Case 1:18-cv-01465-LPS Document 11-1 Filed 12/19/18 Page 1 of 11 PageID #: 73
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`BAYER HEALTHCARE LLC and BAYER
`HEALTHCARE PHARMACEUTICALS
`INC.,
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`TEVA PHARMACEUTICALS USA, INC.,
`et al.,
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`BAYER HEALTHCARE LLC and BAYER
`HEALTHCARE PHARMACEUTICALS
`INC.,
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`APOTEX INC. and APOTEX CORP.,
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`v.
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`v.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 16-1221 (LPS)
`CONSOLIDATED
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`C.A. No. 18-1465 (LPS)
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`Plaintiffs,
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`Defendants.
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`Plaintiffs,
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`Defendants.
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`[PROPOSED] AMENDED SCHEDULING AND CONSOLIDATION ORDER
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`This ___ day of _____ 2018, the Court having conducted a Case Management
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`Conference/Rule 16 scheduling and planning conference pursuant to Local Rule 16.1 and Judge
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`Stark’s Revised Procedures for Managing Patent Cases (which is posted at
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`http://www.del.uscourts.gov; see Chambers, Judge Leonard P. Stark, Patent Cases) on
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`______________________, and the parties having determined after discussion that these matters
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`cannot be resolved at this juncture by settlement, voluntary mediation, or binding arbitration;
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`IT IS ORDERED that:
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`Case 1:18-cv-01465-LPS Document 11-1 Filed 12/19/18 Page 2 of 11 PageID #: 74
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`1.
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`Case No. 16-cv-1221-LPS (consolidated) and Case No. 18-cv-1465-LPS are
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`hereby consolidated for all purposes, including for trial, pursuant to Fed. R. Civ. P. 42(a). All
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`filings shall be made only in Case No. 16-cv-1221-LPS (consolidated).
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`2.
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`Rule 26(a)(l) Initial Disclosures and E-Discovery Default Standard. The parties
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`have made their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) as to the
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`U.S. Patent No. 8,637,553 (the ’553 patent) and U.S. Patent No. 9,458,107 (“the ’107 patent).
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`Unless otherwise agreed to by the parties, the parties shall make their initial disclosures pursuant
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`to Federal Rule of Civil Procedure 26(a)(1) as to U.S. Patent No. 9,957,232 (“the ’232 patent”)
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`within ten (10) business days of the date of this Order.
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`3.
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`Joinder of Other Parties and Amendment of Pleadings. The deadline for motions
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`to join other parties or amend or supplement the pleadings with respect to the ’553 and ’107
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`patents has already passed. As to the ’232 patent, all motions to join other parties, and to amend
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`or supplement the pleadings, as well as any similar motions, shall be filed on or before January
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`11, 2019.
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`4.
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`Application to Court for Protective Order. On December 20, 2017, the Court
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`entered the parties’ Stipulated Protective Order in Case No. 16-cv-1221 (D.I. 32). That Order
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`shall govern the consolidated actions, including Case No. 18-cv-1465-LPS.
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`5.
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`Papers Filed Under Seal. In accordance with section G of the Administrative
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`Procedures Governing Filing and Service by Electronic Means, a redacted version of any sealed
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`document shall be filed electronically within seven (7) days of the filing of the sealed document.
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`Should any party intend to request to seal or redact all or any portion of a transcript of a
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`court proceeding (including a teleconference), such party should expressly note that intent at the
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`start of the court proceeding. Should the party subsequently choose to make a request for sealing
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`or redaction, it must, promptly after the completion of the transcript, file with the Court a motion
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`for sealing/redaction, and include as attachments (1) a copy of the complete transcript
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`highlighted so the Court can easily identify and read the text proposed to be sealed/redacted, and
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`(2) a copy of the proposed redacted/sealed transcript. With their request, the party seeking
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`redactions must demonstrate why there is good cause for the redactions and why disclosure of
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`the redacted material would work a clearly defined and serious injury to the party seeking
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`redaction.
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`6.
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`Courtesy Copies. Other than with respect to “discovery matters,” which are
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`governed by paragraph 8(g), and the final pretrial order, which is governed by paragraph 16, the
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`parties shall provide to the Court two (2) courtesy copies of all briefs and one (1) courtesy copy
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`of any other document filed in support of any briefs (i.e., appendices, exhibits, declarations,
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`affidavits etc.). This provision also applies to papers filed under seal.
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`7.
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`ADR Process. This matter is has already been referred to Magistrate Judge Burke
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`to explore the possibility of alternative dispute resolution. See C.A. 16-cv-1221-LPS, D.I. 22
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`(Order Setting Mediation Conference).
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`8.
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`Discovery. Unless otherwise ordered by the Court, the limitations on discovery
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`set forth in Local Rule 26.1 shall be strictly observed.
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`a.
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`Discovery Cut Off. The parties dispute whether the deadline for fact
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`discovery for the ’553 and ’107 patents has elapsed; to the extent there is an issue that requires
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`Court attention, the parties will raise it with the Court. All fact discovery in this case relating to
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`the ’232 patent shall be completed by April 15, 2019.
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`b.
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`Document and Sample Production. Production of documents and samples
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`relating to the ’232 patent shall be completed on a rolling basis and in time to complete fact
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`discovery by April 15, 2019.
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`c.
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`Requests for Admission. A maximum of ten (10) requests for admission
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`relating to the ’232 patent are permitted for each side.
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`d.
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`Interrogatories.
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`i.
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`A maximum of ten (10) interrogatories, including contention
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`interrogatories, relating to the ’232 patent are permitted for each
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`side.
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`ii.
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`The Court encourages the parties to serve and respond to
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`contention interrogatories early in the case. In the absence of
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`agreement among the parties, contention interrogatories, if filed,
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`shall first be addressed by the party with the burden of proof. The
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`adequacy of all interrogatory answers will be judged by the level
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`of detail each party provides; i.e., the more detail a party provides,
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`the more detail a party shall receive.
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`e.
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`Depositions.
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`i.
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`Limitation on Deposition Discovery. As to the ’232 patent, each
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`side shall be entitled to no more than four (4) depositions of fact
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`witnesses pursuant to Rule 30(b)(1), and one (1) deposition notice
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`pursuant to Rule 30(b)(6). If a deponent testifies wholly or
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`substantially through an interpreter, the party taking the deposition
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`shall be permitted, on a pro rata basis, 1.5 hours of deposition time
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`for each hour spent testifying through the interpreter.
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`ii.
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`Location of Depositions. The parties shall meet and confer
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`regarding the locations of depositions, taking into account
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`convenience for the deponent.
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`f.
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`Disclosure of Expert Testimony.
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`i.
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`Expert Reports. For the party who has the initial burden of proof
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`on the subject matter (for Plaintiffs, infringement, and for
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`Defendants, any invalidity defense(s)), the initial Federal Rule
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`26(a)(2) disclosure of expert testimony is due on or before May
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`15, 2019. The supplemental disclosure to contradict or rebut
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`evidence on the same matter identified by another party is due on
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`or before July 24, 2019. Reply expert reports limited to
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`Defendants’ responses on objective indicia of nonobviousness are
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`due on or before August 21, 2019. For clarity, in the event that
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`Defendants raise a defense based on obviousness or obviousness-
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`type double patenting, Defendants need not address evidence of
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`secondary considerations in its opening round of expert reports;
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`rather, secondary considerations shall be addressed by Plaintiffs in
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`the second round of expert reports, and Defendants shall respond
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`to such evidence in the reply round of expert reports. No other
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`expert reports will be permitted without either the consent of all
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`parties or leave of the Court. Along with the submissions of the
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`expert reports, the parties shall advise of the dates and times of
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`their experts’ availability for deposition. All expert depositions
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`shall be completed by September 27, 2019. There will not be
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`expert declarations filed in connection with motions briefing
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`(including case-dispositive motions).
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`iii. Objections to Expert Testimony. The parties agree that no Daubert
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`motions shall be filed.
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`g.
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`Discovery Matters and Disputes Relating to Protective Orders.
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`i.
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`Any discovery motion filed without first complying with the
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`following procedures will be denied without prejudice to renew
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`pursuant to these procedures.
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`ii.
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`Should counsel find, after good faith efforts - including verbal
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`communication among Delaware and Lead Counsel for all parties
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`to the dispute - that they are unable to resolve a discovery matter or
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`a dispute relating to a protective order, the parties involved in the
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`discovery matter or protective order dispute shall submit a joint
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`letter in substantially the following form:
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`Dear Judge Stark:
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`The parties in the above referenced matter
`write to request the scheduling of a discovery
`teleconference.
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`The following attorneys, including at least
`one Delaware Counsel and at least one Lead
`Counsel per party, participated in a verbal meet-
`and-confer (in person and/or by telephone) on the
`following date(s):
`_________________________
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`iii.
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`Delaware Counsel: __________________
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`Lead Counsel: ______________________
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`The disputes requiring judicial attention are
`listed below:
`[provide here a non-argumentative list of disputes
`requiring judicial attention]
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`On a date to be set by separate order, generally not less than forty-
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`eight (48) hours prior to the conference, the party seeking relief
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`shall file with the Court a letter, not to exceed three (3) pages,
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`outlining the issues in dispute and its position on those issues. On
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`a date to be set by separate order, but generally not less than
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`twenty-four (24) hours prior to the conference, any party opposing
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`the application for relief may file a letter, not to exceed three (3)
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`pages, outlining that party's reasons for its opposition.
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`iv.
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`Each party shall submit two (2) courtesy copies of its discovery
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`letter and any attachments.
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`v.
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`Should the Court find further briefing necessary upon conclusion
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`of the telephone conference, the Court will order it. Alternatively,
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`the Court may choose to resolve the dispute prior to the telephone
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`conference and will, in that event, cancel the conference.
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`9.
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`Motions to Amend.
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`a.
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`Any motion to amend (including a motion for leave to amend) a pleading
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`shall NOT be accompanied by an opening brief but shall, instead, be accompanied by a letter, not
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`to exceed three (3) pages, describing the basis for the requested relief, and shall attach the
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`proposed amended pleading as well as a “blackline” comparison to the prior pleading.
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`b.
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`Within seven (7) days after the filing of a motion in compliance with this
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`Order, any party opposing such a motion shall file a responsive letter, not to exceed five (5)
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`pages.
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`c.
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`Within three (3) days thereafter, the moving party may file a reply letter,
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`not to exceed two (2) pages, and, by this same date, the parties shall file a letter requesting a
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`teleconference to address the motion to amend.
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`10. Motions to Strike.
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`a.
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`Any motion to strike any pleading or other document shall NOT be
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`accompanied by an opening brief but shall, instead, be accompanied by a letter, not to exceed
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`three (3) pages, describing the basis for the requested relief, and shall attach the document to be
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`stricken.
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`b.
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`Within seven (7) days after the filing of a motion in compliance with this
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`Order, any party opposing such a motion shall file a responsive letter, not to exceed five (5)
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`pages.
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`c.
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`Within three (3) days thereafter, the moving party may file a reply letter,
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`not to exceed two (2) pages, and, by this same date, the parties shall file a letter requesting a
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`teleconference to address the motion to strike.
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`11.
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`Tutorial Describing the Technology and Matters in Issue. The parties agree that,
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`given the provisions of paragraph 12, no technology tutorial need be provided in this case
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`12.
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`Claim Construction Issue Identification. The claim construction process for the
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`’553 and ’107 patents has already concluded. As for the ’232 patent, the parties agree that any
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`claim construction issues, if any, can be resolved in the context of the evidence at trial and do not
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`require separate briefing or a Markman hearing.
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`13.
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`Supplementation. The supplementation deadline set forth in paragraph 15 of the
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`Scheduling Order in Case No. 16-cv-1221 (D.I. 20) for the ’553 and ’107 patents has already
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`passed. As for the ’232 patent, absent agreement among the parties, and approval of the Court,
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`Plaintiffs must finally supplement the identification of all accused products and identification of
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`asserted claims of the ’232 patent no later than March 1, 2019, and Defendants must finally
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`supplement all invalidity references no later than March 8, 2019.
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`14.
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`Case Dispositive Motions. There will be no dispositive motions without leave of
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`Court.
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`15.
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`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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`16.
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`Pretrial Conference. On October __, 2019, the Court will hold a pretrial
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`conference in Court with counsel beginning at 9 a.m. Unless otherwise ordered by the Court, the
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`parties should assume that filing the pretrial order satisfies the pretrial disclosure requirement of
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`Federal Rule of Civil Procedure 26(a)(3). The parties shall file with the Court the joint proposed
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`final pretrial order with the information required by the form of Revised Final Pretrial Order -
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`Patent, which can be found on the Court’s website (www.ded.uscourts.gov), five business days
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`before the pretrial conference. Unless otherwise ordered by the Court, the parties shall comply
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`with the timeframes set forth in Local Rule 16.3(d)(l)-(3) for the preparation of the joint
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`proposed final pretrial order.
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`The parties shall provide the Court two (2) courtesy copies of the joint proposed final
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`pretrial order and all attachments.
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`As noted in the Revised Final Pretrial Order - Patent, the parties shall include in their
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`joint proposed final pretrial order, among other things:
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`a.
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`a request for a specific number of hours for their trial presentations, as
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`well as a requested number of days, based on the assumption that in a typical bench trial day
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`there will be 6 to 7 hours of trial time;
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`b.
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`their position as to whether the Court should allow objections to efforts to
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`impeach a witness with prior testimony, including objections based on lack of completeness
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`and/or lack of inconsistency;
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`c.
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`their position as to whether the Court should rule at trial on objections to
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`expert testimony as beyond the scope of prior expert disclosures, taking time from the parties'
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`trial presentation to argue and decide such objections, or defer ruling on all such objections
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`unless renewed in writing following trial, subject to the proviso that a party prevailing on such a
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`post-trial objection will be entitled to have all of its costs associated with a new trial paid for by
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`the party that elicited the improper expert testimony at the earlier trial; and
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`d.
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`their position as to how to make motions for judgment as a matter of law,
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`whether it be immediately at the appropriate point during trial or at a subsequent break and
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`whether such motions may be supplemented in writing.
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`17. Motions in Limine. Motions in limine shall not be separately filed. All in limine
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`requests and responses thereto shall be set forth in the proposed pretrial order. Each SIDE shall
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`be limited to three (3) in limine requests, unless otherwise permitted by the Court. The in limine
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`request and any response shall contain the authorities relied upon; each in limine request may be
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`supported by a maximum of three (3) pages of argument and may be opposed by a maximum of
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`three (3) pages of argument, and the side making the in limine request may add a maximum of
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`one (1) additional page in reply in support of its request. If more than one party is supporting or
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`opposing an in limine request, such support or opposition shall be combined in a single three (3)
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`page submission (and, 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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`18.
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`Trial. This matter is scheduled for a 5-day bench trial beginning at 8:30 a.m. on
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`November __, 2019 [or shortly thereafter], with the subsequent trial days also beginning at
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`8:30 a.m. The trial day will end no later than 5:00 p.m. each day.
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`19.
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`Post-Trial Briefing. The parties will address the post-trial briefing schedule and
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`page limits in the proposed final pretrial order.
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`The parties reserve the right to revisit the deadlines and limitations set forth herein,
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`subject to the Court’s approval, in the event this case is consolidated with any other matters
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`involving different defendants.
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`________________________________
`UNITED STATES DISTRICT JUDGE
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`11
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