Case 1:18-cv-00303-RGA Document 18-1 Filed 04/25/18 Page 1 of 10 PageID #: 573
`Case 1:18-cv-00303-RGA Document 18-1 Filed 04/25/18 Page 1 of 10 PageID #: 573
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`ATTACHMENT A
`ATTACHMENT A
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`PROPOSED SCHEDULING ORDER
`PROPOSED SCHEDULING ORDER
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`Case 1:18-cv-00303-RGA Document 18-1 Filed 04/25/18 Page 2 of 10 PageID #: 574
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`BAXTER HEALTHCARE CORPORATION,
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` Plaintiff,
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`v.
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`HOSPIRA, INC. and ORION CORP.,
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` Defendants.
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`C.A. No. 18-303-RGA
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`[PROPOSED] SCHEDULING ORDER
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`This ___ day of _____, 2018, the Court having conducted an initial Rule 16(b)
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`scheduling conference pursuant to Local Rules 16.1(b), and the parties having determined after
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`discussion that the matter cannot be resolved at this juncture by settlement, voluntary mediation,
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`or binding arbitration;
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`IT IS ORDERED that:
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`1.
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`Rule 26(a)(1) Initial Disclosures. The parties shall make their initial disclosures
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`pursuant to Federal Rule of Civil Procedure 26(a)(1) within fourteen days of this Order, by May
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`24, 2018.
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`2.
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`Initial Disclosures and Initial Discovery in Patent Litigation.
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`a.
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`On or before June 11, 2018, the parties shall make their initial disclosures
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`pursuant to Section 3 of the Court’s Default Standard for Discovery.
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`b.
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`On or before June 11, 2018, Hospira, Inc. and Orion Corp. (collectively,
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`“Defendants”) shall specifically identify Baxter Healthcare Corporation’s (“Plaintiff”) accused
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`products and the asserted patents they allegedly infringe, and produce the file history for each
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`asserted patent.
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`c.
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`On or before July 11, 2018, Plaintiff shall produce to Defendants the core
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`technical documents related to the accused products, including but not limited to operation
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`manuals, product literature, schematics, and specifications.
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`d.
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`On or before August 10, 2018, Defendants shall produce to Plaintiff initial
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`claim charts relating the accused products to the asserted claims that the products alleged
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`infringe. The initial claim charts shall identify specifically where each element of each asserted
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`claim is found within the accused products, including for each element that such party contends
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`is governed by 35 U.S.C. § 112(6), the identity of the structure(s), act(s), or material(s) in the
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`accused products that perform the claimed function, and shall also state whether each element of
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`each asserted claim is alleged to be present in the accused products literally or under the doctrine
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`of equivalents.
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`3.
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`Joinder of Other Parties and Amendment 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 January 5, 2019.
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`4.
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`Discovery.
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`a. Fact Discovery Cut Off. All fact discovery in this case shall be initiated so that it
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`will be completed on or before [Baxter proposal: November 15, 2018] [Hospira/Orion
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`proposal: April 15, 2019].
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`b. Document Production. Document production shall be substantially complete by
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`[Baxter proposal: August 31, 2018] [Hospira/Orion proposal: February 15, 2019].
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`c. On-Site Inspection of Electronic Media. Such an inspection shall not be
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`permitted absent a demonstration by the requesting party of specific need and good cause.
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`d. Electronically Stored Information (ESI). If the producing party elects to use
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`search terms to locate potentially responsive ESI, it shall disclose the search terms to the
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`requesting party on or before July 15, 2018. Absent a showing of good cause, a requesting party
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`may request no more than 10 additional terms to be used in connection with the electronic
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`search. Focused terms, rather than over-broad terms (e.g., product and company names) shall be
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`employed. The producing party shall search (i) the non-custodial data sources identified in
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`accordance with paragraph 3(b) of the Court’s Default Standard for Discovery; and (ii) emails
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`and other ESI maintained by the custodians identified in accordance with paragraph 3(a) of the
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`Court’s Default Standard for Discovery.
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`e. Requests for Admission. A maximum of 50 requests for admission are permitted
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`for each side. In addition, the parties may serve a reasonable number of requests for admission
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`to establish the authenticity of document. Requests for admission directed to document
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`authentication shall be clearly denoted as such, and shall be served separately from requests for
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`admission subject to the numerical limitations stated above. The parties will work to agree on
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`authentication where possible.
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`f.
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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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`g. Depositions.
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`i.
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`Limitation on Hours for Deposition Discovery. For all deposition
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`discovery other than expert deposition discovery, each side is limited to a total of 10 depositions
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`and 70 hours of taking testimony by deposition upon oral examination. Further, unless otherwise
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`agreed by the parties, the maximum number of deposition hours permitted for any particular
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`person (other than experts) shall be 7 hours, regardless of whether than person is testifying in his
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`individual capacity, as a Rule 30(b)(6) designee, or some combination thereof. For expert
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`deposition discovery, each side shall be entitled to a separate deposition each Rule 26(a)(2)(B)
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`Case 1:18-cv-00303-RGA Document 18-1 Filed 04/25/18 Page 5 of 10 PageID #: 577
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`report submitted by an expert. The parties shall discuss any further limitations on these expert
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`depositions after service of expert reply reports. If a party believes that additional hours for
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`deposition discovery are necessary, the parties shall meet and confer and try to reach agreement
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`on the amount of additional hours needed, and thereafter, if unable to reach agreement, the
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`parties may seek modification of this provision by submission to the Court.
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`ii.
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`Location of Depositions. The parties shall meet and confer regarding the
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`locations of depositions, taking into account convenience for the deponent.
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`h. Discovery Matters and Disputes Relating to Protective Orders. Should counsel
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`find they are unable to resolve a discovery matter or a dispute relating to a protective order, the
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`parties involved in the discovery matter or protective order dispute shall contact the Court’s Case
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`Manager to schedule an in-person conference/argument. Unless otherwise ordered, by no later
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`than forty-eight hours prior to the conference/argument, the party seeking relief shall file with
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`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 twenty-four hours 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
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`party’s reasons for its opposition. Should any document(s) be filed under seal, a courtesy copy
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`of the sealed document(s) must be provided to the Court within one hour of e-filing the
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`document(s).
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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
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`discovery matters procedures set forth in this Order.
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`5.
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`Application to Court for Protective Order. Counsel will confer and attempt to
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`reach an agreement on a proposed form of protective order specifying terms and conditions for
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`Case 1:18-cv-00303-RGA Document 18-1 Filed 04/25/18 Page 6 of 10 PageID #: 578
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`the disclosure of confidential information and submit it to the Court within thirty days from the
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`date of this Order. Should counsel be unable to reach an agreement on a proposed form of order,
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`counsel must follow the provisions of Paragraph 4(h) above.
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`Any proposed protective order must 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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`6.
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`Papers Filed Under Seal. When filing papers under seal, counsel shall deliver to
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`the Clerk an original and one copy of the papers. A redacted version of any sealed document
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`shall be filed electronically within seven days of the filing of the sealed document.
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`7.
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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.,
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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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`8.
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`Claim Construction Issue Identification. On or before [Baxter proposal: May
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`25, 2018] [Hospira/Orion proposal: August 24, 2018], the parties shall exchange a list of those
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`claim term(s)/phrase(s) that they believe need construction and their proposed claim construction
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`of those term(s)/phrase(s). This document will not be filed with the Court. Subsequent to
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`exchanging that list, the parties will meet and confer to prepare a Joint Claim Construction Chart
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`to be filed no later than [Baxter proposal: June 15, 2018] [Hospira/Orion proposal:
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`September 7, 2018]. The Joint Claim Construction Chart, in Word or WordPerfect format, shall
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`Case 1:18-cv-00303-RGA Document 18-1 Filed 04/25/18 Page 7 of 10 PageID #: 579
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`be e-mailed simultaneously with filing to rga_civil@ded.uscourts.gov. The parties’ Joint Claim
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`Construction Chart should identify for the Court the term(s)/phrase(s) of the claim(s) in issue,
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`and should include each party’s proposed construction of the disputed claim language with
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`citation(s) only to the intrinsic evidence in support of their respective proposed constructions. A
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`copy of the patent(s) in issue as well as those portions of the intrinsic record relied upon shall be
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`submitted with this Joint Claim Construction Chart. In this joint submission, the parties shall not
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`provide argument.
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`9.
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`Claim Construction Briefing. Defendants shall serve, but not file, their opening
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`brief, not to exceed 20 pages, on [Baxter proposal: August 15, 2018] [Hospira/Orion
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`proposal: October 5, 2018]. Plaintiff shall serve, but not file, its answering brief, not to exceed
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`30 pages, on [Baxter proposal: September 4, 2018] [Hospira/Orion proposal: November 5,
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`2018]. Defendants shall serve, but not file, its reply brief, not to exceed 20 pages, on [Baxter
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`proposal: September 19, 2018] [Hospira/Orion proposal: November 26, 2018]. Plaintiff
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`shall serve, but not file, its sur-reply brief, not to exceed 10 pages, on [Baxter proposal:
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`October 4, 2018] [Hospira/Orion proposal: December 14, 2018]. No later than [Baxter
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`proposal: October 15, 2018] [Hospira/Orion proposal: December 21, 2018], the parties shall
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`file a Joint Claim Construction Brief. The parties shall copy and paste their unfiled briefs into
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`one brief, 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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`Agreed-upon Constructions
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`Disputed Constructions
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`A.
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` [TERM l]
`1. Plaintiff’s Opening Position
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`6
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`Case 1:18-cv-00303-RGA Document 18-1 Filed 04/25/18 Page 8 of 10 PageID #: 580
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`2. Defendants’ Answering Position
`3. Plaintiff’s Reply Position
`4. Defendants’ Sur-Reply Position
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`B.
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` [TERM 2]
`1. Plaintiff’s Opening Position
`2. Defendants’ Answering Position
`3. Plaintiff’s Reply Position
`4. Defendants’ Sur-Reply Position
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`Etc. The parties need not include any general summaries of the law relating to claim
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`construction. If there are any materials that would be submitted in an appendix, the parties shall
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`submit them in a Joint Appendix.
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`10.
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`Hearing on Claim Construction. Beginning at 9:00 a.m. on [Baxter proposal:
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`October 30, 2018] [Hospira/Orion proposal: January __, 2019], the Court will hear argument
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`on claim construction. Absent prior approval of the Court (which, if it is sought, must be done
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`so by joint letter submission no later than the date on which answering claim construction briefs
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`are due), the parties shall not present testimony at the argument, and the argument shall not
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`exceed a total of three hours.
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`11.
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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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`[Baxter proposal: December 15, 2018] [Hospira/Orion proposal: April 19, 2019]. The
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`supplemental disclosure to contradict or rebut evidence on the same matter identified by another
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`party is due on or before [Baxter proposal: January 15, 2019] [Hospira/Orion proposal:
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`May 17, 2019]. Reply expert reports from the party with the initial burden of proof are due on
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`or before [Baxter proposal: February 5, 2019] [Hospira/Orion proposal: June 14, 2019].
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`No other expert reports will be permitted without either the consent of all parties or leave of the
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`Court. Along with the submissions of the expert reports, the parties shall advise of the dates and
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`times of their experts’ availability for depositions. Depositions of experts shall be completed on
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`or before [Baxter proposal: February 15, 2019] [Hospira/Orion proposal: July 26, 2019].
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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
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`motion no later than the deadline for dispositive motions set forth herein, unless otherwise
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`ordered by the Court.
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`12.
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`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 [Baxter
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`proposal: March 1, 2019] [Hospira/Orion proposal: August 23, 2019]. No case dispositive
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`motion under Rule 56 may be filed more than ten days before the above date without leave of the
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`Court.
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`13.
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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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`14.
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`Pretrial Conference. On [Baxter proposal: May 1, 2019] [Hospira/Orion
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`proposal: November __, 2019], the Court will hold a Rule 16(e) final pretrial conference in
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`Court with counsel beginning at 9:00 a.m. The parties shall file a joint proposed final pretrial
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`order in compliance with Local Rule 16.3(c) no later than 5 p.m. on the third business day before
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`the date of the final pretrial conference. Unless otherwise ordered by the Court, the parties shall
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`comply with the timeframes set forth in Local Rule 16.3(d) for the preparation of the proposed
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`joint final pretrial order.
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`Case 1:18-cv-00303-RGA Document 18-1 Filed 04/25/18 Page 10 of 10 PageID #: 582
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`15. 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 three 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 pages of argument and may be opposed by a maximum of
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`three pages of argument, and the party making the in limine request may add a maximum of one
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`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
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`page submission (and, if the moving party, a single one page reply). No separate briefing shall
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`be submitted on in limine requests, unless otherwise permitted by the Court.
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`16.
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`Trial. This matter is scheduled for a 3-day trial beginning at 9:30 a.m. on [Baxter
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`proposal: May 15, 2019] [Hospira/Orion proposal: December __, 2019], with the subsequent
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`trial days beginning at 9:30 a.m. The trial will be timed, as counsel will be allocated a total
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`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
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`possibility of alternative dispute resolution.
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`___________________________________
`UNITED STATES DISTRICT JUDGE
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`9
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