`EVOLVED WIRELESS, LLC,
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`APPLE INC.,
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`
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`Plaintiff,
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`v.
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`Defendant.
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`
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`C.A. No. 15–542–JFB–SRF
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`
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`Case 1:15-cv-00542-JFB-SRF Document 464 Filed 02/19/19 Page 1 of 41 PageID #: 28822
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`[PROPOSED] JOINT PRETRIAL ORDER
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`

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`Case 1:15-cv-00542-JFB-SRF Document 464 Filed 02/19/19 Page 2 of 41 PageID #: 28823
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`
`Table of Exhibits ............................................................................................................................ iv
`
`TABLE OF CONTENTS
`
`
`I.
`
`Nature of Case ..................................................................................................................... 1
`
`A.
`
`Procedural history ................................................................................................... 1
`
`1.
`
`2.
`
`3.
`
`Joint Statement.......................................................................................... 1
`
`Apple Additional Statement ..................................................................... 3
`
`Evolved Wireless Additional Statement.................................................. 4
`
`B.
`
`Outstanding motions ............................................................................................... 4
`
`II.
`
`III.
`
`IV.
`
`V.
`
`VI.
`
`Federal Jurisdiction ............................................................................................................. 5
`
`Facts which are admitted and require no proof ................................................................... 6
`
`Issues of fact which remain to be litigated .......................................................................... 6
`
`Issues of law which remain to be litigated .......................................................................... 6
`
`Exhibits to be offered at trial .............................................................................................. 6
`
`A.
`
`Demonstrative Exhibits ........................................................................................... 8
`
`VII. Witnesses ............................................................................................................................ 9
`
`A.
`
`B.
`
`Presentation of witnesses at trial ............................................................................. 9
`
`Deposition designations ........................................................................................ 11
`
`VIII. Plaintiff’s statement of intended proof ............................................................................. 13
`
`A.
`
`B.
`
`C.
`
`Infringement .......................................................................................................... 14
`
`Validity ................................................................................................................. 14
`
`Damages ................................................................................................................ 15
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`D. Willfulness ............................................................................................................ 15
`
`E.
`
`F.
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` ...................................................................................... 15
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`No Breach of FRAND Obligations ....................................................................... 15
`
`i
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`

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`Case 1:15-cv-00542-JFB-SRF Document 464 Filed 02/19/19 Page 3 of 41 PageID #: 28824
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`IX.
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`Defendant’s statement of intended proof .......................................................................... 15
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`G.
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`Invalidity ............................................................................................................... 16
`
`Non-Infringement ................................................................................................. 16
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`No Willful Infringement ....................................................................................... 17
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`Damages ................................................................................................................ 17
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` ......................................................................................... 18
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`.................................................................................................. 18
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`Breach of FRAND Obligations ............................................................................. 18
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`X.
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`Counterclaimants’ statement of intended proof ................................................................ 19
`
`A.
`
`B.
`
`C.
`
`Invalidity ............................................................................................................... 19
`
`Non-Infringement ................................................................................................. 19
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`Breach of FRAND Obligations ............................................................................. 20
`
`XI.
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`Amendments of the pleadings ........................................................................................... 21
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`XII. Certification regarding settlement ..................................................................................... 21
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`XIII. Additional matters ............................................................................................................. 21
`
`A.
`
`Jury trial ................................................................................................................ 21
`
`1.
`
`2.
`
`3.
`
`Evolved Wireless’s Position ................................................................... 21
`
`Apple’s Position ....................................................................................... 21
`
`Agreed Positions ...................................................................................... 22
`
`B.
`
`Representative Product Stipulation ....................................................................... 24
`
`1.
`
`2.
`
`Evolved Wireless’s Statement ................................................................ 24
`
`Apple’s Statement ................................................................................... 24
`
`Order of Presentation of Evidence ........................................................................ 25
`
`Jury instructions .................................................................................................... 26
`
`Federal Judicial Center Introduction to Patent System Video .............................. 27
`
`C.
`
`D.
`
`E.
`
`ii
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`

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`Case 1:15-cv-00542-JFB-SRF Document 464 Filed 02/19/19 Page 4 of 41 PageID #: 28825
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`F.
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`G.
`
`H.
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`I.
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`J.
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`Confidentiality ...................................................................................................... 27
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`Set-up of Electronic Computer Devices ............................................................... 27
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`Interrogatories ....................................................................................................... 28
`
`Stipulations ........................................................................................................... 28
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`Additional Matters ................................................................................................ 29
`
`1.
`
`Claim Construction ................................................................................. 29
`
`a) Apple’s Position .................................................................... 29
`
`b) Evolved Wireless’s Position ................................................ 33
`
`2.
`
`Discovery Matter ..................................................................................... 35
`
`a) Apple’s Position .................................................................... 35
`
`b) Evolved Wireless’s Position ................................................ 36
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`iii
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`Case 1:15-cv-00542-JFB-SRF Document 464 Filed 02/19/19 Page 5 of 41 PageID #: 28826
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`TABLE OF EXHIBITS
`
`
`Joint Statement of Admitted Facts ...................................................................................Exhibit 1
`
`Evolved Wireless’s Statement of Issues of Fact Which Remain to be Litigated.............Exhibit 2
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`Apple’s Statement of Issues of Fact Which Remain to be Litigated ...............................Exhibit 3
`
`Evolved Wireless’s Statement of Issues of Law Which Remain to be Litigated ............Exhibit 4
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`Apple’s Statement of Issues of Law Which Remain to be Litigated ...............................Exhibit 5
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`Evolved Wireless’s Trial Exhibit List..............................................................................Exhibit 6
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`Apple’s Trial Exhibit List ................................................................................................Exhibit 7
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`Evolved Wireless’s Trial Witness List ............................................................................Exhibit 8
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`Apple’s Witness Trial Witness List .................................................................................Exhibit 9
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`Evolved Wireless’s Deposition Designations ..................................................................Exhibit 10
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`Apple’s Deposition Designations ....................................................................................Exhibit 11
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`iv
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`Case 1:15-cv-00542-JFB-SRF Document 464 Filed 02/19/19 Page 6 of 41 PageID #: 28827
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`[PROPOSED] PRETRIAL ORDER
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`Plaintiff Evolved Wireless, LLC (“Evolved Wireless”) and Apple Inc. (“Apple”) jointly
`
`submit this Pretrial Order pursuant to Federal Rule of Civil Procedure 16, District of Delaware
`
`Local Rule 16.3, and the Court’s September 6, 2018 Joint Amended Pretrial and Trial
`
`Scheduling Order, D.I. 432. The pretrial conference is scheduled for March 5, 2019 at 10:00
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`a.m., and a 10-day jury trial is currently scheduled to begin against Apple in Civil Action No. 15-
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`542-JFB-SRF on March 25, 2019.
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`This order shall control the subsequent course of the action, unless modified by the Court
`
`to prevent manifest injustice.
`
`I.
`
`Nature of Case
`
`A.
`
`Procedural history
`
`
`
`1.
`
`Joint Statement
`
`1.
`
`Plaintiff Evolved Wireless filed this patent infringement case against Defendant
`
`Apple on June 25, 2015, asserting patent infringement claims on five patents that the patentee
`
`declared are “essential” to the Long-Term Evolution (“LTE”) wireless communications standard.
`
`D.I. 1 (Complaint for Patent Infringement). Defendant Apple filed an Answer and
`
`Counterclaims. D.I. 9.
`
`2.
`
`Evolved Wireless also filed suits at the same time against HTC, Motorola,
`
`Samsung, ZTE, and Microsoft, all of which are pending before this Court and which were
`
`coordinated for various pretrial purposes. Evolved Wireless, LLC v. HTC Corp., 15-cv-543;
`
`Evolved Wireless, LLC v. Motorola Mobility, LLC, 15-cv-544; Evolved Wireless, LLC v.
`
`Samsung Elecs. Co, Ltd. et al, 15-cv-545; Evolved Wireless, LLC v. ZTE Corp., 15-cv-546;
`
`Evolved Wireless, LLC v. Microsoft Corp. et al, 15-cv-547.
`
`1
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`
`

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`Case 1:15-cv-00542-JFB-SRF Document 464 Filed 02/19/19 Page 7 of 41 PageID #: 28828
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`3.
`
`In July 2017, the parties stipulated to the dismissal of the ’916, ’965 and ’481
`
`patents, leaving the ’373 and ’236 patents as the two patents-in-suit. D.I. 164
`
`4.
`
`Evolved Wireless alleges Apple infringes claims 15, 16, 17, 18, 19, 20, 21, 23, 24,
`
`and 25 of U.S. Patent No. 7,809,373 (the “’373 patent”), and claims 1, 2, 3, 4, 5, 6, 7, 8, 9, 10,
`
`12, and 13 of U.S. Patent No. 7,881,236 (the “’236 patent”) (together, the “asserted claims”).
`
`The patentee declared that the ’373 and ’236 patents are essential to the Long Term Evolution
`
`(“LTE”) wireless communications standard. Evolved Wireless contends that the ’373 and ’236
`
`patents are standard essential patents (“SEPs”) necessary to comply with the LTE wireless
`
`communications standard.
`
`5.
`
`Apple contends that the ’373 and ’236 patents are neither essential to the LTE
`
`wireless communications standard nor necessary for a mobile device to comply or be compatible
`
`with the LTE wireless communications standard. Apple denies Evolved Wireless’s allegations
`
`of infringement, alleges the asserted claims of the ’373 and ’236 patents are invalid, and asserts
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`various affirmative defenses and counterclaims, including affirmative defenses alleging
`
`
`
` and a counterclaim for an alleged breach of Evolved Wireless’s
`
`contractual FRAND obligation.
`
`6.
`
`On November 14, 2016, this Court issued its claim construction order, construing
`
`the disputed claim terms of the ’373 and ’236 patents.1 D.I. 110.
`
`
`1 As addressed below, Apple contends that, following the Court’s claim construction order, two
`claim construction issues have arisen that require resolution before the jury hears this case. D.I.
`223, 244, 270. As addressed below, Evolved Wireless contends that no new claim construction
`issues have arisen because Defendants’ experts applied the full scope of the claim terms in their
`invalidity reports. Further, Apple’s strategic decision not to seek claim construction of these
`terms in addition to the 20 terms it did raise during claim construction precludes Apple from
`making untimely, incorrect claim construction arguments on the eve of trial.
`2
`
`
`

`

`Case 1:15-cv-00542-JFB-SRF Document 464 Filed 02/19/19 Page 8 of 41 PageID #: 28829
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`2.
`
`Apple Additional Statement
`
`7.
`
`Apple and other defendants simultaneously filed inter partes review petitions with
`
`the United States Patent Trial and Appeal Board (“PTAB”), requesting review of all five of the
`
`asserted patents-in-suit. The PTAB denied to institute inter partes review of U.S. Patent No.
`
`7,809,373 (the “’373 patent”). The PTAB did institute inter partes review of the other four
`
`patents-in-suit, namely U.S. Patent Nos. 7,746,916 (the “’916 patent”), 7,768,965 (the “’965
`
`patent”), 8,218,481 (the “’481 patent”) and 7,881,236 (the “’236 patent”). The PTAB
`
`subsequently issued final written decisions invalidating all asserted claims of the ’916, ’965,
`
`’481 and ’236 patents. See IPR2016-01208, Paper 30 (December 14, 2017 Final Written
`
`Decision for asserted claims of the ’916 patent); IPR2016-01177, Paper 27 (December 20, 2017
`
`Final Written Decision for asserted claims of the ’965 patent); IPR2016-00981, Paper 19 (March
`
`12, 2018 Final Written Decision for asserted claims of the ’481 patent); and IPR2016-01228,
`
`Paper 27 (November 30, 2017 Final Written Decision for asserted claims of the ’236 patent).
`
`8.
`
`Evolved Wireless filed a request for rehearing in the ’236 patent inter partes
`
`review proceedings. The PTAB denied Evolved Wireless’s request for rehearing. See IPR2016-
`
`01228, Paper 32. Evolved Wireless currently is appealing the PTAB’s final written decision for
`
`the ’236 patent to the Federal Circuit. Briefing in that appeal is expected to be completed by
`
`February 2019. Evolved Wireless did not appeal the final written decisions for the ’916, ’965
`
`and ’481 patents. The asserted claims of these patents were therefore found unpatentable. The
`
`U.S. Patent and Trademark Office has issued certificates canceling all asserted claims of the ’916
`
`and ’965 patents, and will soon issue a certificate canceling the asserted claims of the ’481
`
`patent.
`
`3
`
`
`

`

`Case 1:15-cv-00542-JFB-SRF Document 464 Filed 02/19/19 Page 9 of 41 PageID #: 28830
`Case 1:15-cv-00542-JFB-SRF Document 464 Filed 02/19/19 Page 9 of 41 PageID #: 28830
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`3.
`
`Evolved Wireless Additional Statement
`
`9.
`
`After institution was denied by the PTAB as to the ’373 patent, Defendants filed a
`
`request for rehearing in the ’373 patent inter partes review proceedings. The PTAB denied
`
`Defendants’ request for rehearing. IPR2016-01185, Paper 9 (Jan. 18, 2017); IPR2016—01185,
`
`Paper 11 (Apr. 17, 2017).
`
`B.
`
`Outstanding motions
`
`10.
`
`The following motions remain outstanding:
`
`_ named
`Evolved Wireless’s Motion for Judgment on the
`3/3/2016
`
`30, 31, 40, 44
`
`Pleadings to Fed. R. Civ. P. 12(c) and Motion to Strike
`
`Pursuant to Fed. R. Civ. P. 12(1)
`
`Evolved Wireless’s Objections to Discovery Order
`
`8/10/2017
`
`82, 84, 101, 111,
`
`59
`
`112,113,116,
`
`117,118,172,
`
`181, 182, 189
`
`Apple’s Motion for Summary Judgment of No Willful
`
`8/31/2017
`
`190, 191, 237, 270
`
`Infringement
`
`Defendants’ Motion for Summary Judgment of
`— with Respect to US. Patent
`No. 7,809,373
`
`8/31/2017
`
`194, 196, 346, 377
`
`Evolved Wireless’s Motion for Summary Judgment
`
`8/31/2017
`
`195, 346, 377, 382
`
`regarding Defendants’ Affirmative Defenses Alleging
`
`Evolved Wireless’s Motion for Summary Judgment on
`
`8/31/2017
`
`195, 224, 239, 271
`
`Validity
`
`Evolved Wireless’s Motion for Summary Judgment on
`
`8/31/2017
`
`195, 221, 242,
`
`Defendant Apple’s FRAND-Related Counterclaim and
`Affirmative Defenses
`
`268, 306
`
`Defendants’ Motion for Sunnnary Judgment of Non—
`
`8/31/2017
`
`
`
`193, 223, 244, 274—--
`257, 258, 286,—--
`
`Evolved Wireless’s Motion to Exclude Apple’s
`
`11/21/2017
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`

`

`Case 1:15-cv-00542-JFB-SRF Document 464 Filed 02/19/19 Page 10 of 41 PageID #: 28831
`Case 1:15-cv-00542-JFB-SRF Document 464 Filed 02/19/19 Page 10 of 41 PageID #: 28831
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`_ mm
`Defendants’ Motion to Exclude Testimony of Dr.
`12/8/2017
`
`Apple’s Motion to Exclude Testimony of Dr. Putnam
`
`12/8/2017
`
`
`
`278, 322, 344, 391—--
`275, 276, 316,—--
`283, 284, 320, 342—--
`280, 281, 318, 341—--
`
`Evolved Wireless’s Daubert Motion to Exclude
`
`12/8/2017
`
`Defendants’ Motion to Exclude Testimony of Dr.
`
`12/8/2017
`
`Evolved Wireless’s Objections to Discovery Order
`
`3/2/2018
`
`307, 310, 314,
`
`325, 333, 356,
`
`361, 365
`
`Defendants’ Motion to Strike Evolved’s Untimely
`
`3/ 16/2018
`
`366, 367, 371, 374
`
`Declaration of Younghan Song
`
`Defendants’ Motion to Strike the Supplemental Expert
`
`8/3/2018
`
`396, 397, 401, 404
`
`Report of Dr. Putnam
`
`Evolved Wireless’s Motions in Limine
`
`8/30/2018
`
`415, 416, 417, 418
`
`Apple’s Motions in Limine
`
`8/30/2018
`
`411, 412, 413,
`
`414, 420, 421
`
`II.
`
`Federal Jurisdiction
`
`11.
`
`This action arises under the Patent Laws of the United States, 35 U.S.C. § 101 et
`
`seq., including 35 U.S.C. § 271. This Court has subject matter jurisdiction over Evolved’s
`
`claims pursuant to 28 U.S.C. §§ 1331, 1338(a). This Court has subject matter jurisdiction over
`
`Apple’s counterclaims pursuant to 28 U.S.C. §§ 1331, 1332, 1338(a), 1367, and 2201. Apple
`
`seeks declaratory relief pursuant to 28 U.S.C. §§ 2201-2202 and Rule 57 of the Federal Rules of
`
`Civil Procedure. Jurisdiction is not disputed.
`
`12.
`
`Venue is proper in the District of Delaware pursuant to 28 U.S.C. §§ 1391,
`
`§1400(b). Venue is not disputed.
`
`13.
`
`Evolved Wireless owns all right, title, and interest in the ’373 and ’236 patents.
`
`Standing is not disputed.
`
`

`

`Case 1:15-cv-00542-JFB-SRF Document 464 Filed 02/19/19 Page 11 of 41 PageID #: 28832
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`III.
`
`Facts which are admitted and require no proof
`
`14.
`
`The parties’ joint statement of facts which are admitted and require no proof is
`
`attached as Exhibit 1.
`
`IV.
`
`Issues of fact which remain to be litigated
`
`15.
`
`Evolved Wireless’s statement of issues of fact which remain to be litigated is
`
`attached as Exhibit 2. Apple’s statement of issues of fact which remain to be litigated is attached
`
`as Exhibit 3.
`
`V.
`
`Issues of law which remain to be litigated
`
`16.
`
`Evolved Wireless’s statement of issues of law which remain to be litigated is
`
`attached as Exhibit 4. Apple’s statement of issues of law which remain to be litigated is attached
`
`as Exhibit 5.
`
`VI.
`
`Exhibits to be offered at trial
`
`17.
`
`Evolved Wireless’s list of exhibits to be offered at trial, along with Apple’s
`
`objections, is attached as Exhibit 6.
`
`18.
`
`Apple’s list of exhibits to be offered at trial, along with Evolved Wireless’s
`
`objections, is attached as Exhibit 7.
`
`19.
`
`Evolved Wireless will begin its trial exhibit list numbering at PTX0501. Evolved
`
`Wireless’s demonstrative exhibits will be identified by numbers prefixed with “PD”. Apple will
`
`begin its trial exhibit list numbering at DTX3001. Apple’s demonstrative exhibits will be
`
`identified by numbers prefixed with “DD”. Agreed exhibits will be numbered beginning at
`
`JTX0001. The parties will file a joint trial exhibit list by Feb. 22, 2019.
`
`20.
`
`Each party may use an exhibit that is listed on the other party’s exhibit list, to the
`
`same effect as though it were listed on its own exhibit list, subject to all objections, including
`
`those that may arise by virtue of the change in the identity of the party sponsoring the exhibit. If
`
`6
`
`
`

`

`Case 1:15-cv-00542-JFB-SRF Document 464 Filed 02/19/19 Page 12 of 41 PageID #: 28833
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`such evidentiary objections are overruled, any such exhibit may be admitted into evidence. Any
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`exhibit, once admitted, may be used equally by each party. The listing of an exhibit by a party on
`
`its exhibit list does not waive any evidentiary or other objections to that exhibit by the listing
`
`party should the opposing party attempt to offer it into evidence.
`
`21.
`
`The parties agree that any exhibit identified in Exhibit 6 or Exhibit 7 and
`
`otherwise unobjected to may be used and published to the jury in opening statements by either
`
`party.
`
`22.
`
`Exhibits not objected to will be received into evidence by the operation of the
`
`Final Pretrial Order without the need for additional foundation testimony, provided they are
`
`shown to a witness.
`
`23.
`
`The parties agree that documents created and/or produced by a party or
`
`subpoenaed third party and thereafter produced by that party or subpoenaed third party in this
`
`case and identified in Exhibit 6 or Exhibit 7 to this Order are presumed prima facie genuine and
`
`authentic pursuant to Federal Rule of Evidence 901. The parties also agree that such documents
`
`are presumed to be records kept in the course of the regularly conducted activity of a business
`
`pursuant to Federal Rule of Evidence 803(6)(B). Nothing, however, shall prohibit a party from
`
`offering argument or evidence to rebut these presumptions or from otherwise seeking admittance
`
`of any documents or communications for purposes other than the truth of the stated matters.
`
`24.
`
`The parties agree that notice of a party’s intended use of blow-ups (enlargements)
`
`of trial exhibits and/or deposition testimony and of ballooning, excerption, highlighting, etc. of
`
`such exhibits and/or deposition testimony need not be given (and need not be exchanged as a
`
`demonstrative exhibit), as long as the party has identified its intent to use the trial exhibit and/or
`
`7
`
`
`

`

`Case 1:15-cv-00542-JFB-SRF Document 464 Filed 02/19/19 Page 13 of 41 PageID #: 28834
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`deposition testimony according to the provisions of this Order, and such ballooning, excerption,
`
`highlighting, etc., accurately reflects the content of the exhibit.
`
`25.
`
`Each party shall make available for inspection any physical exhibits by 12:00
`
`noon, Eastern Time, on March 21, 2019, or on a mutually agreeable date. Each party shall also
`
`provide, electronically, copies of any such proposed physical exhibits, as practicable. To the
`
`extent physical exhibits are to be offered, neither party waives any rights to object to the
`
`admissibility by virtue of this protocol.
`
`A.
`
`26.
`
`Demonstrative Exhibits
`
`The parties have agreed that the demonstrative exhibits the parties intend to use
`
`at trial do not need to be included on their respective lists of trial exhibits attached as Exhibit 6
`
`and Exhibit 7 to this order.
`
`27.
`
`The parties shall identify and exchange demonstrative exhibits to be used in
`
`opening statements by 3:00 p.m. Eastern Time the day before opening statements will be given.
`
`The parties shall exchange any objections to such demonstrative exhibits to be used in opening
`
`statements by 6:00 p.m. Eastern Time on the day they are exchanged, and shall promptly meet
`
`and confer on any such objections by 7:00 p.m. Eastern Time on the day they are exchanged.
`
`28.
`
`The parties shall identify and exchange demonstrative exhibits to be used by
`
`expert witnesses by 6:30 p.m. Eastern Time the day before the demonstrative will be used. The
`
`parties shall exchange any objections to such demonstrative exhibits to be used by expert
`
`witnesses by 8:30 p.m. Eastern Time on the day they are exchanged, and shall promptly meet
`
`and confer on any such objections by 10:00 p.m. Eastern Time on the day they are exchanged.
`
`29.
`
`The parties shall identify and exchange demonstrative exhibits to be used in
`
`closing arguments by 8:00 p.m. Eastern Time the day before the closing argument will be given.
`
`The parties shall exchange any objections to such demonstrative exhibits to be used in closing
`8
`
`
`

`

`Case 1:15-cv-00542-JFB-SRF Document 464 Filed 02/19/19 Page 14 of 41 PageID #: 28835
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`arguments by 9:30 p.m. Eastern Time on the day they are exchanged, and shall promptly meet
`
`and confer on any such objections by 10:00 p.m. Eastern Time on the day they are exchanged.
`
`30. With respect to demonstratives to be exchanged pursuant to the preceding
`
`paragraphs, the parties reserve foundation and relevance objections to demonstratives until their
`
`use at trial.
`
`31.
`
`The party seeking to use a demonstrative exhibit shall provide a color (if the
`
`original exhibit is in color) representation of the demonstrative in PDF format to the other side.
`
`For videos or animations, the party seeking to use the demonstrative exhibit shall provide it to
`
`the other side in digital interactive format, including, as applicable, flash format, PPT format,
`
`MPG, or other video format. For irregularly sized physical demonstrative exhibits, the party
`
`seeking to use it shall provide a color representation in PDF format, indicating to the other party
`
`its intended physical size at trial.
`
`32.
`
`The foregoing provisions do not apply to demonstratives created during testimony
`
`or to exhibits and demonstratives to be used for cross examination, neither of which need to be
`
`provided to the other side in advance of their use (without waiving either party’s right to object
`
`to the same).
`
`33.
`
`The parties agree that the above stated provisions regarding exchanges of exhibits
`
`do not require the disclosure of exhibits, including demonstratives, to be used solely for cross-
`
`examination or rebuttal.
`
`VII. Witnesses
`
`A.
`
`34.
`
`Presentation of witnesses at trial
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`The parties have prepared a good faith list of witnesses expected to be called at
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`trial, either live or by deposition, including: (1) a “will call” list; and (2) a “may call” list.
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`35.
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`Evolved Wireless’s list of witnesses to be called at trial is attached as Exhibit 8.
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`Apple’s list of witnesses to be called at trial is attached as Exhibit 9.
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`36.
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`If a party no longer expects to call a witness identified on the “will call” list, or if
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`a party expects to call live a witness on the “may call” witness list, that party shall provide the
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`other side notice of the change as soon as possible.
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`37.
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`A party shall identify the witnesses it intends to call to testify, whether it intends
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`to do so in person or by deposition, and the order in which they are to be called, by 6:30 P.M.
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`Eastern Time two (2) calendar days before they are to be called (e.g., witnesses for Monday
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`morning will be disclosed on Saturday evening).
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`38.
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`A party shall identify trial exhibits and provide demonstrative exhibits to be used
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`in connection with direct examination by 6:30 P.M. Eastern Time the calendar day before their
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`intended use (e.g., exhibits for Monday morning will be disclosed on Sunday evening). Any
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`objections will be provided no later than 8:30 P.M. Eastern Time that same day, and the parties
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`shall promptly meet and confer by 10:00 P.M. Eastern Time on any such objections.
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`39.
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`If good faith efforts to resolve the objections fail, the party objecting to the
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`exhibits shall notify the party sponsoring the exhibits as to which objections the objecting party
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`intends to bring to the Court’s attention on the following day, and the objecting party shall do so
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`prior to the witness being called to the witness stand. If the objection(s) is/are not sustained, the
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`time spent by the parties arguing as to the admissibility of an exhibit and time spent by the Court
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`deciding such issues shall be charged to the time available to each party for the presentation of
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`evidence in amounts to be determined by the Court.
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`40.
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`The parties agree that the Court shall order fact witnesses, including rebuttal
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`witnesses but excluding corporate representatives, excluded during witness testimony prior to
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`their testifying at trial. This exclusion does not apply to opening statements and closing
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`arguments. The parties agree that one party representative (who also may be a witness) from
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`each side may attend trial. The parties further agree that expert witnesses may attend trial.
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`B.
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`41.
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`Deposition designations
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`For those witnesses who may be called to testify by deposition, the parties have
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`designated specific page and line numbers of deposition testimony that they intend to read or
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`play back during their case-in-chief.2
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`42.
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`Exhibit 10 hereto contains Evolved Wireless’s list of deposition designations,
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`Apple’s objections to Evolved Wireless’s designations, Apple’s counter-designations, and
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`Evolved Wireless’s objections to Apple’s counter-designations. Exhibit 11 hereto contains
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`Apple’s list of deposition designations, Evolved Wireless’s objections to Apple’s designations,
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`Evolved Wireless’s counter-designations, and Apple’s objections to Evolved Wireless’s counter-
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`designations.
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`43.
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`This pretrial order contains the maximum universe of deposition designations,
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`counter-designations, and objections to admission of deposition testimony; none of the foregoing
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`shall be supplemented without approval of all parties or leave of the Court, on good cause
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`shown, or unless used exclusively for rebuttal or impeachment.
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`44.
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`The party intending to offer a witness by deposition shall provide the other party
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`with a list of final deposition designations (from the previously designated testimony) it intends
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`to introduce by 6:30 P.M. Eastern Time two days before the deposition testimony is expected to
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`2 Evolved Wireless reserves the right to serve additional deposition designations for the
`replacement witnesses that Apple has recently identified, Ravi Thakkar and Friedhelm
`Rodermund. Evolved Wireless reserves the right to serve additional deposition designations for
`any other replacement witnesses that Apple identifies prior to trial. Apple reserves the right to
`object to, and provide counter-designations for, any additional deposition designations that
`Evolved Wireless serves.
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`be read or played in Court. To the extent not already resolved by the Court, the other party will
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`provide a list of final objections and counter-designations by 6:30 P.M. Eastern Time one day
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`after such designations were provided. The parties shall then promptly meet and confer by 10:00
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`P.M. Eastern Time that same day to resolve any objections to the designated testimony.
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`45.
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`If there are objections that cannot be resolved, the objecting party shall, no later
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`than 10:00 P.M. Eastern Time one day before the witness is to be called at trial, submit to the
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`Court, on behalf of all parties: (i) a copy of the entire deposition testimony of the witness at
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`issue, clearly highlighting the designations, counter-designations, and pending objections; and
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`(ii) a cover letter clearly identifying the pending objections as well as a brief indication (i.e., no
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`more than one sentence per objection) of the basis for the objection and the offering party’s
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`response to it. The time required to argue and resolve any such objections will be charged to each
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`party’s time for the presentation of evidence in amounts to be determined by the Court.
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`46.
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`If a party designates deposition testimony, and the other party counter-designates,
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`then the designations and counter-designations will be read or played in chronological order.
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`Regardless of whether deposition testimony is read or played by video, the time available for
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`each party’s trial presentation shall be reduced by the length of its designations and counter-
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`designations for each deposition so r