Case 1:15-cv-00404-GMS Document 25 Filed 02/17/16 Page 1 of 6 PageID #: 415
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 15-404-GMS
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`)))))))))
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`APOTEX, INC. and APOTEX CORP.,
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`Defendants.
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`CEPHALON, INC.,
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`Plaintiff,
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`v.
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`[PROPOSED] SCHEDULING ORDER
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`This ______ day of _______________ 20___, the parties having determined after
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`discussion that the matter cannot be resolved at this juncture by settlement, voluntary mediation
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`or binding arbitration;
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`IT IS ORDERED that:
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`1.
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`Rule 26(a) and Other Initial Disclosures. Unless otherwise agreed to by the
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`parties, they shall make their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)
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`and on or before February 10, 2016.
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`2.
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`Joinder of other Parties and Amendment of Pleadings. Unless otherwise
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`agreed to by the parties, all motions to join other parties shall be filed on or before April 11,
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`2016 and all motions to amend the pleadings shall be filed on or before June 10, 2016.
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`3.
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`Markman Claim Construction Hearing. The Court construed the terms of the
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`patents-in-suit in C.A. No. 13-2046-GMS and the ruling from that action shall apply here.
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`4.
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`Discovery. The parties’ document production shall be substantially completed on
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`or before June 17, 2016. All fact discovery in this case shall be initiated so that it will be
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`completed on or before July 29, 2016. Opening expert reports on issues on which a party bears
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`the burden of proof shall be served on or before September 16, 2016. Rebuttal expert reports
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`shall be served on or before October 19, 2016. Reply expert reports only as to objective indicia
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`of nonobviousness, if raised, shall be served on or before November 4, 2016. Expert Discovery
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`in this case shall be initiated so that it will be completed on or before January 27, 2017.
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`a.
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`Discovery and Scheduling Matters. Should counsel find they are unable
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`to resolve a discovery1 or scheduling matter, the party seeking the relief shall contact chambers
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`at (302) 573-6470 to schedule a telephone conference. Not less than forty-eight hours prior to
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`the teleconference, the parties shall file with the court, via electronic means (CM/ECF), a Joint
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`Letter Agenda, which is non-argumentative, not to exceed two (2) pages outlining the issue(s)
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`in dispute. A sample letter can be located on this court’s website at www.ded.uscourts.gov.
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`After the parties have had three (3) discovery teleconferences, a party will be required to show
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`good cause why the court should permit another discovery teleconference as to that party.
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`Should the court find further briefing necessary upon conclusion of the telephone conference,
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`unless otherwise directed, the party seeking relief shall file with the court a TWO PAGE
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`LETTER, exclusive of exhibits, describing the issues in contention. The responding party shall
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`file within five (5) days from the date of service of the opening letter an answering letter of no
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`more than TWO PAGES. The party seeking relief may then file a reply letter of no more than
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`TWO PAGES within three (3) days from the date of service of the answering letter.
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`b.
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`Discovery Limitations. The parties agree to adhere to the limitations on
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`discovery set forth in the Federal Rules of Civil Procedure, the Local Rules, and Paragraph 4(e)
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`of the Court’s Default Discovery Standard, except as further ordered by the Court, and except
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`1 Unless the court otherwise orders, should counsel be unable to agree on the discovery of paper
`and electronic documents, the court’s “Default Standard for Discovery, Including Discovery of
`Electronically Stored Information” (“ESI”) shall govern.
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`2
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`that:
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`i.
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`Requests for Admission: Each party shall be limited to fifty (50)
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`requests for each defendant group, except for the purpose of
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`authenticity.
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`ii. Fact Depositions: Each party shall be limited to ten (10) fact
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`depositions. A deposition taken pursuant to Federal Rule of Civil
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`Procedure 30(b)(6) shall count as a single deposition toward the 10-
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`deposition limit despite the number of deposition topics. Each
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`deposition will be limited to 7 hours in length of on-the-record time.
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`Each 7 hours of on-the-record time of testimony pursuant to Federal
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`Rule of Civil Procedure 30(b)(6) shall count as one deposition. The
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`parties will discuss and work together in good faith concerning any
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`requests to adjust the length of any particular deposition in excess of
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`the limits described above. For any deposition conducted in a
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`language other than English, each hour of on-the-record time will be
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`counted as one half hour for purposes of the above limits. The parties
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`each reserve their right to seek relief from the Court to limit the length
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`of any particular deposition or take depositions in excess of the limits
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`described above.
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`iii. Third-Party Subpoenas: Any party which serves a subpoena upon a
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`third party will simultaneously serve a copy of such subpoena upon
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`every other party. Moreover, any party that receives documents from
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`a third party pursuant to a subpoena will reproduce those documents to
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`the other parties within ten (10) days. Where reproduction of
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`documents within the above time frame is not possible, the party that
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`received the documents will provide immediate notice to the other
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`parties and the issue will be resolved by the parties on a case-by-case
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`basis.
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`iv. Expert Depositions: The parties agree that expert depositions will not
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`count towards the fact deposition limits defined above. The parties
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`agree that each expert deposition will be limited to 7 hours in length of
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`on-the-record time per issue addressed by an expert. For example, if
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`an expert is testifying as to validity and infringement, each issue will
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`be subject to a separate 7 hour length. The parties will work together
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`in good faith to determine the length of time for each expert deposition
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`after expert reports have been served.
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`5.
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`Confidential Information and Papers filed under Seal. Should counsel find it
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`will be necessary to apply to the court for a protective order specifying terms and conditions for
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`the disclosure of confidential information, they 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 days from the date of this order.
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`When filing papers under seal, counsel should deliver to the Clerk an original and two copies of
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`the papers.
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`6.
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`Settlement Conference. Pursuant to 28 U.S.C. § 636, this matter is referred to
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`the United States Magistrate Judge for the purpose of exploring the possibility of a settlement.
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`The parties shall wait to be contacted by the assigned United States Magistrate Judge.
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`7.
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`Applications by Motion. Except as provided in this Scheduling Order or for
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`4
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`matters relating to scheduling, any application to the Court shall be by written motion filed, via
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`electronic means (CM/ECF). Unless otherwise requested by the Court, counsel shall not deliver
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`copies of papers or correspondence to Chambers. Any non-dispositive motion should contain the
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`statement required by Local Rule 7.1.1.
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`8.
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`Oral Argument. If the Court believes that oral argument is necessary, the Court
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`will schedule a hearing Pursuant to District of Delaware Local Rule 7.1.4.
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`9.
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`Pretrial Conference. On March 30, 2017, beginning at 10:00 a.m., the Court will
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`hold a Pretrial Conference via teleconference with counsel. Unless otherwise ordered by the
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`Court, the parties should assume that filing the Joint Pretrial Order satisfies the pretrial
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`disclosure requirement in Federal Rule of Civil Procedure 26(a)(3). A sample form of Pretrial
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`Order can be located on this court’s website at www.ded.uscourts.gov. Thirty (30) days before
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`the Joint Proposed Pretrial Order is due, Plaintiff’s counsel shall forward to defendant’s counsel
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`a draft of the pretrial order containing the information Plaintiff proposes to include in the draft.
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`Defendant’s counsel shall, in turn, provide to Plaintiff’s counsel any comments on the Plaintiff’s
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`draft, as well as the information defendant proposes to include in the proposed pretrial order.
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`Motions in limine2: NO MOTIONS IN LIMINE SHALL BE FILED; instead, the parties shall
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`be prepared to address their evidentiary issues at the Pretrial Conference and during trial (before
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`and after the trial day). The parties shall file with the court the joint Proposed Final Pretrial
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`Order in accordance with the terms and with the information required by the form of Final
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`Pretrial Order, which can be located on this court’s website at www.ded.uscourts.gov on or
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`before February 27, 2017.
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`10.
`Trial. This matter is scheduled for a 5-day (jury or bench) bench trial beginning
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`2The parties should simply list, in an Exhibit to be attached to the Pretrial order, the issues under
`a heading such as “Plaintiff’s [name of party] List of Evidentiary Issues It Intends To Raise.”
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`5
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`Case 1:15-cv-00404-GMS Document 25 Filed 02/17/16 Page 6 of 6 PageID #: 420
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`at 9:00 a.m. on April 24, 2017.
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`11.
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`Scheduling. The parties shall contact chambers, at (302) 573-6470, only in
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`situations where scheduling relief is sought, and only then when ALL participating counsel is on
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`the line for purposes of selecting a new date.
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`UNITED STATES DISTRICT JUDGE
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`6
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