Case 1:16-cv-00290-MN Document 36 Filed 10/13/17 Page 1 of 12 PageID #: 1120
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`GODO KAISHA IP BRIDGE 1,
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`Plaintiff,
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`v.
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`OMNIVISION TECHNOLOGIES, INC., §
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`Defendant.
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`C.A. NO. 1:16-cv-00290-JFB-SRF
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`JURY TRIAL DEMANDED
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`[PROPOSED] SCHEDULING ORDER
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`This ___ day of ______ , 20__, the Court, having conducted an initial Rule 16 scheduling
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`and planning conference pursuant to Federal Rule of Civil Procedure 16(b) and Local Rule 16.1
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`on October 18, 2017, and the parties having determined after discussion that the matter cannot be
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`resolved at this juncture by settlement, voluntary mediation, or binding arbitration;
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`IT IS ORDERED that:
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`1.
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`Joinder of Other Parties and Amendment of Pleadings. All motions to join
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`other parties, and to amend or supplement the pleadings shall be filed on or before January 15,
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`2018.
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`2.
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`Discovery.1
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` All discovery in this case shall be initiated so that it will be
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`completed on or before November 6, 2018. Unless otherwise ordered by the Court, the
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`limitations on discovery set forth in Local Rule 26.1 shall be strictly observed.
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`1 Should the parties agree to modify the number of depositions under FED. R. CIV. P. 30,
`the number of allowed interrogatories under Rule 33 or limit the number of requests for
`production and/or requests for admission under Rules 34 and 36 respectively, they shall include
`the appropriate proposed provisions in this Order.
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`1
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`Case 1:16-cv-00290-MN Document 36 Filed 10/13/17 Page 2 of 12 PageID #: 1121
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`a.
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`Rule 26(a)(1) Initial Disclosures. Unless otherwise agreed to by the
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`parties, the parties shall make their initial disclosures pursuant to Federal Rule of Civil Procedure
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`26(a)(1) within ten (10) days of the date of this Order.
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`b.
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`E-Discovery Default Standard. If they have not already done so, the
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`parties are to review the Default Standard for Discovery of Electronic Documents, which is
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`posted on Magistrate Judge Fallon’s section of the Court’s website
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`(http://www.ded.uscourts.gov) under the “Guidelines” tab, and is incorporated herein by
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`reference.
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`c.
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`Document Production. Document production shall be completed on or
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`before August 28, 2018.
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`d.
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`Interrogatories. A maximum of 33 interrogatories shall be served by each
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`party to any other party.
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`e.
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`Contention Interrogatories. In the absence of agreement among the parties,
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`contention interrogatories, if filed, shall first be addressed by the party with the burden of proof
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`no later than the date established for the completion of document production, with the responsive
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`answers due within thirty (30) days thereof. The adequacy of all such interrogatory answers shall
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`be judged by the level of detail each party provides; i.e., the more detail a party provides, the
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`more detail a party shall receive.
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`f.
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`Requests for Admission. A maximum of 75 requests for admission shall
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`be served by each party to any other party, except that this limitation does not include requests
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`for admission to establish the authenticity of a document.
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`2
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`Case 1:16-cv-00290-MN Document 36 Filed 10/13/17 Page 3 of 12 PageID #: 1122
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`g.
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`Depositions.
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`i.
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`Timing. In the absence of agreement among the parties or by order
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`of the Court, no deposition (other than those noticed under Fed. R. Civ. P. 30(b)(6)) shall be
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`scheduled prior to the completion of document production.
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`ii.
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`Limitation on Hours for Deposition Discovery. Each side is limited
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`to a maximum of 7 hours per fact witness, for taking fact depositions.
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`iii.
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`Location of Depositions. Any party or representative (officer,
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`director, or managing agent) of a party filing a civil action in this district court must ordinarily be
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`required, upon request, to submit to a deposition at a place designated within this district.
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`Exceptions to this general rule may be made by order of the Court. A defendant who becomes a
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`counterclaimant, cross-claimant, or third-party plaintiff shall be considered as having filed an
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`action in this Court for the purpose of this provision.
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`h.
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`Disclosure of Expert Testimony.
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`i.
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`For the party who has the initial burden of proof on the subject
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`matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on or before
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`December 10, 2018.
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`ii.
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`The supplemental disclosure to contradict or rebut evidence on the
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`same matter identified by another party is due on or before January 25, 2019.
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`iii.
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`Reply expert reports from the party with the initial burden of proof
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`are due on or before February 15, 2019.
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`iv.
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`Depositions of experts shall be completed on or before April 24,
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`2019.
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`3
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`v.
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`No other expert reports will be permitted without either the consent
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`of all parties or leave of the Court. Along with the submissions of the expert reports, the parties
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`shall advise of the dates and times of their experts’ availability for deposition.
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`vi.
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`Objections to Expert Testimony. To the extent any objection to
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`expert testimony is made pursuant to the principles announced in Daubert v. Merrell Dow
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`Pharm., Inc., 509 U.S. 579 (1993), as incorporated in Federal Rule of Evidence 702, it shall be
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`made by motion no later than the deadline for dispositive motions set forth herein, unless
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`otherwise ordered by the Court.
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`i.
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`Fact Witnesses to be Called at Trial.
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`i. Within one (1) month following the close of expert discovery, each party
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`shall serve on the other parties a list of each fact witness (including any
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`expert witness who is also expected to give fact testimony), who has previously been disclosed
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`during discovery and that it intends to call at trial.
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`ii. Within one (1) month of receipt of such fact witness list, each
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`party shall serve a list of each rebuttal fact witness that it intends to call at trial.
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`iii.
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`The parties shall have the right to depose any such fact witnesses
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`who have not previously been deposed in this case. Such deposition shall be held within one (1)
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`month after service of the list of rebuttal fact witnesses and shall be limited to twenty (20) hours
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`per side in the aggregate unless extended by agreement of the parties or upon order of the court
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`upon good cause shown.
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`4
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`Case 1:16-cv-00290-MN Document 36 Filed 10/13/17 Page 5 of 12 PageID #: 1124
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`j.
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`Discovery Matters and Disputes Relating to Protective Orders.
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`i.
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`Should counsel find they are unable to resolve a discovery matter
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`or those other matters covered by this paragraph2, the parties involved shall contact chambers at
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`(302) 573- 4551 to schedule a telephone conference.
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`ii.
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`After the parties have contacted chambers and have scheduled a
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`teleconference, the moving party or parties should file a “[Joint] Motion for Teleconference to
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`Resolve [Protective Order or Discovery] Dispute.” The suggested text for this motion can be
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`found in Magistrate Judge Fallon’s section of the Court’s website in the “Forms” tab, under the
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`heading “Discovery Matters–Motion to Resolve Discovery Disputes.”
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`iii. Not less than seventy-two (72) hours prior to the conference,
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`excluding weekends and holidays, the party seeking relief shall file with the Court a letter, not to
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`exceed four (4) pages, in no less than 12-point font, outlining the issues in dispute and its
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`position on those issues. (The Court does not seek extensive argument or authorities at this point;
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`it seeks simply a statement of the issue to be addressed and a summary of the basis for the
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`party’s position on the issue.)
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`iv.
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`Not less than forty-eight (48) hours prior to the conference,
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`excluding weekends and holidays, any party opposing the application for relief may file a letter,
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`not to exceed four (4) pages, in no less than 12-point font, outlining that party’s reason for its
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`opposition.
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`v.
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`Two (2) courtesy copies of the letters are to be hand delivered to
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`the Clerk’s Office within one hour of e-filing.
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`2 Counsel are expected to verbally discuss the issues/concerns before seeking the Court’s
`intervention.
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`5
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`vi.
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`Should the Court find further briefing necessary upon conclusion
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`of the telephone conference, the Court will order it.
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`vii. Disputes or issues regarding protective orders, or motions for
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`extension of time for briefing case dispositive motions which are related to discovery matters are
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`to be addressed in accordance with this paragraph.
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`viii. No motions to compel or motions for protective order shall be filed
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`absent approval of the Court. Absent express approval of the Court following a discovery
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`conference, no motions pursuant to Fed. R. Civ. P. 37 shall be filed.
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`k.
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`Initial Discovery in Patent Litigation.3
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`i.
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`Initial Identification of Accused Products. By or on November
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`3, 2017, the plaintiff shall specifically identify the accused products and the asserted claim(s) they
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`allegedly infringe, and produce the file history for the asserted patent.
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`ii.
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`Production of Core Technical Documents. By or on December
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`3, 2017, the defendant shall produce to plaintiff the core technical documents related to the
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`accused product(s), including but not limited to operation manuals, product literature, schematics,
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`and specifications.
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`iii.
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`Initial Infringement Contentions. By or on January 22, 2018,
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`plaintiff shall produce to defendant an initial claim chart relating the accused products to the
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`asserted claims each product allegedly infringes.
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`3 The deadlines in this section replace those in the Court’s Default Standard for Discovery,
`Including Discovery of Electronically Stored Information (“ESI”). As these disclosures are
`“initial,” each party shall be permitted to supplement.
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`6
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`Case 1:16-cv-00290-MN Document 36 Filed 10/13/17 Page 7 of 12 PageID #: 1126
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`iv.
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`Initial Invalidity Contentions. By or on March 5, 2018,
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`defendant shall produce to plaintiff initial invalidity contentions for each asserted claim, as well
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`as the related invalidating references (e.g., publications, manuals and patents).
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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 twenty (20) days from the date of
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`this Order. Should counsel be unable to reach an agreement on a proposed form of protective
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`order, counsel must follow the provisions of Paragraph 2(j) above.
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`Any proposed protective order should include the following paragraph:
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`Other Proceedings. By entering this order and limiting the disclosure
`of information in this litigation, 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 in other proceedings 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 party may have an opportunity to appear and be heard in the
`other proceeding.
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`Papers Filed Under Seal. When filing papers under seal, counsel should deliver
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`4.
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`to the Clerk an original and one (1) copy of the papers. In accordance with section G of the
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`Administrative Procedures Governing Filing and Service by Electronic Means, a redacted
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`version of any sealed document shall be filed electronically within seven (7) days of the filing of
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`the sealed document.
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`5.
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`Courtesy Copies. The parties shall provide to the Court two (2) courtesy copies
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`of all briefs and one (1) courtesy copy of any other document filed in support of any briefs (i.e.,
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`7
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`Case 1:16-cv-00290-MN Document 36 Filed 10/13/17 Page 8 of 12 PageID #: 1127
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`appendices, exhibits, declarations, affidavits, etc.). This provision also applies to papers filed
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`under seal.
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`6.
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`ADR Process. This matter will be discussed during the Rule 16 scheduling
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`conference.
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`7.
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`Interim Status Report. On April 3, 2018, counsel shall submit a joint
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`interim report to the Court on the nature of the matters in issue and the progress of discovery to
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`date.
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`8.
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`Status Conference. On May 8, 2018, or at the Court’s convenience, the Court
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`will hold a Rule 16(a), (b) and (c) conference by telephone with counsel beginning at 9:00 a.m.
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`Plaintiff’s counsel shall initiate the telephone call. At the time of this conference, counsel shall
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`also be prepared to discuss the progress, if any, of settlement discussions and shall be prepared to
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`discuss the possibility of setting up a settlement conference with the Court, counsel and their
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`clients. If all parties agree that there is nothing to report, nor anything to add to the interim status
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`report or to this order, they shall notify the Court in writing before the conference is scheduled to
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`occur, and the conference will be taken off of the Court’s calendar.
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`9.
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`Claim Construction.
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`i.
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`If the Court does not find that a limited earlier claim construction would
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`be helpful in resolving the case, on April 25, 2018, the parties shall exchange a preliminary list
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`of claim term(s)/phrases they believe need construction. By May 25, 2018 the parties shall
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`exchange proposed preliminary constructions and identify extrinsic evidence upon which they
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`intend to rely. These documents will not be filed with the Court.
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`ii.
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`Subsequent to exchanging that list, the parties will meet and confer to
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`prepare a Joint Claim Construction Chart to be submitted on June 7, 2018.
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`iii. Unless otherwise ordered by the Court, the parties shall provide the Court,
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`no later than the date on which their opening claim construction briefs are due, a tutorial on the
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`technology at issue. In that regard, the parties may separately or jointly submit a DVD of not
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`more than 30 minutes. The tutorial should focus on the technology in issue and should not be
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`used to argue the parties’ claims construction contentions. The parties may choose to file their
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`tutorial(s) under seal, subject to any protective order in effect. Each party may comment, in
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`writing (in no more than 5 pages) on the opposing party’s tutorial. Any such comment shall be
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`filed no later than the date on which the answering claim construction briefs are due. As to the
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`format selected, the parties should confirm the Court’s technical abilities to access the
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`information contained in the tutorial.
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`iv.
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`The parties shall contemporaneously submit opening briefs on claim
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`construction issues on July 12, 2018.
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`v.
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`The parties’ answering/responsive briefs shall be contemporaneously
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`submitted on August 3, 2018.
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`vi.
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`No reply briefs or supplemental papers on claim construction shall be
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`submitted without leave of the Court. Local Rule 7.1.3(a)(4) shall control the page limitation for
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`initial (opening) and responsive (answering) briefs.
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`vii. Beginning at 9:00 a.m. on September 5, 2018, or at the Court’s
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`convenience, the Court will hear evidence and argument on claim construction. The parties shall
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`notify the Court, by joint letter submission, no later than the date on which their answering claim
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`construction briefs are due: (i) whether they request leave to present testimony at the hearing;
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`and (ii) the amount of time they would like to have allocated to them for the hearing.
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`9
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`viii. The Court shall issue its decision on claim construction on October 25,
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`2018, or at the Court’s convenience.
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`10. Case Dispositive Motions. All case dispositive motions, an opening brief, and
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`affidavits, if any, in support of the motion shall be served and filed on or before May 8, 2019.
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`Briefing will be presented pursuant to the Court’s Local Rules, except as modified during the
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`scheduling conference. If the matter is scheduled for a bench trial, no case dispositive motions
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`shall be filed without prior authorization of the Court. No case-dispositive motion under Rule 56
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`may be filed more than ten (10) days before the above date without leave of the Court.
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`Any reference to exhibits in the briefs must refer to the specific pages of the exhibit proffered
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`in support of a party’s argument. If the exhibit is a deposition, both the page and line numbers
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`must be specified.4
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`11. Applications by Motion. Except as otherwise specified herein, any application to
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`the Court shall be by written motion filed with the Clerk. Any non-dispositive motion should
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`contain the statement required by Local Rule 7.1.1.
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`12.
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`Pretrial Conference. On October 8, 2019, or at the Court’s convenience, the
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`Court will hold a Pretrial Conference in Court with counsel beginning at 9:00 a.m. Unless
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`otherwise ordered by the Court, the parties should assume that filing the pretrial order satisfies
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`the pretrial disclosure requirement of Federal Rule of Civil Procedure 26(a)(3). The parties shall
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`file with the Court the joint proposed final pretrial order with the information required by the
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`form of Final Pretrial Order which accompanies this Scheduling Order on or before August 22,
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`2019. Unless otherwise ordered by the Court, the parties shall comply with the time frames set
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`4 For example, a reference to an exhibit that refers to the entire document will not be accepted
`and is not consistent with this provision.
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`10
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`Case 1:16-cv-00290-MN Document 36 Filed 10/13/17 Page 11 of 12 PageID #: 1130
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`forth in Local Rule 16.3(d)(1)-(3) for the preparation of the joint proposed final pretrial order.
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`The Court will advise the parties at or before the above-scheduled pretrial conference whether an
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`additional pretrial conference will be necessary.
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`13. 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 party shall
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`be limited to five (5) 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 party 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, if the moving party, a single one (1) page reply), unless otherwise ordered
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`by 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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`14.
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`Jury Instructions, Voir Dire, and Special Verdict Forms. Where a case is to be
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`tried to a jury, pursuant to Local Rules 47 and 51 the parties should file joint (i) proposed voir
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`dire, (ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict forms
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`three (3) full business days before the final pretrial conference. That submission shall be
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`accompanied by a computer diskette containing each of the foregoing four (4) documents in
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`WordPerfect format.
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`15. Trial. This matter is scheduled for a 10-12-day jury trial beginning at 9:30 a.m.
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`on October 21, 2019, or at the Court’s convenience, with the subsequent trial days beginning at
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`11
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`Case 1:16-cv-00290-MN Document 36 Filed 10/13/17 Page 12 of 12 PageID #: 1131
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`9:00 a.m. The trial will be timed, as counsel will be allocated a total number of hours in which to
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`present their respective cases.
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`____________________________________
`UNITED STATES MAGISTRATE JUDGE
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`12
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