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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`MEDA PHARMACEUTICALS INC. and
`CIPLALTD.,
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`P laintif.fs,
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`v.
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`APOTEX INC. and APOTEX CORP.,
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`Defendants.
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`Civil Action No. 1:14-cv-01453-LPS
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`SCHEDULING ORDER
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`This [ ~y of April, 2015, the Court having consulted with the parties' attorneys and
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`received a joint proposed scheduling order, and the parties having determined after discussion
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`that the matter cannot be resolved at this juncture by settlement, voluntary mediation, or binding
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`arbitration;
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`IT IS HEREBY ORDERED that:
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`1.
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`Rule 26(a)(l) Initial Disclosures and E-Discovery Default Standard. Unless
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`otherwise agreed to by the parties, the parties shall make their initial disclosures pursuant to
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`Federal Rule of Civil Procedure 26(a)(l) within fifteen (15) days of the date of this Order. If
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`they have not already done so the parties are to review the Court's Default Standard for
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`Discovery, including Discovery of Electronically Stored Information ("ESI") (which is posted at
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`http://www.ded.uscourts.gov; see Other Resources, Default Standards for Discovery, and is
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`incorporated herein by reference). Specifically, the parties shall start the initial discovery set
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`forth in Paragraph 4(a)-(d) of the Default Standard commencing within 30 days after the entry
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`of this ORDER.
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`2.
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`Joinder of Other Parties and Amendment of Pleadings. All motions to join other
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`parties, and to amend or supplement the pleadings, shall be filed on or before May 29, 2015.
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`3.
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`Application to Court for Protective Order. Should counsel find it will be
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`necessary to apply to the Court for a protective order specifying terms and conditions for the
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`disclosure of confidential information, counsel should confer and attempt to reach an agreement
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`on a proposed form of order and submit it to the Court within ten (10) days from the date of
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`this Order. Should counsel be unable to reach an agreement on a proposed form order, counsel
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`must follow the provisions of Paragraph 7(g) below.
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`Any proposed protective order must include the following paragraph:
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`Other Proceedings. By entering this order and
`limiting the disclosure of information in this case,
`the Court does not intend to preclude another court
`from finding that information may be relevant and
`subject to disclosure in another case. Any person or
`party subject to this order who becomes subject to a
`motion to disclose another party's information
`designated "confidential" [the parties should list any
`other level of designation, such as "highly
`confidential," which may be provided for in the
`protective order] pursuant to this order shall
`promptly notify that party of the motion so that the
`party may have an opportunity to appear and be
`heard on whether that information should be
`disclosed.
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`4.
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`Papers Filed Under Seal. In accordance with section G of the Administrative
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`Procedures Governing Filing and Service by Electronic Means, a redacted version of any sealed
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`document shall be filed electronically within seven (7) days of the filing of the sealed document.
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`Should any party intend to request to seal or redact all or any portion of a transcript of a
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`court proceeding (including a teleconference), such party should expressly note that intent at the
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`start of the court proceeding. Should the party subsequently choose to make a request for sealing
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`or redaction, it must, promptly after the completion of the transcript, file with the Court a motion
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`for sealing/redaction, and include as attachments (1) a copy of the complete transcript
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`highlighted so the Court can easily identify and read the text proposed to be sealed/redacted, and
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`(2) a copy of the proposed redacted/sealed transcript. With their request, the party seeking
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`redactions must demonstrate why there is good cause for the redactions and why disclosure of
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`the redacted material would work a clearly defined and serious injury to the party seeking
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`redaction.
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`5.
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`Courtesy Copies. Other than with respect to "discovery matters," which are
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`governed by paragraph 7(g), and the final pretrial order, which is governed by paragraph 20, the
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`parties shall provide to the Court two (2) courtesy copies of all briefs and one ( 1) courtesy copy
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`of any other document filed in support of any briefs (i.e., appendices, exhibits, declarations,
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`affidavits etc.). This provision also applies to papers filed under seal.
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`6.
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`ADR Process. This matter is referred to a magistrate judge to explore the
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`possibility of alternative dispute resolution.
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`7.
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`Discovery. Unless otherwise ordered by the Court, the limitations on discovery
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`set forth in Local Rule 26. l shall be strictly observed.
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`a.
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`Discovery Cut Off. All [fact] discovery in this case shall be initiated so
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`that it will be completed on or before: February 26, 2016.
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`b.
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`Document Production. Document production shall be substantially
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`complete by: October 23, 2015.
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`c.
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`Requests for Admission. A maximum of 50 requests for admission are
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`permitted for each side, excluding those solely related to authentication of documents.
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`d.
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`Interrogatories.
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`i.
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`A maximum of 20 interrogatories, including contention
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`interrogatories are permitted for each side.
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`n.
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`The Court encourages the parties to serve and respond to
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`contention interrogatories early in the case. In the absence
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`of agreement among the parties, contention interrogatories,
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`if filed, shall first be addressed by the party with the burden
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`of proof. The adequacy of all interrogatory answers shall be
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`judged by the level of detail each party provides; i.e., the
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`more detail a party provides, the more detail a party shall
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`receive.
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`e.
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`Depositions.
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`I.
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`Limitation on Hours for Deposition Discovery. Each side is
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`limited to a total of 70 hours, not to exceed 10 notices of
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`deposition, of taking testimony by deposition upon oral
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`examination, excluding experts and third parties. To the
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`extent a witness requires an interpreter, only half of the
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`deposition time used for that witness shall count towards
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`the 70 hour limitation.
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`ii.
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`Location of Depositions. Any party or representative
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`(officer, director, or managing agent) of a party filing a
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`civil action in this district court must ordinarily be required,
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`upon request, to submit to a deposition at a place
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`designated within this district. Exceptions to this general
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`rule may be made by order of the Court. A defendant who
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`becomes a counterclaimant, cross-claimant, or third-party
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`plaintiff shall be considered as having filed an action in this
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`Court for the purpose of this provision.
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`f.
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`Disclosure of Expert Testimony.
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`i.
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`Expert Reports. For the party who has the initial burden of
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`proof on the subject matter, the initial Federal Rule 26(a)(2)
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`disclosure of expert testimony is due on or before April 1,
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`2016. The supplemental disclosure to contradict or rebut
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`evidence on the same matter identified by another party is
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`due on or before May 6, 2016. Reply expert reports from
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`the party with the initial burden of proof are due on or
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`before June 3, 2016. By agreement of the parties, plaintiffs
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`will serve opening and reply expert reports regarding
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`objective indicia of non-obviousness and defendants will
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`serve rebuttal expert reports regarding objective indicia of
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`non-obviousness, but this agreement shall not be construed
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`as altering any party's burden of proof at trial on any
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`issues. No other expert reports will be permitted without
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`either the consent of all parties or leave of the Court. Along
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`with the submissions of the expert reports, the parties shall
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`advise of the dates and times of their experts' availability
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`for deposition. All expert discovery in this case shall be
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`initiated so that it will be completed on or before: July 15,
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`2016.
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`n.
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`Expert Report Supplementation. The parties agree they will
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`not permit expert declarations to be filed in connection with
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`motions briefing (including case dispositive motions).
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`m.
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`Objections to Expert Testimony. To the extent any
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`objection to expert testimony is made the principles
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`announced in Daubert v. Merrell Dow Pharm., Inc., 509
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`U.S. 579 (1993), as incorporated in Federal Rule of
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`Evidence 702, it shall be made by motion no later than the
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`deadline for dispositive motions set forth herein, unless
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`otherwise ordered by the Court. Briefing on such motions is
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`subject to the page limits set out in connection with briefing
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`of case dispositive motions.
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`g.
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`Discovery Matters and Disputes Relating to Protective Orders.
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`1.
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`Any discovery motion filed without first complying with the
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`following procedures will be denied without prejudice to renew
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`pursuant to these procedures.
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`11.
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`Should counsel find, after good faith efforts - including verbal
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`communication among Delaware and Lead Counsel for all
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`parties to the dispute - that they are unable to resolve a
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`discovery matter or a dispute relating to a protective order, the
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`parties involved in the discovery matter or protective order
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`dispute shall submit a joint letter in substantially the following
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`form:
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`Dear Judge Stark:
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`The parties in the above -
`Referenced matter write to request the
`Scheduling of a discovery
`Teleconference.
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`The following attorneys,
`Including at least one Delaware
`Counsel and at least one Lead
`Counsel per party, participated in a
`Verbal meet-and-confer (in person
`and/or by telephone) on the
`following date(s):
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`Delaware Counsel: ~~~~~~~~~~~~-
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`The disputes requiring
`judicial attention are listed below:
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`[provide here a non-argumentative
`list of disputes requiring judicial
`attention]
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`m. On a date to be set by separate order, generally not less than
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`forty-eight (48) hours prior to the conference, the party seeking
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`relief shall file with the Court a letter, not to exceed three (3)
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`pages, outlining the issues in dispute and its position on those
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`issues. On a date to be set by separate order, but generally not
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`less than twenty-four (24) hours prior to the conference, any
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`party opposing the application for relief may file a letter, not to
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`exceed three (3) pages, outlining the party's reason for its
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`opposition.
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`iv.
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`Each party shall submit two (2) courtesy copies of its discovery
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`letter and any attachments.
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`v.
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`Should the Court find further briefing necessary upon
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`conclusion of the telephone conference, the Court will order it.
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`Alternatively, the Court may choose to resolve the dispute prior
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`to the telephone conference and will, in the event, cancel the
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`conference.
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`8.
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`Motions to Amend.
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`a.
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`Any motion to amend (including a motion for leave to amend) a pleading
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`shall NOT be accompanied by an opening brief but shall, instead, be accompanied by a letter, not
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`to exceed three (3) pages, describing the basis for the requested relief, and shall attach the
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`proposed amended pleading as well as a "blackline" comparison to the prior pleading.
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`b.
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`Within seven (7) days after the filing of a motion in compliance with this
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`Order, any party opposing such a motion shall file a responsive letter, not to exceed five (5)
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`pages.
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`c.
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`Within three (3) days thereafter, the moving party may file a reply letter,
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`not to exceed two (2) pages, and, by this same date, the parties shall file a letter requesting a
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`teleconference to address the motion to amend.
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`9.
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`Motions to Strike.
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`a.
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`Any motion to strike any pleading or other document shall NOT be
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`accompanied by an opening brief but shall, instead, be accompanied by a letter, not to exceed
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`three (3) pages, describing the basis for the requested relief, and shall attach the document to be
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`stricken.
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`b.
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`Within seven (7) days after the filing of a motion in compliance with this
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`Order, any party opposing such a motion shall file a responsive letter, not to exceed five (5)
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`pages.
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`c.
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`Within three (3) days thereafter, the moving party may file a reply letter,
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`not to exceed two (2) pages, and, by this same date, the parties shall file a letter requesting a
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`teleconference to address the motion to strike.
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`10.
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`Tutorial Describing the Technology and Matters in Issue. Unless otherwise
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`ordered by the Court, the parties shall provide the Court, no later than the date on which their
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`opening claim construction briefs are due, a tutorial on the technology at issue. In that regard, the
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`parties may separately or jointly submit a DVD of not more than thirty (30) minutes. The tutorial
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`should focus on the technology at issue and should not be used for argument. The parties may
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`choose to file their tutorial(s) under seal, subject to any protective order in effect. Each party may
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`comment, in writing (no more than five (5) pages) on the opposing party's tutorial. Any such
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`comment shall be filed no later than the date on which the answering claim construction briefs
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`are due. As to the format selected, the parties should confirm the Court's technical abilities to
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`access the information contained in the tutorial.
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`11.
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`Claim Construction Issue Identification. On October 1, 2015, the parties shall
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`exchange a list of those claim term(s)/phrase(s) that they believe need construction and their
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`proposed claim construction of those term(s)/phrase(s). This document will not be filed with the
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`Court. Subsequent to exchanging that list, the parties will meet and confer to prepare a Joint
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`Claim Construction Chart to be submitted on October 22, 2015. The parties' Joint Claim
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`Construction Chart should identify for the Court the term(s)/phrase(s) of the claim(s) in issue,
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`and should include each party's proposed construction of the disputed claim language with
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`citation(s) only to the intrinsic evidence in support of their respective proposed constructions. A
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`copy of the patent(s) in issue as well as those portions of the intrinsic record relied upon shall be
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`with this Joint Claim Construction Chart. In this joint submission, the parties shall not provide
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`argument.
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`12.
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`Claim Construction Briefing. The parties shall contemporaneously submit initial
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`briefs on claim construction issues on November 23, 2015. The parties answering/responsive
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`briefs shall be contemporaneously submitted on December 23, 2015. No reply briefs of
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`supplemental papers on claim construction shall be submitted without leave of the Court. Local
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`Rule 7 .1.3( 4) shall control the page limitations for initial (opening) and responsive (answering)
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`briefs.
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`Hearing on Claim Construction. Beginning at J; 0 0 r111 on
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`F ~b, '8 ) ~o \ b [the parties propose 10:00 a.m. on January 21, 2016, or as soon
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`thereafter as is convenient for the Court], the Court will hear argument on claim construction.
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`The parties shall notify the Court, by joint Jetter submission, no later than the date on which their
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`answering claim construction briefs are due: (i) whether they request leave to present testimony
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`at the hearing; and (ii) the amount of time they are requesting be allocated to them for the
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`hearing.
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`Provided the parties comply with all portions of this Scheduling Order, and any other
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`orders of the Court will issue its claim construction order within sixty (60) days after the
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`conclusion of the claim construction hearing.
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`14.
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`Interim Status Report. On February 11, 2016, counsel shall submit a joint letter
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`to the Court with an interim report on the nature of the matters in issue and the progress of
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`discovery to date. Thereafter, if the Court deems it necessary, it will schedule a status
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`conference.
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`15.
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`Supplementation. Absent agreement among the parties, and approval of the Court,
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`no later than March 11, 2016, the parties must finally supplement, inter alia, the identification
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`of all accused products and of all invalidity references.
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`16.
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`17.
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`Case Dispositive Motions. None.
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`Applications by Motion. Except as otherwise herein, any application to the Court
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`shall be by written motion filed with the Clerk. Any non-dispositive motion should contain the
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`statement required by Local Rule 7 .1.1.
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`18.
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`Pretrial Conference. On Mo.rcL
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`[the parties propose October
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`7, 2016, or as soon thereafter as is convenient for the Court], the Court will hold a pretrial
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`conference in Court with counsel beginning at \ t ยท.) 0 o.n-.. Unless otherwise ordered by the
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`Court, the parties should assume that filing the pretrial order satisfies the pretrial disclosure
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`requirement of Federal Rule of Civil Procedure 26(a)(3). The parties shall file with the Court the
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`joint proposed final pretrial order with the information required by the form of Revised Final
`FQ..\,. l\ > iot1.
`Pretrial Order, on or before Septeml:Je1 23, 2616. Unless otherwise ordered by the Court, the
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`parties shall comply with timeframes set forth in Local Rule 16.3( d)( 1 )-(3) for the preparation of
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`the joint proposed final pretrial order.
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`The parties shall provide the Court two (2) copies of the joint proposed final pretrial
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`order and all attachments.
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`As noted in the Revised Final Pretrial Order, the parties shall include in their joint
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`proposed final pretrial order, among other things:
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`a.
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`a request for a specific number of hours for their trial presentations, as
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`well as a requested number of days, based on the assumption that in a typical bench trial day
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`there will be 6-7 hours of trial time;
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`b.
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`their position as to whether the Court should allow objections to efforts to
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`impeach a witness with prior testimony, including objections based on lack of completeness
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`and/or lack of inconsistency;
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`c.
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`their position as to whether the Court should rule at trial on objections to
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`expert testimony as beyond the scope of prior expert disclosures, taking time from the parties'
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`trial presentation to argue and decide such objections, or defer ruling on all such objections
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`unless renewed in writing following trial, subject to the proviso that a party prevailing on such a
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`post-trial objection will be entitled to have all of its costs associated with a new trial paid for by
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`the party that elicited the improper expert testimony at the earlier trial; and
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`d.
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`their position as to how to make motions for judgment as a matter of law,
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`whether it be immediately at the appropriate point during trial or at a subsequent break and
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`whether such motions maybe supplemented in writing.
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`19. Motions in Limine. Motions in limine shall not be separately filed. All in limine
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`requests and responses thereto shall be set forth in the proposed pretrial order. Each SIDE shall
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`be limited to three (3) in limine requests, unless otherwise permitted by the Court. The in limine
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`request and any response shall contain the authorities relied upon; each in limine request may be
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`supported by a maximum of three (3) pages of argument and may be opposed by a maximum of
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`three (3) pages of argument, and the side making the in limine request may add a maximum of
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`one (1) additional page in reply in support of its request. If more than one party is supporting or
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`opposing an in limine request, such support or opposition shall be combined in a single three (3)
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`page submission (and, ifthe moving party, a single (1) page reply), unless otherwise ordered by
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`the Court. No separate briefing shall be submitted on in limine requests, unless otherwise
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`permitted by the Court.
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`20.
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`Trial. This matter is scheduled for a five-day bench trial beginning at 8:30 a.m. on
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`Mo..rc.J.....
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`\fa ) io \] [tbe parties propo~e ,N9ve111ber 14, 2016, or H soon thereafteF as is
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`-e6nnnient f9F tbe Cout=fj, with the subsequent trial days beginning at 8:30 a.m., pending the
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`Court's availability. The trial day will end no later than 5:00 p.m. each day.
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`21.
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`Post-Trial Briefing. The parties will address the post-trial briefing sc
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`page limits in the proposed final pretrial order.
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`CHIEF J DGE
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