21st Floor
`Atlanta, GA 30309
`Tel: (404) 892-5005
`Fax: (404) 892-5002
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`2.
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`STATEMENT OF JURISDICTION
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`This is a patent infringement action arising under the Patent Act, which gives rise
`to this Court’s jurisdiction pursuant to 28 U.S.C. §§ 1331, 1338(a).
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`STATEMENT OF CLAIMS AND DEFENSES
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`3.
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` Plaintiff’s Statement: Plaintiff Realtime Adaptive Streaming LLC hereby
`a.
`summarizes its claims, without waiving any rights to add additional claims or pursue
`additional remedies. This is a patent infringement action involving U.S. Patent Nos.
`8,867,610 (“the ’610 patent”) and 8,934,535 (“the ’535 patent”). By way of assignment,
`Plaintiff is the owner of all right, title and interest in and to the ’610 and ’535 patents,
`with all rights to enforce them against infringers and to collect damages for all relevant
`times, including the right to prosecute this action.
`Plaintiff asserts that Defendants have directly and/or indirectly infringed, either
`literally and/or under the doctrine of equivalents, the ’610 patent and the ’535 patent,
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`via, e.g., making, using offering to sell, selling, and/or importing into the United States
`infringing products (e.g., streaming video products and services of Defendants).
`Plaintiff also seeks damages, costs, expenses, and prejudgment and post-
`judgment interest for Defendants’ infringement of the ’610 patent and the ’535 patent, as
`provided under 35 U.S.C. § 284, as well as 35 U.S.C. § 285 as appropriate. Plaintiff
`also seek for Defendants to provide an accounting and to pay supplemental damages to
`Plaintiff, including without limitation, prejudgment and post-judgment interest. Additional
`allegations are set forth in Plaintiff’s amended complaint (Dkt. No. 32), which are
`incorporated herein by reference.
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`Defendants’ Statement: Defendants deny Plaintiff’s allegations of infringement.
`b.
`The asserted patents are invalid at least under 35 U.S.C. §§ 101, 102, 103, and 112.
`Defendants DISH Network L.L.C., DISH Technologies L.L.C., and ARRIS Group, Inc.
`already filed a motion to dismiss Plaintiff’s complaint for a failure to state a claim under
`Fed. R. Civ. P. 12(b)(6) because the asserted patents claims are not directed to
`patentable subject matter under Section 101 of the Patent Act. See Dkt. No.47.
`Similarly, defendants Sling TV, L.L.C. and Sling Media, L.L.C. moved for judgment on
`the pleadings that the asserted patents are directed to ineligible subject matter under
`Section 101 of the Patent Act. See Dkt. No. 48. Defendants Sling TV, L.L.C. and Sling
`Media, L.L.C. also filed counterclaims for declaratory judgement of non-infringement
`and invalidity of the Asserted Patents.
`
`To the extent the asserted patents’ claims are not invalid, Plaintiff’s claims are
`barred, in whole or in part, by the doctrines of equitable estoppel, laches, waiver, and/or
`implied license and/or by the other affirmative defenses raised in defendants Sling TV,
`L.L.C. and Sling Media, L.L.C.’s Answer (Dkt. No. 42)
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`Defendants also assert that Plaintiff’s claims constitute an exceptional case
`under 35 U.S.C. § 285 and accordingly request that the Court award Defendants costs
`and reasonable attorney’s fees.
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`4.
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`UNDISPUTED FACTS The following facts are undisputed:
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`1. The Court has subject matter jurisdiction over any civil action arising under
`any Act of Congress relating to patents.
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`5.
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`a.
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`b.
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`c.
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`d.
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`COMPUTATION OF DAMAGES
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`Plaintiff seeks damages adequate to compensate it for Defendants’ infringement,
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`including under 35 U.S.C. § 283, 284 and 285, and at least a reasonable royalty.
`Discovery has yet to be taken, which would allow additional information regarding
`computation of damages.
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`Defendants deny that Realtime is entitled to any damages in this case.
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`Defendants also assert that any damages are limited by 35 U.S. Code § 287.
`Defendants reserve the right to seek costs and reasonable attorney fees to be
`determined at a later time as evidence is produced during the discovery process in
`accordance with the Federal Rules of Civil Procedure and the Local and Patent Rules of
`the venue where this matter ultimately proceeds.
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`6.
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`REPORT OF PRECONFERENCE DISCOVERY
`AND MEETING UNDER FED. R. CIV. P. 26(f)
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`Date of Rule 26(f) meeting: Feb. 12, 2018.
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`Names of each participant and party he/she represented.
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`Attorney for Plaintiff Realtime Adaptive Streaming LLC:
`Reza Mirzaie
`Jay Chung
`
`Attorney for Defendants:
`Ruffin Cordell (RBC@fr.com)
`Adam Shartzer (shartzer@fr.com)
`Brian Livedalen (Livedalen@fr.com)
`Noah Graubart (graubart@fr.com)
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`Statement as to when Rule 26(a)(1) disclosures were made or will be made.
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`March 8, 2018
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`Statement concerning any agreements to conduct informal discovery:
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`Parties have not agreed to conduct informal discovery, but will remain open to
`consider that possibility.
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`e.
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`Statement concerning any other agreements or procedures to reduce discovery
`and other litigation costs, including the use of a unified exhibit numbering system:
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`The parties consent to electronic service pursuant to Fed. R. Civ. P. 5(b)(2)(E).
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`f.
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`Statement as to whether the parties anticipate that their claims or defenses will
`involve extensive electronically stored information, or that a substantial amount of
`disclosure or discovery will involve information or records maintained in
`electronic form.
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`The parties anticipate that their claims or defenses will involve some discovery of
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`electronically stored information “ESI". The parties have discussed details relating to
`ESI, and reached the following agreements:
`
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`This order’s provisions regarding ESI supplements all other discovery
`rules and orders. It streamlines ESI production to promote a “just, speedy,
`and inexpensive determination” of this action, as required by Federal Rule
`of Civil Procedure 1.
`This order’s provisions regarding ESI may be modified in the court’s
`discretion or by agreement of the parties.
`A party’s meaningful compliance with this Order’s provisions regarding
`ESI and efforts to promote efficiency and reduce costs will be considered
`in cost-shifting determinations.
`The following metadata fields shall generally be included in ESI
`productions if such fields exist: author, custodian, date created, date last
`modified, date sent, date received, sender, recipient(s), and an MD5 or
`SHA-256 hash value for each document. The Parties are not obligated to
`produce metadata for any document that does not contain such metadata
`in the native version of the document at the time the document is
`collected.
`Absent agreement of the parties or further order of this court, the following
`parameters shall apply to ESI production:
`General Document Image Format. Each electronic document
`A.
`shall be produced in single-page Tagged Image File Format
`(“TIFF”) format except where document production in TIFF would
`be impractical (including, for example, large spreadsheets). TIFF
`files shall be single page and shall be named with a unique
`production number followed by the appropriate file extension. Load
`files shall be provided to indicate the location and unitization of the
`TIFF files. If a document is more than one page, the unitization of
`the document and any attachments and/or affixed notes shall be
`maintained as they existed in the original document. All documents
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`2.
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`3.
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`4.
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`5.
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`B.
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`C.
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`D.
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`E.
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`F.
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`that are hardcopy or paper file shall be scanned and produced in
`the same manner as documents existing in electronic format.
`Text-Searchable Documents. No party has an obligation to make
`its production text-searchable; however, if a party’s documents
`already exist in text-searchable format independent of this litigation,
`or are converted to text-searchable format for use in this litigation,
`including for use by the Producing Party’s counsel, then such
`documents shall be produced in the same text-searchable format at
`no cost to the Receiving Party.
`Footer. Each document image shall contain a footer with a
`sequentially ascending production number.
`Native Files. If any electronic document that is not in native format
`is not reasonably usable or intelligible due to the production format,
`the Producing Party shall produce such documents in its native
`format.
`No Backup Restoration Required. To the extent a party maintains
`back up data, no party need restore any form of media upon which
`such backup data is maintained in a party’s normal or allowed
`processes, including but not limited to backup tapes, disks, SAN,
`and other forms of media, to comply with its discovery obligations in
`the present case absent a showing of good cause.
`Voicemail and Mobile Devices. Absent a showing of good cause,
`voice-mails, PDAs and mobile phones are deemed not reasonably
`accessible and need not be collected and preserved.
`General ESI production requests under Federal Rules of Civil Procedure
`34 and 45, or compliance with a mandatory disclosure order of this court,
`shall not include e-mail or other forms of electronic correspondence
`(collectively “e-mail”). The parties shall not be required to collect or
`produce e-mail in response to a discovery request absent a showing of
`good cause.
`Pursuant to Federal Rule of Evidence 502(d), the inadvertent production
`of a privileged or work product protected ESI is not a waiver in the pending
`case or in any other federal or state proceeding.
`The mere production of ESI in a litigation as part of a mass production
`shall not itself constitute a waiver for any purpose.
`Except as expressly stated, nothing in this order affects the parties’
`discovery obligations under the Federal or Local Rules.
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`6.
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`7.
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`8.
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`9.
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`Statement summarizing the parties' discussions regarding the possibilities for
`promptly settling or resolving the case.
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`g.
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`The parties agree to have ongoing discussions in an effort to resolve the case.
`However, to date, there have been no settlement discussions.
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`7.
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`CONSENT
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`b.
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`c.
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`All of the parties have not consented to the exercise of jurisdiction of a magistrate
`judge.
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`8.
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`CASE PLAN AND SCHEDULE
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`Deadline to join parties:
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`Deadline to serve Infringement Contentions, Claim Chart(s), and produce
`accompanying documents: April 4, 2018
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`Deadline to serve Response to Infringement Contentions and produce
`accompanying documents:
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`Invalidity Contentions
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`d.
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`Parties’ Position: the parties agree that Defendants need not serve Responses
`to Infringement Contentions, and Plaintiff need not serve Responses to Invalidity
`Contentions.1
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`Deadline to serve Invalidity Contentions and Claim Chart(s) and produce
`accompanying items of prior art: June 4, 2018
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`e.
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`Deadline to serve Response to Invalidity Contentions and Claim Chart(s) and
`produce accompanying documents:
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`Parties’ Position: the parties agree that Plaintiff need not serve Responses to
`Invalidity Contentions, and Defendants need not serve Responses to
`Infringement Contentions.2
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`Opinion of Counsel
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`f.
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`Deadline to make opinion(s) of counsel available for inspection and copying:
`January 31, 2019
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`Claim Construction
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`1 To the extent the Court requires that Defendants and Plaintiff respectively serve
`Responses to Infringement Contentions and Responses to Invalidity Contentions, the
`parties will be prepared to discuss such deadlines at the Scheduling Conference.
`2 As noted above, to the extent the Court requires that Defendants and Plaintiff
`respectively serve Responses to Infringement Contentions and Responses to Invalidity
`Contentions, the parties will be prepared to discuss such deadlines at the Scheduling
`Conference.
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`g.
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`h.
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`i.
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`j.
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`k.
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`l.
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`Deadline for parties to exchange list of claim terms to be construed and proposed
`construction, specifically identifying up to ten (10) of the most critical terms to be
`construed: July 25, 2018
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`Deadline to file Joint Disputed Claim Terms Chart: August 22, 2018
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`Proposed month for technology tutorial with District Judge and Magistrate Judge
`(optional): ---
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`Deadline to file opening Claim Construction brief and all supporting evidence:
`October 3, 2018
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`Deadline to file Response to opening Claim Construction brief and all supporting
`evidence: October 24, 2018
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`Deadline to file reply brief in support of opening Claim Construction brief:
`November 7, 2018
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`m. Proposed month for claim construction hearing and estimated time necessary for
`the hearing. December 2018
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`Final Patent Disclosures
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`n.
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`Deadline to file Final Infringement Contentions: 28 days after Court’s Claim
`Construction Order.
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`o.
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`Deadline to file Final Invalidity Contentions: 21 days after receiving Final
`Infringement Contentions.
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`Fact discovery deadline. April 1, 2019.
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`Expert Witness Disclosure.
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`Fact Discovery, Expert Disclosures, and Dispositive Motions Deadlines
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`p.
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`q.
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`The parties shall identify anticipated fields of expert testimony, if any.
`The technology of the asserted patents, infringement, validity and
`damages.
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`Limitations which the parties propose on the use or number of expert
`witnesses.
`None.
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`The parties shall designate all affirmative experts and provide opposing
`counsel and any pro se parties with all information specified in Fed. R.
`Civ. P. 26(a)(2). [This includes disclosure of information applicable to
`"Witnesses Who Must Provide A Written Report" under Rule 26(a)(2)(B)
`and information applicable to "Witnesses Who Do Not Provide a Written
`Report" under Rule 26(a)(2)(C).]
`May 3, 2019
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`10.
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`11.
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`12.
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`13.
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`The parties shall designate all rebuttal experts and provide opposing
`counsel and any pro se party with all information specified in Fed. R. Civ.
`P. 26(a)(2).
`June 7, 2019
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`[This includes disclosure of information applicable to "Witnesses Who Must Provide A
`Written Report" under Rule 26(a)(2)(B) and information applicable to "Witnesses Who
`Do Not Provide a Written Report" under Rule 26(a)(2)(C).]
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`r.
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`s.
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`Expert Discovery Deadline: July 5, 2019
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`Dispositive motions deadline: July 26, 2019
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`[The parties shall file, contemporaneously with the completion of claim construction
`briefing, a “Joint Motion for Determination.” which will serve as notice to the court that
`briefing has been completed.]
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`9.
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`DISCOVERY LIMITATIONS
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`a.
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`Modifications which any party proposes to the presumptive numbers of
`depositions or interrogatories contained in the Federal Rules.
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`Limitations which any party proposes on the length of depositions.
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`Interrogatories. Each side will be permitted to propound 20 common interrogatories.
`Additionally, each Defendant can propound up to 10 additional individual interrogatories,
`and Plaintiff can propound up to 10 additional individual interrogatories per Defendant.
`For purposes of the discovery limitations: (1) “side” means a party or a group of parties
`with a common interest; and (2) affiliated defendants sued by plaintiff in the same civil
`action shall be considered a single “Defendant” with respect to these discovery
`limitations except with respect to defendants who were sued on infringement claims
`directed at different accused products.
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`b.
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`Depositions are to be conducted pursuant to the Federal Rules of Civil Procedure.
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`c.
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`Limitations which any party proposes on the number of requests for production
`and/or requests for admission.
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`Requests for Admission. Each side will be permitted to propound up to 25 common
`requests for admission. Additionally, each Defendant can propound up to 20 additional
`individual requests for admission, and plaintiff can propound up to 20 additional
`individual requests for admission per Defendant. Each side is permitted an unlimited
`number of requests for admission for authentication of documents. Requests for
`admission directed to document authentication shall be clearly denoted as such, and
`shall be served separately from any requests for admission subject to the numerical
`limitations stated above.
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`d.
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`Other Planning or Discovery Orders
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`1.
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`Deadline for filing proposed protective order(s): February 23, 2018
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`2.
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`Other issues:
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`a. Privilege Logs. With respect to information generated after the filing
`of the original complaint filed on June 6, 2017 in Realtime Data LLC
`D/B/A IXO, v. Echostar Corporation et al., 6:17-CV-00084 (E.D. Tex),
`the parties are not required to include any such information in privilege
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`logs. Attachments claimed to be privileged shall be fully identified on a
`party’s privilege log in an entry separate from the parent document.
`b. Service by Electronic Mail. The Parties will make every effort to
`serve all documents electronically, by e-mail or through ECF. Parties
`may serve all documents by e-mail by sending the documents to the
`email address for all counsel of record, or agreed upon e-mail aliases
`for each party. Documents are timely served by e-mail where the e-
`mail is sent by 11:59 pm Mountain Time on the date due. Documents
`e-mailed after 5:00 p.m. Mountain Time shall be deemed served on the
`following day for purposes of calculating a response date to the
`document served.
`c. Production Of Materials Obtained Via Third-Party Subpoena. A
`party who serves a subpoena in this matter on a third party shall
`immediately provide a copy to the other parties. A party who receives
`documents from a third party pursuant to a subpoena will reproduce
`those documents to the other parties within 3 business days. Where
`reproduction of documents within 3 business days is not possible, the
`party who received the documents will provide prompt notice to the
`other parties and will work in good faith to resolve the issue on a case-
`by-case basis.
`d. Discoverability of Certain Expert Materials:
`i. The parties agree that no notes, drafts, or other types of
`preliminary written work by or for experts concerning the subject
`matter of this civil action or the Asserted Patents shall be the
`subject of discovery or inquiry at trial.
`ii. No communications, whether written or oral, between or among
`any expert(s) and counsel for the party retaining said expert(s)
`concerning the subject matter of this civil action or the Asserted
`Patents shall be the subject of discovery or inquiry at trial.
`iii. Materials, communications, and other information exempt from
`discovery under subparagraphs (i) and (ii) shall be treated as
`attorney-work product for the purposes of this litigation.
`iv. Subparagraphs (i) and (ii) shall not apply to any
`communications or documents (including messages, notes,
`drafts other types of preliminary written work) that the expert
`relied upon in forming his or her opinion as expressed in an
`affidavit, report, or testimony in connection with this civil action,
`or on which the expert intends to rely as a basis for an opinion
`expressed in an affidavit, report, or testimony in connection with
`this civil action. Such communications or documents shall be
`subject to discovery and (to the extent otherwise admissible) to
`inquiry at trial.
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`10. DATES FOR FURTHER CONFERENCES
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`[The magistrate judge will complete this section at the scheduling conference if he or
`she has not already set deadlines by an order filed before the conference.]
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`a.
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`b.
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`Status conferences will be held in this case at the following dates and times:
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`A final pretrial conference will be held in this case on July _____, 2019 at
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`o'clock _ m. A Final Pretrial Order shall be prepared by the parties and
`submitted to the court no later than five (5) days before the final pretrial
`conference.
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`11. OTHER SCHEDULING MATTERS
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`a.
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`b.
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`c.
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`Identify those discovery or scheduling issues, if any, on which counsel after a
`good faith effort, were unable to reach an agreement.
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`None at this time.
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`Anticipated length of trial and whether trial is to the court or jury.
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`All parties have requested a trial by jury. Estimated length: five (5) days.
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`Identify pretrial proceedings, if any, that the parties believe may be more
`efficiently or economically conducted in the District Court’s facility at 212 N.
`Wahsatch Street, Colorado Springs, Colorado; Wayne Aspinall U.S.
`Courthouse/Federal Building, 402 Rood Avenue, Grand Junction, Colorado; or
`the U.S. Courthouse/Federal Building, 103 Sheppard Drive, Durango, Colorado.
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`None at this time.
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`
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`[Determination of any such request will be made by the magistrate judge based on the
`individual needs of the case and the availability of space and security resources.]
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`12. NOTICE TO COUNSEL AND PRO SE PARTIES
`
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`Motions for extension of time or continuances must comply with
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`D.C.COLO.LCivR 6.1, by containing proof that a copy of the motion has been served
`upon the moving attorney's client, all attorneys of record. and all pro se parties.
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`Counsel will be expected to be familiar and to comply with the Pretrial and Trial
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`Procedures or Practice Standards established by the judicial officer presiding over the
`trial of this case.
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`With respect to discovery disputes, parties must comply with D.C.COLO.LCivR
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`7.1(a).
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`In addition to filing an appropriate notice with the clerk's office, a prose party
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`must file a copy of a notice of change of his or her address or telephone number with
`the clerk of the magistrate judge assigned to this case. In addition to filing an
`appropriate notice with the clerk's office, counsel must file a copy of any motion for
`withdrawal, motion for substitution of counsel, or notice of change of counsel's address
`or telephone number with the clerk of the magistrate judge assigned to this case.
`
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`13. AMENDMENTS TO SCHEDULING ORDER
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`The Scheduling Order may be altered or amended only upon a showing of good cause.
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`DATED this __________ day of __________, 20_____.
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`BY THE COURT:
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`_____________________________
`United States District Judge
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`13
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`Case 1:17-cv-02097-RBJ Document 70 Filed 03/02/18 USDC Colorado Page 14 of 14
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`APPROVED:
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`s/ Jay Chung
`Marc Aaron Fenster (mfenster@raklaw.com)
`Brian Ledahl (bledahl@raklaw.com)
`Reza Mirzaie (rmirzaie@raklaw.com)
`Jay Chung (jchung@raklaw.com)
`Philip X. Wang (pwang@raklaw.com)
`Timothy T. Hsieh (thsieh@raklaw.com)
`Russ August & Kabat
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, CA 90025
`Phone: 310-826-7474
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`Attorneys for Plaintiff Realtime Adaptive
`Streaming LLC
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`s/ Ruffin B. Cordell
`Ruffin B. Cordell
`Adam R. Shartzer
`Brian J. Livedalen
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` FISH & RICHARDSON P.C.
`901 15th St. N.W., 7th Fl.
`Washington, DC 20005-3500
`PH: 202-783-5070
`FX: 202-783-2331
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`Attorneys for Defendants DISH Network
`L.L.C., Sling TV L.L.C., Sling Media,
`L.L.C., and DISH Technologies L.L.C.
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`s/ Noah C. Graubart
`Noah C. Graubart
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`FISH & RICHARDSON P.C.
`1180 Peachtree St. NE, 21st Floor
`Atlanta, GA 30309
`Tel: (404) 892-5005
`Fax: (404) 892-5002
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`Attorney for Defendant ARRIS Group, Inc.
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`14
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