Case 1:19-cv-01245-LPS Document 16 Filed 01/29/20 Page 1 of 16 PageID #: 162
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Plaintiff,
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`v.
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`LBT IP I LLC,
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`APPLE INC.,
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`Civil Action No. 19-1245-LPS
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`Defendant.
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`
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`[PROPOSED] SCHEDULING ORDER
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`This ____ day of __________________, 2020, the Court having conducted a Case
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`Management Conference/Rule 16 scheduling and planning conference pursuant to Local Rule
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`16.2(a) and Judge Stark’s Revised Procedures for Managing Patent Cases (which is posted at
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`http://www.ded.uscourts.gov,; see Chambers, Judge Leonard P. Stark, Patent Cases) on
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`_________________ 2020, and the parties having determined after discussion that the matter
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`cannot be resolved at this juncture by settlement, voluntary mediation, or binding arbitration;
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`IT IS HEREBY ORDERED that:
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`1.
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`Rule 26(a)(1) Initial Disclosures and E-Discovery Default Standard. Unless
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`otherwise agreed to by the parties, the parties shall make their initial disclosures pursuant to
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`Federal Rule of Civil Procedure 26(a)(1) within five (5) business days of the date of this Order.
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`If they have not already done so, the parties are to review the Court’s Default Standard for
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`Discovery, Including Discovery of Electronically Stored Information (“ESI”) (which is posted at
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`http://www.ded.uscourts.gov; see Other Resources, Default Standards for Discovery, and is
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`incorporated herein by reference).
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`2.
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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 October 2, 2020.
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`25956523.1
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`1
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`Case 1:19-cv-01245-LPS Document 16 Filed 01/29/20 Page 2 of 16 PageID #: 163
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`3.
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`Application to Court for Protective Order. Should counsel find it will be
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`necessary to apply to the Court for a protective order specifying terms and conditions for the
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`disclosure of confidential information, counsel should confer and attempt to reach an agreement
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`on a proposed form of order and submit it to the Court within ten (10) business 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 8(g) below.
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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 “confidential” [the parties should list any
`other level of designation, such as “highly
`confidential,” which may be provided for in the
`protective order] pursuant to this order shall
`promptly notify that party of the motion so that the
`party may have an opportunity to appear and be
`heard on whether that information should be
`disclosed.
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`4.
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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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`25956523.1
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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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`5.
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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 20, 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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`6.
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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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`7.
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`Disclosures. Absent agreement among the parties, and approval of the Court:
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`a
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`By March 20, 2020, Plaintiff shall identify the accused product(s),
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`including accused methods and systems, and its damages model, as well as the asserted patent(s)
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`that the accused product(s) allegedly infringe(s). Plaintiff shall also produce the file history for
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`each asserted patent.
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`b
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`By June 12, 2020, Defendant shall produce core technical documents
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`related to the accused product(s), sufficient to show how the accused product(s) work(s),
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`including but not limited to non-publicly available operation manuals, product literature,
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`schematics, and specifications. Defendant shall also produce sales figures for the accused
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`product(s).
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`c
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`By August 14, 2020, Plaintiff shall produce an initial claim chart relating
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`each known accused product to the asserted claims each such product allegedly infringes.
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`25956523.1
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`d
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`By September 11, 2020, Defendant shall produce its initial invalidity
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`contentions for each asserted claim, as well as the known related invalidating references.
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`e
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`f
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`By May 28, 2021, Plaintiff shall provide final infringement contentions.
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`By June 18, 2021, Defendant shall provide final invalidity contentions.
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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. All discovery in this case shall be initiated so that it
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`will be completed on or before June 25, 2021.
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`b
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`Document Production. Document production shall be substantially
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`complete by December 18, 2020.
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`c
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`Requests for Admission. A maximum of 50 requests for admission are
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`permitted for each side, not including Requests for Admission directed to the admissibility of
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`documents, which Requests are not limited.
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`d
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`Interrogatories.
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`i.
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`A maximum of 25 interrogatories, including contention
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`interrogatories, are permitted for each 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 shall 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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`25956523.1
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`e
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`Depositions.
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`i.
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`Limitation on Hours for Deposition Discovery. Each side is
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`limited to a total of 85 hours of taking testimony by deposition
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`upon oral examination from fact witnesses.
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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
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`district court must ordinarily be required, upon request, to submit
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`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
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`or agreement of the parties. A defendant who becomes a
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`counterclaimant, cross-claimant, or third-party plaintiff shall be
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`considered as having filed an action in this Court for the purpose of
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`this provision.
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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, the initial Federal Rule 26(a)(2) disclosure of
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`expert testimony is due on or before July 23, 2021. The
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`supplemental disclosure to contradict or rebut evidence on the
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`same matter identified by another party is due on or before August
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`20, 2021. Reply expert reports from the party with the initial
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`burden of proof are due on or before September 17, 2021. No
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`other expert reports will be permitted without either the consent of
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`all parties or leave of the Court. Along with the submissions of the
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`25956523.1
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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.
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`ii.
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`Expert Report Supplementation. The parties agree they will permit
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`expert declarations to be filed in connection with motions briefing
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`(including case-dispositive motions).
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`iii.
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`Objections to Expert Testimony. To the extent any objection to
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`expert testimony is made pursuant to the principles announced in
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`Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), as
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`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
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`herein, unless otherwise ordered by the Court. Briefing on such
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`motions is subject to the page limits set out in connection with
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`briefing of case dispositive motions.
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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
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`or a dispute relating to a protective order, the parties involved in
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`the discovery matter or protective order dispute shall submit a
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`joint letter in substantially the following form:
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`25956523.1
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`Case 1:19-cv-01245-LPS Document 16 Filed 01/29/20 Page 7 of 16 PageID #: 168
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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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`Delaware Counsel: ____________________
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`Lead Counsel: ________________________
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`The disputes requiring judicial attention are
`listed below:
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`[provide here a non-argumentative list of disputes
`requiring judicial attention]
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`iii.
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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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`25956523.1
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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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`25956523.1
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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. Unless otherwise
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`ordered by the Court, the parties shall provide the Court, no later than the date on which their
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`Joint Claim Construction Brief is due, a tutorial on the technology at issue. In that regard, the
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`parties may separately or jointly submit a DVD of not more than thirty (30) minutes. The
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`tutorial should focus on the technology in issue and should not be used for argument. The parties
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`may choose to file their tutorial(s) under seal, subject to any protective order in effect. Each
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`party may comment, in writing (in no more than five (5) pages) on the opposing party’s tutorial.
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`Any such comment shall be filed no later than the date on which the answering claim
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`construction briefs are due. As to the format selected, the parties should confirm the Court’s
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`technical abilities to access the information contained in the tutorial (currently best are “mpeg”
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`or “quicktime”).
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`12.
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`Claim Construction Issue Identification. On October 23, 2020, the parties shall
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`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 a Joint
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`Claim Construction Chart to be submitted on November 20, 2020. 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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`25956523.1
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`Case 1:19-cv-01245-LPS Document 16 Filed 01/29/20 Page 10 of 16 PageID #: 171
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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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`13.
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`Claim Construction Briefing. The Plaintiff shall serve, but not file, its opening
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`brief, not to exceed 20 pages, on January 15, 2021. The Defendant shall serve, but not file, its
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`answering brief, not to exceed 30 pages, on February 12, 2021. The Plaintiff shall serve, but
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`not file, its reply brief, not to exceed 20 pages, on February 26, 2021. The Defendant shall
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`serve, but not file, its sur-reply brief, not to exceed 10 pages, on March 12, 2021. No later than
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`March 17, 2021, the parties shall file a Joint Claim Construction Brief. The parties shall copy
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`and paste their unfiled briefs into one brief, with their positions on each claim term in sequential
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`order, in substantially the form 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. [TERM 1]
`1.Plaintiff's Opening Position
`2.Defendant's Answering Position
`3.Plaintiffs Reply Position
`4.Defendant's Sur-Reply Position
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`B. [TERM 2]
`1.Plaintiffs Opening Position
`2.Defendant's Answering Position
`3.Plaintiff's Reply Position
`4.Defendant's 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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`14.
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`Hearing on Claim Construction. Beginning at ______ __.m. on_____________
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`[parties request March 24, 2021], the Court will hear argument on claim construction. The
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`25956523.1
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`parties shall notify the Court, by joint letter submission, no later than the date on which their
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`Joint Claim Construction Brief is due: (i) whether they request leave to present testimony at the
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`hearing; and (ii) the amount of time they are requesting be allocated to them for the hearing.
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`Provided that the parties comply with all portions of this Scheduling Order, and any other
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`orders of the Court, the parties should anticipate that the Court will issue its claim construction
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`order within sixty (60) days of the conclusion of the claim construction hearing. If the Court is
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`unable to meet this goal, it will advise the parties no later than sixty (60) days after the
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`conclusion of the claim construction hearing.
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`15.
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`Interim Status Report. On March 19, 2021, counsel shall submit a joint letter to
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`the Court with an interim report on the nature of the matters in issue and the progress of
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`discovery to date. Thereafter, if the Court deems it necessary, it will schedule a status
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`conference.
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`16.
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`Supplementation. Absent agreement among the parties, and approval of the
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`Court, no later than the date on which final contentions are due the parties must finally
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`supplement, inter alia, the identification of all accused products and of all invalidity references.
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`17.
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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 October 29,
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`2021. Briefing will be presented pursuant to the Court’s Local Rules, as modified by this Order.
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`a
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`No early motions without leave. No case dispositive motion under Rule
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`56 may be filed more than ten (10) days before the above date without leave of the Court.
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`b
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`Page limits combined with Daubert motion page limits. Each party is
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`permitted to file as many case dispositive motions as desired; provided, however, that each SIDE
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`will be limited to a combined total of 40 pages for all opening briefs, a combined total of 40
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`25956523.1
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`pages for all answering briefs, and a combined total of 20 pages for all reply briefs regardless of
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`the number of case dispositive motions that are filed. In the event that a party files, in addition to
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`a case dispositive motion, a Daubert motion to exclude or preclude all or any portion of an
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`expert’s testimony, the total amount of pages permitted for all case dispositive and Daubert
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`motions shall be increased to 50 pages for all opening briefs, 50 pages for all answering briefs,
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`and 25 pages for all reply briefs for each SIDE.1
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`c
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`Hearing. The Court will hear argument on all pending case dispositive
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`and Daubert motions on _________________ [parties request March 17, 2022] beginning at
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`_______ _.m. Subject to further order of the Court, each side will be allocated a total of forty-
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`five (45) minutes to present its argument on all pending motions.
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`18.
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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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`19.
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`Pretrial Conference. On _________________ [parties request May 4, 2022], the
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`Court will hold a pretrial conference in Court with counsel beginning at ______ .m. Unless
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`otherwise ordered by the Court, the parties should assume that filing the pretrial order satisfies
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`the pretrial disclosure requirement of Federal Rule of Civil Procedure 26(a)(3). The parties shall
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`file with the Court the joint proposed final pretrial order with the information required by the
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`form of Revised Final Pretrial Order — Patent, which can be found on the Court’s website
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`(www.ded.uscourts.gov), on or before _________________ [parties request April 15, 2022].
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`1 The parties must work together to ensure that the Court receives no more than a total of 250
`pages (i.e., 50 + 50 + 25 regarding one side’s motions, and 50 + 50 + 25 regarding the other
`side’s motions) of briefing on all case dispositive motions and Daubert motions that are covered
`by this scheduling order and any other scheduling order entered in any related case that is
`proceeding on a consolidated or coordinated pretrial schedule.
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`25956523.1
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`Unless otherwise ordered by the Court, the parties shall comply with the timeframes set forth in
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`Local Rule 16.3(d)(1)-(3) for the preparation of the joint 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 jury trial day (in
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`which there is not jury selection, jury instruction, or deliberations), there will be 5 1/2 to 6 1/2
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`hours of trial time, and in a typical bench trial day 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, whether
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`the jury should be in or out of the courtroom, and whether such motions may be supplemented in
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`writing.
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`25956523.1
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`20. 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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`21.
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`Jury Instructions, Voir Dire, and Special Verdict Forms. Where a case is to be
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`tried to a jury, pursuant to Local Rules 47 and 51 the parties should file (i) proposed voir dire,
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`(ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict forms three
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`(3) business days before the final pretrial conference. This submission shall be accompanied by
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`a courtesy copy containing electronic files of these documents, in WordPerfect or Microsoft
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`Word format, which may be submitted by e-mail to Judge Stark’s staff.
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`22.
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`Trial. This matter is scheduled for a _____day trial [parties request six (6) days]
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`beginning at 9:30 a.m. on _________________ [parties request May 23, 2022], with the
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`subsequent trial days beginning at 9:00 a.m. Until the case is submitted to the jury for
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`deliberations, the jury will be excused each day at 4:30 p.m. The trial will be timed, as counsel
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`will be allocated a total number of hours in which to present their respective cases.
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`
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`25956523.1
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`14
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`

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`Case 1:19-cv-01245-LPS Document 16 Filed 01/29/20 Page 15 of 16 PageID #: 176
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`23.
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`Judgment on Verdict and Post-Trial Status Report. Within seven (7) days after a
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`jury returns a verdict in any portion of a jury trial, the parties shall jointly submit a form of order
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`to enter judgment on the verdict. At the same time, the parties shall submit a joint status report,
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`indicating among other things how the case should proceed and listing any post-trial motions
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`each party intends to file.
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`24.
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`Post-Trial Motions. Unless otherwise ordered by the Court, all SIDES are limited
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`to a maximum of 20 pages of opening briefs, 20 pages of answering briefs, and 10 pages of reply
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`briefs relating to any post-trial motions filed by that side, no matter how many such motions are
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`filed.
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`
` UNITED STATES DISTRICT JUDGE
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`
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`25956523.1
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`15
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`

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`Case 1:19-cv-01245-LPS Document 16 Filed 01/29/20 Page 16 of 16 PageID #: 177
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`
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`Deadline or Event
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`Accused Products identified (asserted patents, file history, damages
`model, accused methods/systems)
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`Core Technical Documents produced
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`Plaintiff’s Initial Infringement Claim Chart
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`Initial Invalidity Contentions
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`Proposed Date
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`March 20, 2020
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`June 12, 2020
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`August 14, 2020
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`September 11, 2020
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`Motions for Joinder of Parties or to Amend Pleadings
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`October 2, 2020
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`Exchange Claim Terms for Construction
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`Joint Claim Construction Chart
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`Document Production substantially complete
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`Plaintiff’s Opening CC Brief
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`Defendant’s Answering CC Brief
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`Plaintiff’s Reply CC Brief
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`Defendant’s Sur-reply CC Brief
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`October 23, 2020
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`November 20, 2020
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`December 18, 2020
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`January 15, 2021
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`February 12, 2021
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`February 26, 2021
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`March 12, 2021
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`Joint CC Brief and Technology Tutorial Submission
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`March 17 2021
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`Interim Status Report
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`Markman Hearing
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`Final Infringement Contentions
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`Final Invalidity Contentions
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`Fact Discovery Cutoff
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`Opening Expert Reports
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`Rebuttal Expert Reports
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`Reply Expert Reports
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`Close of Expert Discovery
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`Case Dispositive and Daubert Motions
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`March 19, 2021
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`March 24, 2021
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`May 28, 2021
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`June 18, 2021
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`June 25, 2021
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`July 23, 2021
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`August 20, 2021
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`September 17, 2021
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`September 24, 2021
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`October 29, 2021
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`Hearing (on case dispositive and Daubert motions)
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`March 17, 2022
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`Pretrial Order
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`Pretrial Conference
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`Trial (6-day jury)
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`
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`
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`25956523.1
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`16
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`April 15, 2022
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`May 4, 2022
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`May 23, 2022
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`