Case 1:19-cv-01937-MFK-JLH Document 276 Filed 01/13/23 Page 1 of 28 PageID #: 39330
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`Civil Action No.1:19-cv-01937-MFK
`
`)
`)
`)
`)
`)
`)
`)
`
`) )
`
`
`
`
`
`Plaintiff,
`
`v.
`
`EXPRESS MOBILE, INC.,
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`
`
`
`
`GODADDY.COM, LLC,
`
`
`
`
`
`Defendant.
`
`
`
`
`
`[PROPOSED] JOINT PRETRIAL ORDER
`
`Timothy Devlin (No. 4241)
`tdevlin@devlinlawfirm.com
`DEVLIN LAW FIRM LLC
`1526 Gilpin Avenue
`Wilmington, DE 19806
`Telephone: (302) 449-9010
`Facsimile: (302) 353-4251
`
`OF COUNSEL:
`James R. Nuttall
`Michael Dockterman
`John L. Abramic
`Katherine H. Tellez
`Robert F. Kappers
`Tron Fu
`jnuttall@steptoe.com
`mdocketerman@steptoe.com
`jabramic@steptoe.com
`ktellez@steptoe.com
`rkappers@steptoe.com
`tfu@steptoe.com
`STEPTOE & JOHNSON LLP
`227 West Monroe, Suite 4700
`Chicago, IL 60606
`(312) 577-1300
`
`Christopher A. Suarez
`csuarez@steptoe.com
`STEPTOE & JOHNSON LLP
`1330 Connecticut Avenue, NW
`
`Beth Moskow-Schnoll (No. 2900)
`Brittany Giusini (No. 6034)
`Brian S.S. Auerbach (No. 6532)
`BALLARD SPAHR LLP
`919 N. Market Street, 11th Floor
`Wilmington, DE 19801-3034
`Telephone: (302) 252-4465
`Email: moskowb@ballardspahr.com
`giusinib@ballardspahr.com
`auerbachb@ballardspahr.com
`
`OF COUNSEL:
`Brian W. LaCorte
`Jonathon A. Talcott
`Andrew H. Hensley
`BALLARD SPAHR LLP
`1 East Washington Street, Suite 2300
`Phoenix, AZ 85004-2555
`Telephone: (602) 798-5400
`Email: lacorteb@ballardspahr.com
`talcottj@ballardspahr.com
`hensleya@ballardspahr.com
`
`Counsel for Defendant GoDaddy.com, LLC
`
`
`
`

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`Case 1:19-cv-01937-MFK-JLH Document 276 Filed 01/13/23 Page 2 of 28 PageID #: 39331
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`Washington, DC 20036
`(202) 429-8131
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`Attorneys for Plaintiff Express Mobile, Inc.
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`

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`Case 1:19-cv-01937-MFK-JLH Document 276 Filed 01/13/23 Page 3 of 28 PageID #: 39332
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`
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`TABLE OF CONTENTS
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`I.
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`NATURE OF THE CASE AND THE PLEADINGS ...........................................................1
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`A.
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`Statement Regarding the Scope of the Issues to be Tried ........................................3
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`II.
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`JURISDICTION ...................................................................................................................7
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`III.
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`JOINT STATEMENT OF ADMITTED FACTS .................................................................7
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`IV.
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`STATEMENT OF THE FACTS WHICH REMAIN TO BE LITIGATED .........................7
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`V.
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`STATEMENT OF THE ISSUES OF LAW WHICH REMAIN TO BE LITIGATED .......8
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`VI.
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`PARTIES’ TRIAL EXHIBITS .............................................................................................8
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`A.
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`B.
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`Stipulations Concerning Trial Exhibits ....................................................................8
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`Procedures for the Disclosure of Trial Exhibits and Demonstrative Exhibits .......12
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`VII. TRIAL WITNESSES ..........................................................................................................14
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`A.
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`B.
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`List of Witnesses to be Called ...............................................................................14
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`Testimony by Deposition .......................................................................................16
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`VIII. PARTIES’ BRIEF STATEMENT OF INTENDED PROOFS ..........................................18
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`A.
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`B.
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`Express Mobile’s Statement ..................................................................................18
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`GoDaddy’s Statement ............................................................................................18
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`IX. AMENDMENTS TO PLEADING .....................................................................................18
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`X. MOTIONS IN LIMINE .......................................................................................................18
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`XI. CERTIFICATION OF GOOD FAITH SETTLEMENT EFFORTS ..................................19
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`XII. OTHER MATTERS............................................................................................................19
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`A.
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`Jury Trial ................................................................................................................19
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`B. Witness Sequestration ............................................................................................19
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`C.
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`D.
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`E.
`
`F.
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`Length of Trial .......................................................................................................20
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`Order of Presentation .............................................................................................20
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`Handling of Confidential Information at Trial .......................................................22
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`Updates to Proposed Pretrial Order .......................................................................23
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`G.
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`Supplemental Damages Calculations .....................................................................23
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`
`
`i
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`

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`Case 1:19-cv-01937-MFK-JLH Document 276 Filed 01/13/23 Page 4 of 28 PageID #: 39333
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`I.
`
`NATURE OF THE CASE AND THE PLEADINGS
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`1.
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`This is a patent infringement case. Express Mobile, Inc. (“Express Mobile” or
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`“Plaintiff”) filed a Complaint against GoDaddy.com, LLC (“GoDaddy” or “Defendant”) on
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`October 11, 2019 (D.I. 1) which alleged infringement of U.S. Patent Nos. 6,546,397 (“the ’397
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`patent”), 7,594,168 (“the ’168 patent”), 9,063,755 (“the ’755 patent”), 9,471,287 (“the ’287
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`patent”), and 9,928,044 (“the ’044 patent”) (collectively, the “Asserted Patents”).
`
`2.
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`On December 12, 2019, GoDaddy filed its Answer, Affirmative Defenses and
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`Counterclaims (D.I. 9), denying infringement, raising various affirmative defenses, and asserting
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`counterclaims for a declaratory judgment of non-infringement and a declaratory judgment of
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`invalidity of the ’397 patent, the ’168 patent, the ’755 patent, the ’287 patent and the ’044 patent.
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`On January 2, 2020, Express Mobile filed its Answer and Affirmative Defenses to GoDaddy’s
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`Counterclaims (D.I. 11).
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`3.
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`On January 19, 2021, Express Mobile filed its First Amended Compliant (D.I.
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`47). On February 2, 2021, GoDaddy filed its Answer, Affirmative Defenses, and Counterclaims
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`to Express Mobile’s First Amended Complaint (D.I. 49). On February 23, 2021, Express Mobile
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`filed its Answers and Affirmative Defenses to GoDaddy’s Counterclaims (D.I. 53).
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`4.
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`Both Express Mobile and GoDaddy demanded a jury trial on all issues triable by a
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`jury.
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`5.
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`Express Mobile’s original Complaint and First Amended Compliant asserted
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`infringement of at least claim 1 of the ’397 patent; at least claim 1 of the ’168 patent; at least
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`claim 12 of the ’755 patent; at least claim 15 of the ’287 patent; and at least claim 15 of the ’044
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`patent.
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`6.
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`Express Mobile later identified the asserted claims as at least claims 1, 2, 3, 11,
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`1
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`

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`Case 1:19-cv-01937-MFK-JLH Document 276 Filed 01/13/23 Page 5 of 28 PageID #: 39334
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`and 37 of the ʼ397 patent; at least claims 1, 2, and 3 of the ʼ168 patent; at least claims 1, 3, 12,
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`16, and 22 of the ʼ755 patent; at least claims 1 and 13 of the ʼ287 patent; and at least claims 1,
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`11, 13, 17, and 19 of the ‘044 patent.
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`7.
`
`The ’397 and ’168 patents relate to a web browser-based build tool for allowing a
`
`user to build a website. The ’397 and ’168 patents describe an architecture that includes a run
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`time generation procedure and a database with user selected settings. These patents also describe
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`a WYSIWYG (what you see is what you get) website building process, where the web designer
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`is able to see how the website will appear as the design process progresses.
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`8.
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`The ’755, ’287, and ’044 patents relate to a system for allowing the display of
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`web service content on a device. The system includes a database of web services obtainable over
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`a network and an authoring tool that defines an object for presentation on the display. The ’755,
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`’287, and ’044 patents describe the use of symbolic names that are related to inputs and outputs
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`of web services and can be associated with user interface objects displayed on the device. The
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`system also includes code to be sent to the device, including an application and a player.
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`9.
`
`The Honorable Judge Richard G. Andrews held a claim construction hearing on
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`April 8, 2021 and issued a Claim Construction Memorandum Opinion on June 1, 2021 (D.I.
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`121). The Court entered the Order on Claim Construction on June 8, 2021 (D.I. 129). Per the
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`Court’s request, the parties submitted additional claim construction briefing on the terms “virtual
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`machine” and “player” (D.I. 120).
`
`10.
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`On November 17, 2021, the parties filed Summary Judgment and Daubert
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`motions. Express Mobile moved for Summary Judgment of no invalidity under 35 U.S.C. §§
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`101 and 112 and of no equitable defenses. Express Mobile moved to exclude certain expert
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`testimony from GoDaddy’s damages expert opinions. GoDaddy moved for Summary Judgment
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`2
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`

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`Case 1:19-cv-01937-MFK-JLH Document 276 Filed 01/13/23 Page 6 of 28 PageID #: 39335
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`of non-infringement of all of the Asserted Patents relating to certain claim limitations, and that
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`there is no direct or indirect infringement. GoDaddy also moved for Summary Judgment of no
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`willful infringement. GoDaddy moved to exclude certain expert testimony from Express
`
`Mobile’s damages expert and technical expert.
`
`11.
`
`On April 1, 2022, this case was reassigned to visiting Judge Matthew F. Kennelly
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`of the U.S. District Court for the Northern District of Illinois.
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`12.
`
`The Honorable Judge Matthew F. Kennelly issued a Memorandum Opinion and
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`Order on August 8, 2022 (D.I. 261), which addressed claim construction, the parties’ respective
`
`motions to strike, and the parties’ respective Summary Judgment and Dabuert motions. On
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`August 15, 2022, Express Mobile filed a motion for reargument (D.I. 262). On August 22, 2022,
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`GoDaddy filed an opposition to Express Mobile’s motion for reargument (D.I. 267). On October
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`27, 2022, the Court issued an oral order denying the motion for reargument (D.I. 271).
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`13.
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`There are currently no pending motions or issues for the Court to resolve.
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`A. Statement Regarding the Scope of the Issues to be Tried
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`14.
`
`The jury trial will address Express Mobile’s claims that GoDaddy infringes
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`certain asserted claims of the’755, ’287, and ’044 patents; and whether Express Mobile is
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`entitled to damages in the amount of no less than a reasonable royalty for GoDaddy’s
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`infringement.1 The jury trial will address claims 1, 3, 12, 16, and 22 of the ’755 patent; claims 1
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`and 13 of the ’287 patent; and claims 1, 11, 13, 17, and 19 of the ’044 patent (collectively, the
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`“Asserted Claims”).
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`[EXPRESS MOBILE’S POSITION: The trial should also address Express Mobile’s claim that
`
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`1 For the purposes of trial, the Asserted Patents are the ’755 patent, the ’287 patent, and the ’044
`patent.
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`3
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`

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`Case 1:19-cv-01937-MFK-JLH Document 276 Filed 01/13/23 Page 7 of 28 PageID #: 39336
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`GoDaddy willfully infringes the Asserted Patents. The Court denied GoDaddy’s motion for
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`summary judgment regarding willfulness. D.I. 261 at 30, 52 (The Court… otherwise denies
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`GoDaddy’s motion for summary judgment [including willfulness].”). The Court’s findings
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`regarding different notice dates for different patents were not a grant of summary judgment, as
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`noted above the Court specifically denied summary judgment. Express Mobile properly plead
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`willful infringement for the Asserted Patents, including that, at the very least, GoDaddy willfully
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`infringed from the date of the complaint consistent with law of this district and other courts. D.I.
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`1 ¶¶ 81-107, 128-132, 158-162; see, e.g., See Extang Corp. v. Truck Accessories Grp., LLC, No.
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`CV 19-923 (KAJ), 2022 WL 607868, at *2, n.1 (D. Del. Feb. 18, 2022) (acknowledging that in
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`D. Del. post-suit knowledge and post-filing conduct can be willful “particularly if there is no
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`evidence that [infringer] halted allegedly infringing activities even after receiving notice”);
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`NexStep, Inc. v. Comcast Cable Commc’ns, LLC, CV 19-1031-RGA-SRF, 2019 WL 5626647, at
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`*3 (D. Del. Oct. 31, 2019) ), report and recommendation adopted sub nom. Nexstep, Inc. v.
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`Comcast Cable Commc'n, LLC, No. CV 19-1031-RGA, 2019 WL 11663798 (D. Del. Nov. 15,
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`2019) (denying MTD because complaint states a claim for post-suit willful infringement);
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`Finjan, Inc. v. ESET, LLC, No. 3:17-cv-0183-CAB-(BGS), 2017 U.S. Dist. LEXIS 40784, at
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`*10-11 (S.D. Cal. Mar. 21, 2017) (denying MTD regarding post complaint willful infringement
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`and noting that ESET may introduce evidence of steps it took to address its response to Finjan’s
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`notice). GoDaddy makes new arguments that summary judgment should be granted on post
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`complaint willfulness, but GoDaddy failed to make that argument or cite the cases it asserts now
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`during summary judgment. New motions for summary judgment or reargument of the Court’s
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`4
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`

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`Order denying summary judgment should not be made in a paragraph in the Pretrial Order.2
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`GoDaddy’s attempt to reargue summary judgment or seek reconsideration of an issue of law
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`through a paragraph in the pretrial order is improper and should be summarily denied. D&M
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`Holdings, Inc. v. Sonos, Inc., 1:16-cv-00141-RGA (D. Del. Feb. 22, 2018) (denying MIL to
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`exclude willfulness evidence because it is an “untimely summary judgment argument.”).
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`
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`Express Mobile seeks treble damages, its costs and reasonable attorneys’ fees as
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`provided by 35 U.S.C. §§ 284 and 285. Express Mobile claims that it is entitled to post-judgment
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`and pre-judgment interest.]
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`15.
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`[GODADDY’S POSITION: The jury trial should not address Express Mobile’s
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`claim that GoDaddy willfully infringes the Asserted Patents, or whether Express Mobile is
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`entitled to treble damages for any willfulness. The Court fully disposed of willful infringement
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`at summary judgment as to the Asserted Patents. (D.I. 261 at 30 n.4 (“Express Mobile does not
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`contend—and the evidence does not support—that [Express Mobile’s willfulness evidence]
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`informed GoDaddy of the possibility that it infringed the ‘755, ‘287, or ‘044 patents.”)). The
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`Court ruled the totality of Express Mobile’s evidence of willfulness created a triable issue as to a
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`potential inference of willfulness, but only as to the first family of patents at issue, the ʼ397 and
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`ʼ168 patents, which are now removed from the case for trial given summary judgment of non-
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`infringement. Because willfulness is no longer at issue in this case for trial, evidence related to
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`willfulness is irrelevant, and the presentation of such evidence would be substantially and
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`unfairly prejudicial to GoDaddy. Delaware courts that have dealt with similar cases at this
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`2 [GoDaddy’s position: As described below, GoDaddy is not rearguing summary judgement, but
`merely requesting that the issues in the case conform with the summary judgement decision of this
`Court and the removal of the first family of Asserted Patents from the case.]
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`5
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`

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`Case 1:19-cv-01937-MFK-JLH Document 276 Filed 01/13/23 Page 9 of 28 PageID #: 39338
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`advanced stage of litigation agree,3 finding the complaint alone fails to provide a basis to assert
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`willful infringement. See iFIT Inc. v. Peloton Interactive, Inc., No. 21-507-RGA, 2022 U.S. Dist.
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`LEXIS 15843, at *4-5 (D. Del. Jan. 28, 2022) (using the complaint “as a basis to allege
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`knowledge for a willful infringement claim” does not sufficiently allege knowledge of the
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`asserted patent for willful infringement); see also ZapFraud, Inc. v. Barracuda Networks, Inc.,
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`528 F. Supp. 3d 247, 251-52 (D. Del. 2021) (concluding that post-Halo, “pre-suit knowledge of
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`the asserted patents [is] especially warranted for enhanced damages” so to preclude
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`“opportunistic plaintiffs [from] spring[ing] suits for patent infringement on innocent actors who
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`have no knowledge of the existence of the asserted patents.”); Wrinkl, Inc. v. Facebook, Inc., No.
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`20-cv-1345-RGA, 2021 U.S. Dist. LEXIS 188085, at *22 (D. Del. Sept. 20, 2021) (dismissing
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`plaintiff’s willful infringement claims in recognition of the fact that “if all that is required is the
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`filing of a complaint and a plausible allegation of infringement, then every case would be a
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`willful infringement case.”). That is the case here, for Express Mobile asserts no facts to support
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`willfulness other than notice of the patents by virtue of the complaint. GoDaddy is also not re-
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`arguing summary judgment, but rather merely following this Court’s prior ruling at summary
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`judgment finding that the evidence concerning the first family does not support Express Mobile’s
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`argument that GoDaddy willfully infringed the second family. See D.I. 261 at 30, n.4.
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`The jury trial will also address GoDaddy’s affirmative defenses and counterclaims to the
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`claims. These include the following: GoDaddy claims a) it does not infringe any of the asserted
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`claims; b) the asserted claims are invalid under 35 U.S.C. § 103, in view of various prior art
`
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`3 Express Mobile’s cases are distinguishable, including because they largely involve pre-suit
`knowledge of at least one asserted patent or pertain to district courts’ decisions at early stages of
`litigation. See Extang Corp., 2022 U.S. Dist. LEXIS 32542 (defendant had pre-suit notice of two
`of the three asserted patents); NexStep, 2019 WL 5626647 (denying dismissal of willfulness claims
`at motion to dismiss); Finjan, 2017 U.S. Dist. LEXIS 40784 (same).
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`6
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`

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`grounds;4 d) Express Mobile is entitled to no damages; and e) GoDaddy is entitled to its costs
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`and reasonable attorneys’ fees as provided by 35 U.S.C. §§ 284 and 285.]
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`II.
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`JURISDICTION
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`16.
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`This action arose under the Patent Infringement Act, 35 U.S.C. § 271, and under
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`the Patent Laws of the United States, Title 35 of the United States Code.
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`17.
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`The Counterclaims for declaratory judgment of non-infringement and invalidity
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`arose under the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202, and under the patent laws
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`of the United States, 35 U.S.C. §§ 1 et seq.
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`18.
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`This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 1338(a),
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`2201, and 2202. No party contests personal or subject matter jurisdiction.
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`19.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)–(c) and §1400(b).
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`III.
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`JOINT STATEMENT OF ADMITTED FACTS
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`20.
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`The parties’ Joint Statement of Undisputed Facts is attached as Exhibit 1.
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`IV.
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`STATEMENT OF THE FACTS WHICH REMAIN TO BE LITIGATED
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`21.
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`Express Mobile’s statement of facts that remain to be litigated is attached as
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`Exhibit 2.
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`22.
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`23.
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`GoDaddy’s statement of facts that remain to be litigated is attached as Exhibit 3.
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`The parties reserve the right to modify or supplement their statements of facts that
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`remain to be litigated to the extent necessary to fairly reflect the Court’s rulings on any motions
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`or subsequent orders of the Court or by agreement of the parties.
`
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`4 The prior art includes BlackBerry MDS, iWeb, NexaWeb, Arner, Huang, and Stevens. GoDaddy
`asserted twelve different obviousness combinations, but does not intend to present all twelve
`obviousness combinations at trial. The parties agree that GoDaddy will identify the obviousness
`combinations it intends to present at trial at least two weeks before trial (i.e., no later than February
`13, 2023).
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`7
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`

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`Case 1:19-cv-01937-MFK-JLH Document 276 Filed 01/13/23 Page 11 of 28 PageID #: 39340
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`V.
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`STATEMENT OF THE ISSUES OF LAW WHICH REMAIN TO BE LITIGATED
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`24.
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`Express Mobile’s statement of issues of law that remain to be litigated is attached
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`as Exhibit 4.
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`25.
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`GoDaddy’s statement of issues of law that remain to be litigated is attached as
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`Exhibit 5.
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`26.
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`The parties reserve the right to modify or supplement their statements of issues of
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`law that remain to be litigated to the extent necessary to fairly reflect the Court’s rulings on any
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`motions or subsequent orders of the Court or by agreement of the parties.
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`VI.
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`PARTIES’ TRIAL EXHIBITS
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`27.
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`28.
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`The parties’ list of joint exhibits is attached as Exhibit 6.
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`Express Mobile’s list of exhibits it may offer at trial, including GoDaddy’s
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`objections, is attached as Exhibit 7. A list of GoDaddy’s objection codes is attached as Exhibit
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`7A.
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`29.
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`GoDaddy’s list of exhibits it may offer at trial, including Express Mobile’s
`
`objections, is attached as Exhibit 8. A list of Express Mobile’s objection codes is attached as
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`Exhibit 8A.
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`30.
`
`The parties reserve the right to modify or supplement their trial exhibits lists to
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`the extent necessary to fairly reflect the Court’s rulings on any motions or subsequent orders of
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`the Court or by agreement of the parties.
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`A. Stipulations Concerning Trial Exhibits
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`31.
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`Each party may use an exhibit that is listed on the other party’s exhibit list, to the
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`same effect as though it were listed on its own exhibit list, subject to evidentiary objections. The
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`listing of an exhibit by a party on its exhibit list does not waive any evidentiary or other
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`objections to that exhibit should the opposing party attempt to offer it into evidence.
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`8
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`32.
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`Each exhibit list contains all of the exhibits that a party intends to introduce into
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`evidence at trial other than exhibits used solely for impeachment. Exhibits not listed on a party’s
`
`exhibit list or on the opposing party’s exhibit list will not be admitted into evidence unless good
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`cause is shown.
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`33.
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`Neither party will remove a document from its exhibit list without agreement
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`from the other party, unless it provides the other party the opportunity to add the document to its
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`exhibit list.
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`34.
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`Any description of a document on an exhibit list is provided for convenience only
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`and shall not be used as an admission or otherwise as evidence regarding that document or any
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`other listed document.
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`35.
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`The parties will meet and confer regarding replacing any poor print or digital
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`quality copies of exhibits with substantively identical improved or higher quality or color copies.
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`The parties agree that the websites created for this litigation and relied upon by their respective
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`experts, including buildertestwebsite2.godaddysites.com; ngrayblog.godaddysites.com;
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`20q.c13.myftpupload.com, buildertestwebsite.godaddysites.com, 89d7020d- 2d7d-4a1f-8987-
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`41032824385f.mysimplestore.com, and peterkentsphotos.godaddysites.com shall be kept active
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`and shall not be modified from the versions upon which their experts relied, until the conclusion
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`of trial.
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`36.
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`Legible copies of exhibits may be offered into evidence in lieu of originals,
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`subject to all foundational requirements and other objections that might be made to the
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`admissibility of originals, and subject to the right of the party against whom it is offered to
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`inspect an original upon request reasonably in advance of any proposed use of the copy.
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`Electronic versions of document exhibits in their native format, such as spreadsheets or
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`9
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`presentations, may be offered into evidence in lieu of paper or PDF versions. The parties will
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`exchange replacement versions and/or native versions of exhibits prior to use in trial.
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`37.
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`Demonstrative exhibits do not need to be included on the parties’ respective trial
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`exhibit lists. For purposes of this Pretrial Order, the term “demonstrative exhibits” does not
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`include: (1) exhibits created in the courtroom during testimony or opening at trial, (2) the
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`enlargement, highlighting, or ballooning of a trial exhibit (or parts of a trial exhibit) or a
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`transcript of testimony.
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`38.
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`39.
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`Joint trial exhibits will be identified with JTX numbers, starting with JTX-001.
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`Express Mobile’s trial exhibits will be identified with PTX numbers, starting with
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`PTX-001. Express Mobile’s demonstrative trial exhibits will be identified with PDX, starting
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`with PDX-001.
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`40.
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`GoDaddy’s trial exhibits will be identified with DTX numbers, starting with
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`DTX-001. GoDaddy’s demonstrative trial exhibits will be identified with DDX, starting with
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`DDX-001.
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`41.
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`Any trial exhibit that was produced in discovery in this litigation by a party to this
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`litigation and that on its face appears to have been authored by an employee, officer, or agent of
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`the producing party, shall be deemed a true and correct copy of a document maintained in that
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`party’s files as of the date of the party’s document collection under Federal Rule of Evidence 901
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`and a business record for foundation and hearsay purposes,5 with no need for additional proof of
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`authenticity or business record status at trial provided that the trial exhibit appear to be unaltered
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`5 For clarity, the parties agree that the stipulation as to hearsay in this paragraph only applies to
`the document itself. The parties reserve the right to object to the admission of any statements made
`within a document to the extent they do not otherwise comply with FRE 805 (hearsay within
`hearsay).
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`from the condition in which the document was produced by the producing party.
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`42.
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`The parties further agree that, for purposes of Rule 901 of the Federal Rules of
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`Evidence, they will not object on authenticity grounds to any document on either party’s exhibit
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`list obtained from the Internet Archive’s Wayback Machine or the World Wide Web Consortium
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`(W3C), which the parties agree are true and correct copies of what they purport to be. The
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`parties further agree not to object on hearsay grounds to those documents, which the parties
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`agree are business records under Rule 803(6) of the Federal Rules of Evidence, provided that
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`those documents appear on their face to be authored by a party. The parties agree to negotiate in
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`good-faith to resolve any objections on authenticity, foundation, or hearsay grounds regarding
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`documents on their respective exhibit lists produced by Blackberry, Cameron Bateman, Coach
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`Wei, Michael Arner, Ingenico, NexaWeb, or Apple.
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`43.
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` Paragraph 44-45 does not prohibit the parties from objecting to the admission of
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`any document or thing on any other grounds, and it is agreed that the parties reserve all rights to
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`object to the admission of any exhibit on grounds other than authenticity and the business record
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`exception to hearsay, including that nothing prohibits the parties from objecting to the admission
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`of any document stipulated herein as a “business record” that itself contains hearsay (e.g.,
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`double hearsay). The party that proffers such exhibit bears the burden to establish admissibility
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`of the objectionable double hearsay.
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`44.
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`The parties will meet and confer in a further effort to refine and shorten their
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`exhibit lists and to resolve objections without the Court’s intervention. On or before the first day
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`of trial, each party will deliver to the Courtroom Deputy a completed AO Form 187 (or
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`alternatively formatted document or spreadsheet as permitted by the Court) exhibit list
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`corresponding to their respective final exhibit lists.
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`45.
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`No exhibit will be admitted into evidence unless offered through a witness.
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`Except as provided below with respect to opening statements, exhibits may not be published,
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`displayed, or otherwise shown to the jury until after they have been admitted into evidence.
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`Once admitted, counsel may publish exhibits to the jury without requesting to do so.
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`B. Procedures for the Disclosure of Trial Exhibits and Demonstrative Exhibits
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`46.
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`[Express Mobile’s Position: To the extent any demonstrative includes code, the
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`party must disclose the source, filename, and specific lines of code set forth on the
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`demonstrative. GoDaddy’s request for unilateral disclosure of specific source code is unfounded
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`and improper. GoDaddy gave no reason why Express Mobile would have to do some special
`
`disclosure of source code over and above other pretrial disclosures and why GoDaddy does not
`
`have to provide such similar disclosures. GoDaddy provides no authority or support for such a
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`unilateral and burdensome request.]
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`
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`[GoDaddy’s Position: To the extent Express Mobile intends to introduce any
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`exhibit or demonstrative at trial that includes code (whether it is source code or code viewed
`
`through the use of third-party tool, such as Chrome DevTools), Express Mobile must disclose the
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`source of the code (i.e., where the code was originally disclosed by the party), filename, and
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`specific lines of code that will be used no later than two weeks prior to trial (i.e. by February 13,
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`2023). To the extent the code to be used was disclosed in a screenshot without specific line
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`numbers, Express Mobile shall supplement to identify the line numbers of the code shown in the
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`screenshot at the time of disclosure.]
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`47.
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`A party will provide, together with its identification of a witness to be called (as
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`provided in section VII below) a list of trial exhibits to be used in connection with a direct
`
`examination of that witness by 7:00 p.m. E.T. 2 calendar days before their intended use (by way
`
`of example, for a witness that a party intends to call at any time on Monday, February 27, 2023,
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`the party shall provide its list of direct examination exhibits by 7:00 p.m. E.T. on Saturday,
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`February 25, 2023).
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`48.
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`Any objections by the opposing party will be provided no later than 9:00 p.m.
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`E.T. the same day. The parties shall meet and confer by 10:00 p.m. E.T. that same day to resolve
`
`any objections to the exhibits. If good faith efforts to resolve the objections fail, the party
`
`objecting to the exhibits shall bring its objections to the Court’s attention the following morning
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`(1 day before use). The parties also agree to provide opposing counsel with one set of all exhibits
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`to be used in direct and/or cross examination at the time of that examination.
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`49.
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`A party shall provide a color PDF or PowerPoint copy, or for videos or
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`animations an appropriate video format, of demonstrative exhibits to be used in connection with
`
`a direct examination by 7:00 p.m. E.T. 1 calendar day before their intended use (by way of
`
`example, for a witness that a party intends to call at any time on Monday, February 27, 2023, the
`
`party shall provide its demonstrative exhibits by 7:00 p.m. E.T. on Sunday, February 26, 2023).
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`Objections to any such demonstrative exhibits shall be made by 9:00 p.m. E.T. that same day.
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`The parties will meet and confer on any objections by 10:00 p.m. E.T. that same day. If good
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`faith efforts to resolve the objections fail, the party objecting to the exhibits shall bring its
`
`objections to the Court’s attention the following morning.
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`50. With respect to opening statements, the parties shall identify any evidence (e.g.,
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`trial exhibits or designated deposition testimony, discussed below) and demonstrative exhibits
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`they intend to use by 5:00 p.m. E.T. on Sunday, February 26, 2023. The parties will not play any
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`deposition testimony during opening statements. The parties shall make objections, if any, to the
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`evidence disclosed by 9:00 p.m. E.T. that day and shall promptly meet and confer on any such
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`objections. [Express Mobile’s Position: With respect to closing statements the parties do not
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`need to exchange any demonstratives prior to closing statements.] [GoDaddy’s Position: With
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`respect to closing statements, the parties shall exchange any intended demonstratives one hour
`
`prior to the start of court on the day the closing statements are to be given, and shall make any
`
`objections before the Court.]
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`VII. TRIAL WITNESSES
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`A. List of Witnesses to be Called
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`51.
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`A list of witnesses that Express Mobile will or may call in person or by deposition
`
`at trial is attached as Exhibit 9.
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`52.
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`A list of wi