Case 1:17-cv-00770-RGA Document 28 Filed 07/23/21 Page 1 of 13 PageID #: 2326
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`WIRTGEN AMERICA, INC.
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`Plaintiff,
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`v.
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`CATERPILLAR INC.
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`Defendant.
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`C.A. No. 17-770-RGA
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`JURY TRIAL DEMANDED
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` SCHEDULING ORDER
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`July
`23
`This ___ day of ____________, 2021, the Court having waived an initial Rule 16
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`scheduling and planning conference pursuant to Local Rule 16.1(b), and the parties1 having
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`determined after discussion that the matter cannot be resolved at this juncture by settlement,
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`voluntary mediation, or binding arbitration;
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`IT IS ORDERED that:
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`1.
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`Rule 26(a)(1) Initial Disclosures. Unless otherwise agreed to by the parties, the
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`parties shall make their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) on
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`October 21, 2021.
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`2.
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`Joinder of Other Parties and Amendments of Pleadings. All motions to join other
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`parties and to amend or supplement the pleadings shall be filed on or before August 11, 2022.
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`3.
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`Discovery.
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`a.
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`Coordination of Fact Discovery. Due to the overlap in the above-captioned
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`case with In the Matter of Certain Road Milling Machines and Components Thereof, Investigation
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`1 “Plaintiff(s),” as used herein, refers to a party that is asserting a patent claim or counterclaim.
`“Defendant(s),” as used herein, refers to a party accused of infringing a patent.
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`

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`Case 1:17-cv-00770-RGA Document 28 Filed 07/23/21 Page 2 of 13 PageID #: 2327
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`No. 337-TA-1067 (Int’l Trade Comm’n) (“the 1067 Investigation”), without the parties waiving
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`any discovery rights under the Federal Rules of Civil Procedure or otherwise, it is ordered that all
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`discovery produced or taken in the 1067 Investigation can be used as if produced or taken in the
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`above-captioned case.
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`b.
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`Fact Discovery Cut Off. All fact discovery in this case shall be initiated so
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`that it will be completed on or before February 9, 2023.
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`c.
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`Document Production. Document production shall be substantially
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`complete by October 13, 2022.
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`d.
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`Requests for Admission. A maximum of 100 requests for admission are
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`permitted for each side, excluding requests exclusively for document authentication purposes.
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`e.
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`Interrogatories. A maximum of 25 interrogatories, including contention
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`interrogatories, are permitted for each side.
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`f.
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`Depositions.
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`i.
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`Limitation on Hours for Deposition Discovery. Each side is limited
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`to a total of 100 hours of taking testimony of fact witnesses by deposition upon oral examination.
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`ii.
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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 or by agreement of the parties.
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`A defendant who becomes a counterclaimant, cross-claimant, or third-party plaintiff shall be
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`considered as having filed an action in this Court for the purposes of this provision.
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`g.
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`Discovery Matters and Disputes Relating to Protective Orders. Should
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`counsel find they are unable to resolve a discovery matter or a dispute relating to a protective order,
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`2
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`the parties involved in the discovery matter or protective order dispute shall contact the Court’s
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`Case Manager to schedule an in-person conference/argument. Unless otherwise ordered, by no
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`later than seven business days prior to the conference/argument, any party seeking relief shall file
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`with the Court a letter, not to exceed three pages, outlining the issues in dispute and its position on
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`those issues. By no later than five business days prior to the conference/argument, any party
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`opposing the application for relief may file a letter, not to exceed three pages, outlining that party’s
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`reasons for its opposition. A party should include with its letter a proposed order with a detailed
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`issue-by-issue ruling such that, should the Court agree with the party on a particular issue, the
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`Court could sign the proposed order as to that issue, and the opposing party would be able to
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`understand what it needs to do, and by when, to comply with the Court’s order. Any proposed
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`order
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`shall
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`be
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`e-mailed,
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`in Word
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`format,
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`simultaneously with
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`filing
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`to
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`rga_civil@ded.uscourts.gov.
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`If a discovery-related motion is filed without leave of the Court, it will be denied
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`without prejudice to the moving party’s right to bring the dispute to the Court through the discovery
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`matters procedures set forth in this Order.
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`h.
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`Miscellaneous Discovery Matters.
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`i.
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`ESI Disclosures.
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`1.
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`On or before January 13, 2022, the parties shall exchange
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`Initial Disclosures pursuant to Paragraph 3 of the Default
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`Standard
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`for Discovery,
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`Including Discovery of
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`Electronically Stored Information (“ESI”) (“Delaware
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`Default Standard”).
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`2.
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`On or before January 20, 2022, pursuant to Paragraph 5(b)
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`3
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`of the Delaware Default Standard, the parties shall disclose
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`ten (10) search terms that they plan to use per custodian.
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`3.
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`On or before January 27, 2022, pursuant to Paragraph 5(b)
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`of the Delaware Default Standard, the parties shall disclose,
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`absent a showing of good cause, no more ten (10) additional
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`search terms that they request the opposing party use in its
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`electronic search.
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`ii.
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`Patent Disclosures.
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`1.
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`On or before October 28, 2021, Plaintiffs shall specifically
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`identify the accused products and asserted patent(s) Defendants allegedly infringe and produce the
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`file history for each asserted patent.
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`2.
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`On or before November 10, 2021, Defendants shall produce
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`to Plaintiffs the core technical documents related to the accused product(s).
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`3.
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`On or before December 2, 2021, Plaintiffs shall serve on
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`Defendants an initial claim chart relating each accused product to the asserted claims each product
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`allegedly infringes.
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`4.
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`On or before December 23, 2021, Defendants shall serve on
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`Plaintiffs their initial invalidity contentions for each asserted claims, as well as the related
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`invalidating references.
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`5.
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`Within forty-five (45) days of the Court’s issuance of its
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`Claim Construction order and by no later than March 2, 2023, Plaintiffs shall provide final
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`infringement contentions.
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`6.
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`Within ninety (90) days of the Court’s issuance of its Claim
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`4
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`Construction order and by no later than April 13, 2023, Defendants shall provide final invalidity
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`contentions.
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`iii.
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`No later than one hundred and twenty (120) days after CAT files its
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`answer, the parties shall file a statement with the Court that identifies any other pending or
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`completed litigation including IPRs involving one or more of the asserted patents. In this
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`statement, Plaintiff should advise whether it expects to (1) amend the complaint to add additional
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`patents and (2) institute any further litigation in this or other Districts within the next year. In this
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`statement, Defendant should advise whether it expects to (1) amend the complaint to add additional
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`patents and (2) institute any further litigation in this or other Districts within the next year. Finally,
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`in this statement, the parties should indicate whether they expect to file challenges to the patents
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`at issue in this case with the United States patent office and, if so, when.
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`iv.
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`If one or more of the patents-in-suit have already been licensed or
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`the subject of a settlement agreement, either (1) Plaintiffs shall provide the licenses and/or
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`settlement agreements to Defendants no later than the time of the initial Rule 16(b) scheduling
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`conference, or (2) if Plaintiffs requires a Court Order to make such disclosures, Plaintiffs shall file
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`any necessary proposed orders no later than twenty-four hours before the initial Rule 16(b)
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`scheduling conference. Plaintiffs shall represent in the scheduling order that it is complying or has
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`complied with this requirement. All parties shall be prepared to discuss at the conference what
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`their preliminary views of damages are.
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`4.
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`Application to Court for Protective Order. The parties will submit a proposed
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`Protective Order on November 10, 2021 that is no less restrictive than that governing the ITC
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`investigation captioned In the Matter of Certain Road Milling Machines and Components Thereof,
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`Inv. No. 337-TA-1067. Should counsel be unable to reach an agreement on a proposed form of
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`5
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`order, counsel will follow the provisions of Paragraph 3(g) above.
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`Any proposed protective order will include the following paragraph:
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`Other Proceedings. By entering this order and limiting the disclosure
`of information in this case, the Court does not intend to preclude
`another court from finding that information may be relevant and
`subject to disclosure in another case. Any person or party subject to
`this order who becomes subject to a motion to disclose another
`party's information designated as confidential pursuant to this order
`shall promptly notify that party of the motion so that the party may
`have an opportunity to appear and be heard on whether that
`information should be disclosed.
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`5.
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`Papers Filed Under Seal. When filing papers under seal, counsel shall deliver to the
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`Clerk the required number of copies as directed in paragraph 6. A redacted version of any sealed
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`document shall be filed electronically within seven days of the filing of the sealed document.
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`6.
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`Courtesy Copies. The parties shall provide to the Court two courtesy copies of all
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`briefs and one courtesy copy of any other document filed in support of any briefs (i.e., appendices,
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`exhibits, declarations, affidavits, etc.). This provision also applies to papers filed under seal.
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`7.
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`Claim Construction Issue Identification. On or before July 14, 2022, the parties
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`shall exchange a list of those claim term(s)/phrase(s) that they believe need construction and their
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`proposed claim construction of those term(s)/phrase(s). This document will not be filed with the
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`Court. Subsequent to exchanging that list, the parties will meet and confer to prepare separate Joint
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`Claim Construction Charts for each side’s asserted patents to be filed no later than July 28, 2022.
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`The Joint Claim Construction Charts, in Word format, shall be e-mailed simultaneously with filing
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`to rga_civil@ded.uscourts.gov. The parties’ Joint Claim Construction Charts should identify for
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`the Court the term(s)/phrase(s) of the claim(s) in issue and should include each party’s proposed
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`construction of the disputed claim language with citation(s) only to the intrinsic evidence in
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`support of their respective proposed constructions. A copy of the patent(s) in issue as well as those
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`6
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`portions of the intrinsic record relied upon shall be submitted with this Joint Claim Construction
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`Charts. In these joint submissions, the parties shall not provide argument.
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`8.
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`Claim Construction Briefing2. Each side shall serve, but not file, its opening brief
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`concerning its patents, not to exceed 5,000 words, on September 1, 2022. The parties shall serve,
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`but not file, their answering briefs, not to exceed 7,500 words, on September 22, 2022. The parties
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`shall serve, but not file, their reply briefs, not to exceed 5,000 words, on October 13, 2022. The
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`parties shall serve, but not file, their sur-reply briefs, not to exceed 2,500 words on October 27,
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`2022. No later than November 17, 2022, the parties shall file Joint Claim Construction Briefs. The
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`parties shall copy and paste their unfiled briefs into two briefs (one for each side’s asserted
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`patents), with their positions on each claim term in sequential order, in substantially the form
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`below.
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`JOINT CLAIM CONSTRUCTION BRIEF
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`I.
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`II.
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`III.
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`Representative Claims
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`Agreed-upon Constructions
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`Disputed Constructions
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`A.
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`[TERM 1]3
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`1.
`2.
`3.
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`Plaintiff’s Opening Position
`Defendants’ Answering Position
`Plaintiff’s Reply Position
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`2 As each brief is written and provided to the opposing party, the individual responsible for
`verifying the word count will represent to the other party that it has so verified and by what means.
`These verifications should not be provided to the Court unless a dispute arises about them. Pictures,
`Figures copied from the patent, and other illustrations do not count against the word limit. Plaintiffs
`should include with their opening brief one or more representative claims with the disputed terms
`italicized. Should Defendants want to add additional representative claims, Defendants may do so.
`The representative claims and the agreed-upon claim constructions do not count against word
`limits.
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`3 For each term in dispute, there should be a table or the like setting forth the term in dispute
`and the parties’ competing constructions. The table does not count against the word limits.
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`7
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`4.
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`Defendant’s Sur-Reply Position
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`B.
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`[TERM 2]
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`1.
`2.
`3.
`4.
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`Plaintiff’s Opening Position
`Defendants’ Answering Position
`Plaintiff’s Reply Position
`Defendant’s Sur-Reply Position
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`Etc. The parties need not include any general summaries of the law relating to claim construction.
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`If there are any materials that would be submitted in an appendix, the parties shall submit them in
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`a Joint Appendix.
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`9.
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`3
`Hearing on Claim Construction. Beginning at 9:00 a.m. on January ____, 2023, the
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`Court will hear argument on claim construction. Absent prior approval of the Court (which, if it is
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`sought, must be done so by joint letter submission no later than the date on which the answering
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`claim construction briefs are due), the parties shall not present testimony at the argument, and the
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`argument shall not exceed a total of three hours. When the Joint Claim Construction Briefs are
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`filed, the parties shall simultaneously file a motion requesting the above-scheduled claim
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`construction hearing, state that the briefing is complete, and state how much total time the parties
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`are requesting that the Court should allow for the argument.
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`10.
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`Disclosure of Expert Testimony.
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`a.
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`Expert Reports. For the party who has the initial burden of proof on the
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`subject matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on or before
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`April 27, 2023. The supplemental disclosure to contradict or rebut evidence on the same matter
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`identified by another party is due on or before May 25, 2023. Reply expert reports from the party
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`with the initial burden of proof are due on or before June 22, 2023. No other expert reports will be
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`permitted without either the consent of all parties or leave of the Court. If any party believes that
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`an expert report does not comply with the rules relating to timely disclosure or exceeds the scope
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`8
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`of what is permitted in that expert report, the complaining party must notify the offending party
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`within one week of the submission of the expert report. The parties are expected to promptly try
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`to resolve any such disputes, and, when they cannot reasonably be resolved, use the Court’s
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`Discovery Dispute Procedure or the complaint will be waived.
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`Along with the submissions of the expert reports, the parties shall advise of the
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`dates and times of their experts’ availability for deposition. Depositions of experts shall be
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`completed on or before August 10, 2023.
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`b.
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`Objections to Expert Testimony. To the extent any objection to expert
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`testimony is made pursuant to the principles announced in Daubert v. Merrell Dow Pharm., Inc.,
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`509 U.S. 579 (1993), as incorporated in Federal Rule of Evidence 702, it shall be made by motion
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`no later than the deadline for dispositive motions set forth herein, unless otherwise ordered by the
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`Court.
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`11.
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`Case Dispositive Motions. All case dispositive motions shall be served and filed on
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`or before September 14, 2023. All case dispositive motion answering briefs shall be served and
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`filed on or before October 5, 2023. All case dispositive motion reply briefs shall be served and
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`filed on or before October 19, 2023. No case dispositive motion under Rule 56 may be filed more
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`than ten days before the above date without leave of the Court. Absent an order of the Court upon
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`a showing of good cause, each side is limited to one forty-page opening brief, one forty-page
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`answering brief, and one twenty-page reply brief for all of its Daubert and case dispositive motions.
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`12.
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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. Any non-dispositive motion should contain the statement
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`required by Local Rule 7.1.1.
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`13.
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`Pretrial Conference. On February 2, 2024, the Court will hold a Rule 16(e)(c) final
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`9
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`pretrial conference in Court with counsel beginning at 8:30 a.m. The parties shall file a joint
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`proposed final pretrial order in compliance with Local Rule 16.3(c) no later than 5:00 p.m. on the
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`fourth business day before the date of the final pretrial conference. Unless otherwise ordered by
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`the Court, the parties shall comply with the timeframes set forth in Local Rule 16.3(d) for the
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`preparation of the proposed joint final pretrial order.
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`14. Motions in Limine. Motions in limine shall be separately filed, with each motion
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`containing all the argument described below in one filing for each motion. Any supporting
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`documents in connection with a motion in limine shall be filed in one filing separate from the
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`motion in limine. Each party shall be limited to three in limine requests, unless otherwise permitted
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`by the Court. The in limine request and any response shall contain the authorities relied upon; each
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`in limine request may be supported by a maximum of three pages of argument and may be opposed
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`by a maximum of three pages of argument, and the party making the in limine request may add a
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`maximum of one additional page in reply in support of its request. If more than one party is
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`supporting or opposing an in limine request, such support or opposition shall be combined in a
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`single three-page submission (and, if the moving party, a single one-page reply). No separate
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`briefing shall be submitted on in limine requests, unless otherwise permitted by the Court.
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`15.
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`Jury Instructions, Voir Dire, and Special Verdict Forms. Where a case is to be tried
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`to a jury, pursuant to Local Rules 47.1(a)(2) and 51.1, the parties should file (i) proposed voir dire,
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`(ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict forms no later
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`than 6:00 p.m. on the fourth business day before the date of the final pretrial conference. Areas of
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`dispute shall be identified as narrowly as possible and in a manner that makes it readily apparent
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`what the dispute is. The parties shall submit simultaneously with filing each of the foregoing four
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`documents in Word format to rga_civil@ded.uscourts.gov.
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`10
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`16.
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`Trial. This matter is scheduled for a 5-day jury trial beginning at 9:30 a.m. on Feb.
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`12, 2024, with the subsequent trial days beginning at 9:30 a.m. Until the case is submitted to
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`the jury for deliberations, the jury will be excused each day at 5:00 p.m. The trial will be timed,
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`and counsel will be allocated a total number of hours in which to present their respective cases.
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`17.
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`ADR Process. This matter is referred to a magistrate judge to explore the possibility
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`of alternative dispute resolution. This matter is referred to a magistrate judge to handle all
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`discovery disputes including any that arise in connection with expert reports. The parties agree to
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`hold a settlement conference with the magistrate judge by February 10, 2022.
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`/s/ Richard G. Andrews
`__________________________________________
`UNITED STATES DISTRICT JUDGE
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`11
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`Appendix A
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`Event
`Plaintiff Files Amended Complaint
`Defendant Files Answer
`Rule (26)(a)(1) Disclosures
`Identification of Accused Products/Asserted
`Patents
`Core Technical Document Production
`Protective Order
`Initial Infringement Contentions
`Initial Invalidity Contentions
`Delaware Default Standard Para. 3
`Disclosures
`Delaware Default Standard Para. 5(b) –
`Disclosure of Search Terms
`Delaware Default Standard Para. 5(b) –
`Disclosure of Requested Search Terms by
`Opposing Party
`Deadline to Hold Settlement Conference with
`Magistrate Judge
`Identification of Terms for
`Construction/Proposed Construction
`Joint Claim Construction Chart
`Joinder of Other Parties / Amendment of
`Pleadings
`Opening CC Briefs
`Answering CC Briefs
`Substantial Completion Deadline
`Reply CC Briefs
`Sur-Reply CC Briefs
`Joint Claim Construction Briefs
`Claim Construction Hearing
`Fact Discovery Deadline
`Final Infringement Contentions
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`Final Invalidity Contentions
`
`Opening Expert Reports
`Rebuttal Expert Reports
`Reply Expert Reports
`Expert Discovery Deadline
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`Deadline
`September 2, 2021
`October 14, 2021
`October 21, 2021
`October 28, 2021
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`November 10, 2021
`November 10, 2021
`December 2, 2021
`December 23, 2021
`January 13, 2022
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`January 20, 2022
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`January 27, 2022
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`February 10, 2022
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`July 14, 2022
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`July 28, 2022
`August 11, 2022
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`September 1, 2022
`September 22, 2022
`October 13, 2022
`October 13, 2022
`October 27, 2022
`November 17, 2022
`January __, 2023
`February 9, 2023
`Within forty-five (45) days of the Court’s
`issuance of its Claim Construction order and by
`no later than March 2, 2023
`Within ninety (90) days of the Court’s issuance of
`its Claim Construction order and by no later than
`April 13, 2023
`April 27, 2023
`May 25, 2023
`June 22, 2023
`August 10, 2023
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`

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`Case 1:17-cv-00770-RGA Document 28 Filed 07/23/21 Page 13 of 13 PageID #: 2338
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`Event
`Case Dispositive / Daubert Motions &
`Opening Briefs
`Case Dispositive / Daubert Answering Briefs
`Case Dispositive / Daubert Reply Briefs
`Pretrial Order
`
`Jury Instructions, Voir Dire, and Special
`Verdict Forms
`Pretrial Conference
`Trial
`
`Deadline
`September 14, 2023
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`October 5, 2023
`October 19, 2023
`No later than 5:00 p.m. on the fourth business day
`before the date of the final pretrial conference
`No later than 6:00 p.m. on the fourth business day
`before the date of the final pretrial conference
`February 13, 2024
`5-day jury trial beginning on March 4, 2024
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`28393796.1
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`