Case 1:17-cv-02869-MSK-STV Document 31 Filed 03/05/18 USDC Colorado Page 1 of 12
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`Civil Action No.: 17-cv-02869-MSK-STV
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`REALTIME ADAPTIVE STREAMING LLC,
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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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`[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 12, 2018 at 11:00 a.m. before the Honorable Scott T Varholak, to be conducted
`telephonically.
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`The parties are represented by following counsel.
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`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)
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`Russ August & Kabat
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, CA 90025
`Phone: 310-826-7474
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`Attorneys for Defendant:
`Clay James (clay.james@hoganlovells.com)
`Lucky Vidmar (lucky.vidmar@hoganlovells.com)
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`Aaron Oakley (aaron.oakley@hoganlovells.com)
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`Hogan Lovells US LLP
`1601 Wewatta Street, Suite 900
`Denver, CO 80202
`Phone: 303-899-7300
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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.
`8,934,535; 7,386,046; 9,769,477; 8,929,442; 8,634,462; and 9,578,298 (collectively, the
`“asserted patents”). By way of assignment, Plaintiff is the owner of all right, title and
`interest in and to the asserted 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 Defendant has directly and/or indirectly infringed, either
`literally and/or under the doctrine of equivalents, the asserted patents, via, e.g., making,
`using offering to sell, selling, and/or importing into the United States infringing products
`(e.g., compression products and services of Defendant).
`Plaintiff also seeks damages, costs, expenses, and prejudgment and post-
`judgment interest for Defendant’s infringement of the asserted patents, as provided
`under 35 U.S.C. § 284, as well as 35 U.S.C. § 285 as appropriate. Plaintiff also seek for
`Defendant 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 complaint, which are incorporated herein by
`reference.
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`Defendants’ Statement: Apple denies that it infringes any claim of the asserted
`b.
`patents or that it induces or contributes to direct infringement by others. Apple contends
`that Plaintiff fails to state any claim upon which relief can be granted and intends to file
`a motion to dismiss the complaint on that basis. Apple contends that the asserted
`patents are invalid under 35 U.S.C. §§ 101, 102, 103, or 112. Apple contends that
`Plaintiff’s claims are barred or limited in whole or in part by prosecution history estoppel,
`35 U.S.C. §§ 286 and 287, and doctrines of equity such as laches, waiver, estoppel,
`unclean hands, patent exhaustion and implied license. Apple asserts that this litigation
`is, or may become, an exceptional case under 35 U.S.C. § 285 and will request an
`award of costs and attorneys’ fees as warranted.
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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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`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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`Apple denies that Plaintiff is entitled to any damages in this case. Apple may
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`seek costs and reasonable attorneys’ fees based on Plaintiff’s conduct in bringing or
`litigating this case.
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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. 14, 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
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`Attorney for Defendant:
`Clay James
`Lucky Vidmar
`Aaron Oakley
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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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`a.
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`b.
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`c.
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`d.
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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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`f.
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`The parties consent to electronic service pursuant to Fed. R. Civ. P. 5(b)(2)(E).
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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 this case will likely involve discovery of electronically
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`stored information (“ESI”). The parties will negotiate a proposed order governing the
`handling and production of ESI.
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`g.
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`Statement summarizing the parties' discussions regarding the possibilities for
`promptly settling or resolving the case.
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`The parties agree to have ongoing discussions in an effort to resolve the case.
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`7.
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`CONSENT
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`All 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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`a.
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`b.
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`c.
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`e.
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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: The parties have agreed to forgo the Response to
`Infringement Contentions and Response to Invalidity Contentions.
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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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`Invalidity Contentions
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`d.
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`Deadline to serve Response to Invalidity Contentions and Claim Chart(s) and
`produce accompanying documents: The parties have agreed to forgo the
`Response to Invalidity Contentions and Response to Infringement Contentions.
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`Opinion of Counsel
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`f.
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`Claim Construction
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`g.
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`Deadline to make opinion(s) of counsel available for inspection and copying:
`January 31, 2019
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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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`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 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. The estimated duration of the hearing is to be
`determined based on the number and complexity of the claim terms at
`issue.
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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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`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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`o.
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`r.
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`s.
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`a.
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`1.
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`2.
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`3.
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`4.
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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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`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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`Expert Discovery Deadline: July 5, 2019
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`Dispositive motions deadline: July 26, 2019
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`9.
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`DISCOVERY LIMITATIONS
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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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`Interrogatories. Each side will be permitted to propound 20 common interrogatories.
`Additionally, each Consolidated Defendant can propound up to 10 additional individual
`interrogatories, and Plaintiff can propound up to 10 additional individual interrogatories
`per Consolidated 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
`“Consolidated 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.
`Plaintiff and Consolidated Defendants are discussing the possibility of other limits for
`depositions.
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`c.
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`Limitations which any party proposes on the length of depositions.
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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 Consolidated Defendant can propound up to
`20 additional individual requests for admission, and plaintiff can propound up to 20
`additional individual requests for admission per Consolidated 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): March 7, 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, the parties are not required to include any
`such information in privilege 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
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`a.
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`b.
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`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 practicable,
`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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`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
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`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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`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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`Plaintiff has requested a trial by jury. Estimated length: five (5) days.
`Apple has not yet answered the complaint.
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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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`a.
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`b.
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`c.
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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.
`DATED this __________ day of __________, 20_____.
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`BY THE COURT:
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`_____________________________
`United States Magistrate Judge
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`Case 1:17-cv-02869-MSK-STV Document 31 Filed 03/05/18 USDC Colorado Page 12 of 12
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`APPROVED:
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`s/ Jay Chung
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`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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`HOGAN LOVELLS US LLP
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`s/ Clayton C. James
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`Clayton C. James
`clay.james@hoganlovells.com
`Srecko "Lucky" Vidmar
`lucky.vidmar@hoganlovells.com
`Aaron S. Oakley
`aaron.oakley@hoganlovells.com
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`1601 Wewatta Street, Suite 900
`Denver, CO 80202
`Telephone: (303) 899-7300
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`Attorneys for Defendant Apple Inc.
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`12
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