Case 1:18-cv-00303-RGA Document 25-1 Filed 05/15/18 Page 1 of 10 PageID #: 847
`Case 1:18-cv-00303-RGA Document 25-1 Filed 05/15/18 Page 1 of 10 PageID #: 847
`
`EXHIBIT A
`
`EXHIBIT A
`
`

`

`Case 1:18-cv-00303-RGA Document 25-1 Filed 05/15/18 Page 2 of 10 PageID #: 848
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`BAXTER HEALTHCARE CORPORATION,
`
` Plaintiff,
`
`v.
`
`HOSPIRA, INC. and ORION CORP.,
`
` Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`C.A. No. 18-303-RGA
`
`[BAXTER’S REVISED PROPOSED] SCHEDULING ORDER
`
`This ___ day of _____, 2018, the Court having waived an initial Rule 16(b) scheduling
`
`conference pursuant to Local Rules 16.1(b), and the parties having determined after discussion
`
`that the matter cannot be resolved at this juncture by settlement, voluntary mediation, or binding
`
`arbitration;
`
`IT IS ORDERED that:
`
`1.
`
`Rule 26(a)(1) Initial Disclosures. The parties shall make their initial disclosures
`
`pursuant to Federal Rule of Civil Procedure 26(a)(1) within fourteen days of this Order, by May
`
`24, 2018.
`
`2.
`
`Initial Disclosures and Initial Discovery in Patent Litigation.
`
`a.
`
`On or before June 11, 2018, the parties shall make their initial disclosures
`
`pursuant to Section 3 of the Court’s Default Standard for Discovery.
`
`b.
`
`On or before June 11, 2018, Hospira, Inc. and Orion Corp. (collectively,
`
`“Defendants”) shall specifically identify Baxter Healthcare Corporation’s (“Plaintiff”) accused
`
`products and the asserted patents they allegedly infringe, and produce the file history for each
`
`asserted patent.
`
`

`

`Case 1:18-cv-00303-RGA Document 25-1 Filed 05/15/18 Page 3 of 10 PageID #: 849
`
`c.
`
`On or before June 25, 2018 [original date: July 11, 2018], Plaintiff shall
`
`produce to Defendants the core technical documents related to the accused products, including
`
`but not limited to operation manuals, product literature, schematics, and specifications.
`
`d.
`
`On or before July 25, 2018 [original date: August 10, 2018], Defendants
`
`shall produce to Plaintiff initial claim charts relating the accused products to the asserted claims
`
`that the products alleged infringe. The initial claim charts shall identify specifically where each
`
`element of each asserted claim is found within the accused products, including for each element
`
`that such party contends is governed by 35 U.S.C. § 112(6), the identity of the structure(s),
`
`act(s), or material(s) in the accused products that perform the claimed function, and shall also
`
`state whether each element of each asserted claim is alleged to be present in the accused products
`
`literally or under the doctrine of equivalents.
`
`3.
`
`Joinder of Other Parties and Amendment of Pleadings. All motions to join other
`
`parties, and to amend or supplement the pleadings, shall be filed on or before June 5, 2019
`
`[original date: January 5, 2019].
`
`4.
`
`Discovery.
`
`a. Fact Discovery Cut Off. All fact discovery in this case shall be initiated so that it
`
`will be completed on or before September 10, 2018 [original date: November 15, 2018].
`
`b. Document Production. Document production shall be substantially complete by
`
`August 31, 2018.
`
`c. On-Site Inspection of Electronic Media. Such an inspection shall not be
`
`permitted absent a demonstration by the requesting party of specific need and good cause.
`
`d. Electronically Stored Information (ESI). If the producing party elects to use
`
`search terms to locate potentially responsive ESI, it shall disclose the search terms to the
`
`2
`
`

`

`Case 1:18-cv-00303-RGA Document 25-1 Filed 05/15/18 Page 4 of 10 PageID #: 850
`
`requesting party on or before June 30, 2018 [original date: July 15, 2018]. Absent a showing
`
`of good cause, a requesting party may request no more than 10 additional terms to be used in
`
`connection with the electronic search. Focused terms, rather than over-broad terms (e.g., product
`
`and company names) shall be employed. The producing party shall search (i) the non-custodial
`
`data sources identified in accordance with paragraph 3(b) of the Court’s Default Standard for
`
`Discovery; and (ii) emails and other ESI maintained by the custodians identified in accordance
`
`with paragraph 3(a) of the Court’s Default Standard for Discovery.
`
`e. Requests for Admission. A maximum of 50 requests for admission are permitted
`
`for each side. In addition, the parties may serve a reasonable number of requests for admission
`
`to establish the authenticity of document. Requests for admission directed to document
`
`authentication shall be clearly denoted as such, and shall be served separately from requests for
`
`admission subject to the numerical limitations stated above. The parties will work to agree on
`
`authentication where possible.
`
`f.
`
`Interrogatories. A maximum of 25 interrogatories, including contention
`
`interrogatories, are permitted for each side.
`
`g. Depositions.
`
`i.
`
`Limitation on Hours for Deposition Discovery. For all deposition
`
`discovery other than expert deposition discovery, each side is limited to a total of 10 depositions
`
`and 70 hours of taking testimony by deposition upon oral examination. Further, unless otherwise
`
`agreed by the parties, the maximum number of deposition hours permitted for any particular
`
`person (other than experts) shall be 7 hours, regardless of whether than person is testifying in his
`
`individual capacity, as a Rule 30(b)(6) designee, or some combination thereof. For expert
`
`deposition discovery, each side shall be entitled to a separate deposition each Rule 26(a)(2)(B)
`
`3
`
`

`

`Case 1:18-cv-00303-RGA Document 25-1 Filed 05/15/18 Page 5 of 10 PageID #: 851
`
`report submitted by an expert. The parties shall discuss any further limitations on these expert
`
`depositions after service of expert reply reports. If a party believes that additional hours for
`
`deposition discovery are necessary, the parties shall meet and confer and try to reach agreement
`
`on the amount of additional hours needed, and thereafter, if unable to reach agreement, the
`
`parties may seek modification of this provision by submission to the Court.
`
`ii.
`
`Location of Depositions. The parties shall meet and confer regarding the
`
`locations of depositions, taking into account convenience for the deponent.
`
`h. Discovery Matters and Disputes Relating to Protective Orders. Should counsel
`
`find they are unable to resolve a discovery matter or a dispute relating to a protective order, the
`
`parties involved in the discovery matter or protective order dispute shall contact the Court’s Case
`
`Manager to schedule an in-person conference/argument. Unless otherwise ordered, by no later
`
`than forty-eight hours prior to the conference/argument, the party seeking relief shall file with
`
`the Court a letter, not to exceed three pages, outlining the issues in dispute and its position on
`
`those issues. By no later than twenty-four hours prior to the conference/argument, any party
`
`opposing the application for relief may file a letter, not to exceed three pages, outlining that
`
`party’s reasons for its opposition. Should any document(s) be filed under seal, a courtesy copy
`
`of the sealed document(s) must be provided to the Court within one hour of e-filing the
`
`document(s).
`
`If a discovery-related motion is filed without leave of the Court, it will be denied
`
`without prejudice to the moving party’s right to bring the dispute to the Court through the
`
`discovery matters procedures set forth in this Order.
`
`5.
`
`Application to Court for Protective Order. Counsel will confer and attempt to
`
`reach an agreement on a proposed form of protective order specifying terms and conditions for
`
`4
`
`

`

`Case 1:18-cv-00303-RGA Document 25-1 Filed 05/15/18 Page 6 of 10 PageID #: 852
`
`the disclosure of confidential information and submit it to the Court within thirty days from the
`
`date of this Order. Should counsel be unable to reach an agreement on a proposed form of order,
`
`counsel must follow the provisions of Paragraph 4(h) above.
`
`Any proposed protective order must include the following paragraph:
`
`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.
`
`6.
`
`Papers Filed Under Seal. When filing papers under seal, counsel shall deliver to
`
`the Clerk an original and one copy of the papers. A redacted version of any sealed document
`
`shall be filed electronically within seven days of the filing of the sealed document.
`
`7.
`
`Courtesy Copies. The parties shall provide to the Court two courtesy copies of all
`
`briefs and one courtesy copy of any other document filed in support of any briefs (i.e.,
`
`appendices, exhibits, declarations, affidavits etc.). This provision also applies to papers filed
`
`under seal.
`
`8.
`
`Claim Construction Issue Identification. On or before May 25, 2018, the parties
`
`shall exchange a list of those claim term(s)/phrase(s) that they believe need construction and
`
`their proposed claim construction of those term(s)/phrase(s). This document will not be filed
`
`with the Court. Subsequent to exchanging that list, the parties will meet and confer to prepare a
`
`Joint Claim Construction Chart to be filed no later than June 5, 2018 [original date: June 15,
`
`2018]. The Joint Claim Construction Chart, in Word or WordPerfect format, shall be e-mailed
`
`simultaneously with filing to rga_civil@ded.uscourts.gov. The parties’ Joint Claim Construction
`
`5
`
`

`

`Case 1:18-cv-00303-RGA Document 25-1 Filed 05/15/18 Page 7 of 10 PageID #: 853
`
`Chart should identify for the Court the term(s)/phrase(s) of the claim(s) in issue, and should
`
`include each party’s proposed construction of the disputed claim language with citation(s) only
`
`to the intrinsic evidence in support of their respective proposed constructions. A copy of the
`
`patent(s) in issue as well as those portions of the intrinsic record relied upon shall be submitted
`
`with this Joint Claim Construction Chart. In this joint submission, the parties shall not provide
`
`argument.
`
`9.
`
`Claim Construction Briefing. Defendants shall serve, but not file, their opening
`
`brief, not to exceed 20 pages, on June 25, 2018 [original date: August 15, 2018]. Plaintiff shall
`
`serve, but not file, its answering brief, not to exceed 30 pages, on July 6, 2018 [original date:
`
`September 4, 2018]. Defendants shall serve, but not file, their reply brief, not to exceed 20
`
`pages, on July 20, 2018 [original date: September 19, 2018]. Plaintiff shall serve, but not file,
`
`its sur-reply brief, not to exceed 10 pages, on August 2, 2018 [original date: October 4, 2018].
`
`No later than August 7, 2018 [original date: October 15, 2018], the parties shall file a Joint
`
`Claim Construction Brief. The parties shall copy and paste their unfiled briefs into one brief,
`
`with their positions on each claim term in sequential order, in substantially the form below.
`
`JOINT CLAIM CONSTRUCTION BRIEF
`
`I.
`
`II.
`
`A.
`
`Agreed-upon Constructions
`
`Disputed Constructions
`
` [TERM l]
`1. Plaintiff’s Opening Position
`2. Defendants’ Answering Position
`3. Plaintiff’s Reply Position
`4. Defendants’ Sur-Reply Position
`
`B.
`
` [TERM 2]
`1. Plaintiff’s Opening Position
`2. Defendants’ Answering Position
`3. Plaintiff’s Reply Position
`
`6
`
`

`

`Case 1:18-cv-00303-RGA Document 25-1 Filed 05/15/18 Page 8 of 10 PageID #: 854
`
`4. Defendants’ Sur-Reply Position
`
`Etc. The parties need not include any general summaries of the law relating to claim
`
`construction. If there are any materials that would be submitted in an appendix, the parties shall
`
`submit them in a Joint Appendix.
`
`10.
`
`Hearing on Claim Construction. Beginning at 9:00 a.m. on August 17, 2018
`
`[original date: October 30, 2018], the Court will hear argument on claim construction. Absent
`
`prior approval of the Court (which, if it is sought, must be done so by joint letter submission no
`
`later than the date on which answering claim construction briefs are due), the parties shall not
`
`present testimony at the argument, and the argument shall not exceed a total of three hours.
`
`11.
`
`Disclosure of Expert Testimony.
`
`a.
`
`Expert Reports. For the party who has the initial burden of proof on the
`
`subject matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on or before
`
`September 12, 2018 [original date: December 15, 2018]. The supplemental disclosure to
`
`contradict or rebut evidence on the same matter identified by another party is due on or before
`
`October 3, 2018 [original date: January 15, 2019]. Reply expert reports from the party with
`
`the initial burden of proof are due on or before October 26, 2018 [original date: February 5,
`
`2019]. No other expert reports will be permitted without either the consent of all parties or leave
`
`of the Court. Along with the submissions of the expert reports, the parties shall advise of the
`
`dates and times of their experts’ availability for depositions. Depositions of experts shall be
`
`completed on or before November 2, 2018 [original date: February 15, 2019].
`
`b.
`
`Objections to Expert Testimony. To the extent any objection to expert
`
`testimony is made pursuant to the principles announced in Daubert v. Merrell Dow Pharm., Inc.,
`
`7
`
`

`

`Case 1:18-cv-00303-RGA Document 25-1 Filed 05/15/18 Page 9 of 10 PageID #: 855
`
`509 U.S. 579 (1993), as incorporated in Federal Rule of Evidence 702, it shall be made by
`
`motion no later than November 12, 2018 [original date: March 1, 2019], unless otherwise
`
`ordered by the Court.
`
`12.
`
`13.
`
`[INTENTIONALLY OMITTED.]
`
`Applications by Motion. Except as otherwise specified herein, any application to
`
`the Court shall be by written motion. Any non-dispositive motion should contain the statement
`
`required by Local Rule 7.1.1.
`
`14.
`
`Pretrial Conference. On December 17, 2018 [original date: May 3, 2019], the
`
`Court will hold a Rule 16(e) final pretrial conference in Court with counsel beginning at 9:00
`
`a.m. The parties shall file a joint proposed final pretrial order in compliance with Local Rule
`
`16.3(c) no later than 5 p.m. on the third business day before the date of the final pretrial
`
`conference. Unless otherwise ordered by the Court, the parties shall comply with the timeframes
`
`set forth in Local Rule 16.3(d) for the preparation of the proposed joint final pretrial order.
`
`15. Motions in Limine. Motions in limine shall not be separately filed. All in limine
`
`requests and responses thereto shall be set forth in the proposed pretrial order. Each party shall
`
`be limited to three in limine requests, unless otherwise permitted by the Court. The in limine
`
`request and any response shall contain the authorities relied upon; each in limine request may be
`
`supported by a maximum of three pages of argument and may be opposed by a maximum of
`
`three pages of argument, and the party making the in limine request may add a maximum of one
`
`additional page in reply in support of its request. If more than one party is supporting or
`
`opposing an in limine request, such support or opposition shall be combined in a single three
`
`page submission (and, if the moving party, a single one page reply). No separate briefing shall
`
`be submitted on in limine requests, unless otherwise permitted by the Court.
`
`8
`
`

`

`Case 1:18-cv-00303-RGA Document 25-1 Filed 05/15/18 Page 10 of 10 PageID #: 856
`
`16.
`
`Trial. This matter is scheduled for a 3-day bench trial beginning at 9:30 a.m. on
`
`December 17, 2018 [original date: May 3, 2019], with the subsequent trial days beginning at
`
`9:30 a.m. The trial will be timed, as counsel will be allocated a total number of hours in which
`
`to present their respective cases.
`
`17.
`
`ADR Process. This matter is referred to a magistrate judge to explore the
`
`possibility of alternative dispute resolution.
`
`___________________________________
`UNITED STATES DISTRICT JUDGE
`
`9
`
`