Case 1:20-cv-00371-LPS Document 83 Filed 06/21/21 Page 1 of 17 PageID #: 2887
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
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`FINJAN LLC,
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`Plaintiff,
`
`v.
`
`)
`)
`)
`)
`)
`) C.A. No. 20-371-LPS
`)
`)
`TRUSTW A VE HOLDINGS, INC., and
`SINGAPORE TELECOMMUNICATIONS )
`LIMITED,
`)
`)
`)
`
`Defendants.
`
`2Li-r-'
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`[PltOP6~FD) SCHEDULING ORDER
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`This_ day of June, 2021 , the Court having ordered that the parties submit a
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`scheduling order for the claims and defenses of plaintiffFinjan LLC and defendant
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`Trustwave Holdings, Inc., and those parties having determined after discussion that the
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`matter cannot be resolved at this juncture by settlement, voluntary mediation, or binding
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`arbitration;
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`IT IS HEREBY ORDERED that the following schedule shall apply as to the
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`claims and defenses ofFinjan and Trustwave, and that any further proceedings regarding
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`defendant Singapore Telecommunications Ltd. shall be the subject of a separate
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`scheduling order:
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`1.
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`Rule 26(a)(l) Initial Disclosures and E-Discovery Default Standard.
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`Unless otherwise agreed to by the parties, the parties shall make their initial disclosures
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`pursuant to Federal Rule of Civil Procedure 26(a)(l) within ten (10) days of the date of
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`this Order. If they have not already done so, the parties are to review the Court's Default
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`Standard for Discovery, Including Discovery of Electronically Stored Information
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`Case 1:20-cv-00371-LPS Document 83 Filed 06/21/21 Page 2 of 17 PageID #: 2888
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`("ESI") (which is posted at http://www.ded.uscourts.gov ; see Other Resources, Default
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`Standards for Discovery, and is 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
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`other parties, and to amend or supplement the pleadings, shall be filed on or before
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`January 19, 2022.
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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
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`the disclosure of confidential information, counsel should confer and attempt to reach an
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`agreement on a proposed form of order and submit it to the Court within thirty (30) days
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`from the date of this Order. Should counsel be unable to reach an agreement on a
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`proposed form of order, 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
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`Administrative Procedures Governing Filing and Service by Electronic Means, a redacted
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`version of any sealed document shall be filed electronically within seven (7) days of the
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`2
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`Case 1:20-cv-00371-LPS Document 83 Filed 06/21/21 Page 3 of 17 PageID #: 2889
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`filing of the sealed document. Should any party intend to request to seal or redact all or
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`any portion of a transcript of a court proceeding (including a teleconference), such party
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`should expressly note that intent at the start of the court proceeding. Should the party
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`subsequently choose to make a request for sealing or redaction, it must, promptly after
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`the completion of the transcript, file with the Court a motion for sealing/redaction, and
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`include as attachments (1) a copy of the complete transcript highlighted so the Court can
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`easily identify and read the text proposed to be sealed/redacted, and (2) a copy of the
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`proposed redacted/sealed transcript. With their request, the party seeking redactions must
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`demonstrate why there is good cause for the redactions and why disclosure of the
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`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
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`are governed by paragraph 8(g), and the final pretrial order, which is governed by
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`paragraph 20, the parties shall provide to the Court two (2) courtesy copies of all briefs
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`and one ( 1) courtesy copy of any other document filed in support of any briefs (i.e.,
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`appendices, exhibits, declarations, affidavits etc.). This provision also applies to papers
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`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
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`Court:
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`a.
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`By July 21 , 2021 , 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
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`3
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`Case 1:20-cv-00371-LPS Document 83 Filed 06/21/21 Page 4 of 17 PageID #: 2890
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`patent(s) that the accused product(s) allegedly infringe(s). Plaintiff shall also produce the
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`file history for each asserted patent.
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`b.
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`By August 27, 2021, Defendant shall produce core technical
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`documents related to the accused product(s), sufficient to show how the accused
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`product(s) work(s including but not limited to non-publicly available operation manuals,
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`product literature, schematics, and specifications. Defendant shall also produce sales
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`figures for the accused product(s).
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`c.
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`By September 15, 2021, Plaintiff shall produce an initial claim
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`chart relating each known accused product to the asserted claims each such product
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`allegedly infringes.
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`d.
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`By October 20, 2021, 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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`By July 14, 2022, Plaintiff shall provide final infringement
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`contentions.
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`contentions.
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`f.
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`By August 25, 2022, Defendant shall provide final invalidity
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`8.
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`Discovery. Unless otherwise ordered by the Court, the limitations on
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`discovery 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
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`that it will be completed on or before September 1 2022.
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`b.
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`Document Production. Document production shall be substantially
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`complete by April 21 , 2022.
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`c.
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`Requests for Admission. A maximum of 200 requests for
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`4
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`admission are permitted for each side.
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`d.
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`Interrogatories.
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`1.
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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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`11.
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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
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`of agreement among the parties, contention interrogatories,
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`if filed, shall first be addressed by the party with the burden
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`of proof. The adequacy of all interrogatory answers shall be
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`judged by the level of detail each party provides; i.e., the
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`more detail a party provides, the more detail a party shall
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`receive.
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`e.
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`Depositions.
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`1.
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`Limitation on Hours for Deposition Discovery. Each side is
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`limited to a total of 40 hours of taking testimony by
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`deposition upon oral examination.
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`11.
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`Location of Depositions. Any party or representative
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`( officer, director, or managing agent) of a party filing a
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`civil action in this district court must ordinarily be required,
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`upon request, to submit to a deposition at a place
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`designated within this district. Exceptions to this general
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`rule may be made by order of the Court. A defendant who
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`becomes a counterclaimant, cross-claimant, or third-party
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`5
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`Case 1:20-cv-00371-LPS Document 83 Filed 06/21/21 Page 6 of 17 PageID #: 2892
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`plaintiff shall be considered as having filed an action in this
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`Court for the purpose of this provision.
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`f.
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`Disclosure of Expert Testimony.
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`1.
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`Expert Reports. For the party who has the initial burden of
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`proof on the subject matter, the initial Federal Rule
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`26(a)(2) disclosure of expert testimony is due on or before
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`September 29, 2022. The supplemental disclosure to
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`contradict or rebut evidence on the same matter identified
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`by another party is due on or before October 20, 2022.
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`Reply expert reports from the party with the initial burden
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`of proof are due on or before November 10, 2022. No
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`other expert reports will be permitted without either the
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`consent of all parties or leave of the Court. Along with the
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`submissions of the expert reports, the parties shall advise
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`of the dates and times of their experts' availability for
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`deposition. All expert discovery shall be completed by
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`December 1, 2022.
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`n.
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`Expert Report Supplementation. The parties agree they
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`will not permit expert declarations to be filed in
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`connection with motions briefing (including case(cid:173)
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`dispositive motions).
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`m.
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`Objections to Expert Testimony. To the extent any
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`objection to expert testimony is made pursuant to the
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`6
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`Case 1:20-cv-00371-LPS Document 83 Filed 06/21/21 Page 7 of 17 PageID #: 2893
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`principles announced in Daubert v. Merrell Dow Phann.,
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`Inc., 509 U.S. 579 (1993), as incorporated in Federal Rule
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`of Evidence 702, it shall be made by motion no later than
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`the deadline for dispositive motions set forth herein,
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`unless otherwise ordered by the Court. Briefing on such
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`motions is subject to the page limits set out in connection
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`with 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
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`the following procedures will be denied without prejudice
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`to renew pursuant to these procedures.
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`ii.
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`Should counsel find, after good faith efforts - including
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`verbal communication among Delaware and Lead Counsel
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`for all parties to the dispute- that they are unable to resolve
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`a discovery matter or a dispute relating to a protective
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`order, the parties involved in the discovery matter or
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`protective order dispute shall submit a joint letter in
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`substantially the following form:
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`Dear Judge Stark:
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`The parties in the above(cid:173)
`referenced matter write to request the
`scheduling of a discovery
`teleconference.
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`The following attorneys,
`including at least one Delaware
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`7
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`Case 1:20-cv-00371-LPS Document 83 Filed 06/21/21 Page 8 of 17 PageID #: 2894
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`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: - - - - - -
`
`Lead Counsel: - - - - - -
`
`The disputes requiring judicial
`attention are listed below:
`[provide here a non-argumentative
`list of disputes requiring judicial
`attention]
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`m.
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`On a date to be set by separate order, generally not less
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`than forty-eight ( 48) hours prior to the conference, the party
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`seeking relief shall file with the Court a letter, not to exceed
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`three (3) pages, outlining the issues in dispute and its
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`position on those issues. On a date to be set by separate
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`order, but generally not less than twenty-four (24) hours
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`prior to the conference, any party opposing the application
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`for relief may file a letter, not to exceed three (3) pages,
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`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
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`discovery letter and any attachments.
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`v.
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`Should the Court find further briefing necessary upon
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`conclusion of the telephone conference, the Court will
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`order it. Alternatively, the Court may choose to resolve the
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`dispute prior to the telephone conference and will, in that
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`8
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`Case 1:20-cv-00371-LPS Document 83 Filed 06/21/21 Page 9 of 17 PageID #: 2895
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`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
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`pleading shall NOT be accompanied by an opening brief but shall, instead, be
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`accompanied by a letter, not to exceed three (3) pages, describing the basis for the
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`requested relief, and shall attach the proposed amended pleading as well as a "blackline"
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`comparison to the prior pleading.
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`b. Within seven (7) days after the filing of a motion in compliance
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`with this Order, any party opposing such a motion shall file a responsive letter, not to
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`exceed five (5) pages.
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`c. Within three (3) days thereafter, the moving party may file a reply
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`letter, not to exceed two (2) pages, and, by this same date, the parties shall file a letter
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`requesting a 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
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`exceed three (3) pages, describing the basis for the requested relief, and shall attach the
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`document to be stricken.
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`b.
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`Within seven (7) days after the filing of a motion in compliance
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`with this Order, any party opposing such a motion shall file a responsive letter, not to
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`exceed five (5) pages.
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`c.
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`Within three (3) days thereafter, the moving party may file a reply
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`letter, not to exceed two (2) pages, and, by this same date, the parties shall file a letter
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`9
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`Case 1:20-cv-00371-LPS Document 83 Filed 06/21/21 Page 10 of 17 PageID #: 2896
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`requesting a 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
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`otherwise ordered by the Court, the parties shall provide the Court, no later than the date
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`on which Plaintiffs opening claim construction brief is due, a tutorial on the technology
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`at issue. In that regard, the parties may separately or jointly submit a DVD of not more
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`than thirty (30) minutes. The tutorial should focus on the technology in issue and should
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`not be used for argument. The parties may choose to file their tutorial(s) under seal,
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`subject to any protective order in effect. Each party may comment, in writing (in no more
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`than five (5) pages) on the opposing party's tutorial. Any such comment shall be filed no
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`later than the date on which Defendant's answering claim construction brief is due. As to
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`the format selected, the parties should confirm the Court's technical abilities to access the
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`information contained in the tutorial (currently best are "mpeg" or "quicktime").
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`12.
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`Claim Construction Issue Identification. On November 11 , 2021 , the
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`parties shall exchange a list of those claim term(s)/phrase(s) that they believe need
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`construction and their proposed claim construction of those term(s)/phrase(s). This
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`document will not be filed with the Court. Subsequent to exchanging that list, the parties
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`will meet and confer to prepare a Joint Claim Construction Chart to be submitted on
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`December 2, 2021 . The parties' Joint Claim Construction Chart should identify for the
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`Court the term(s)/phrase(s) of the claim(s) in issue, and should include each party's
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`proposed construction of the disputed claim language with citation(s) only to the intrinsic
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`evidence in support of their respective proposed constructions. A copy of the patent(s) in
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`issue as well as those portions of the intrinsic record relied upon shall be submitted with
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`this Joint Claim Construction Chart. In this joint submission, the parties shall not provide
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`10
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`Case 1:20-cv-00371-LPS Document 83 Filed 06/21/21 Page 11 of 17 PageID #: 2897
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`argument.
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`13.
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`Claim Construction Briefing. 1 Plaintiff shall serve, but not file, its
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`opening brief not to exceed 5,000 words, on January 13, 2022. Defendant shall serve, but
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`not file, its answering brief, not to exceed 7,500 words, on February 3, 2022. Plaintiff
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`shall serve, but not file, its reply brief, not to exceed 5,000 words, on February 24, 2022.
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`Defendant shall serve, but not file, its sur-reply brief, not to exceed 2,500 words, on
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`March 17, 2022. No later than March 24, 2022, the parties shall file a Joint Claim
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`Construction Brief. The parties shall copy and paste their unfiled briefs into one brief,
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`with their positions on each claim term in sequential order, in substantially the form
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`below.
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`JOINT CLAIM CONSTRUCTION BRIEF
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`I. Representative Claims
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`II. Agreed-upon Constructions
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`III. Disputed Constructions
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`A. [TERM 1]2
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`1. Plaintiff's Opening Position
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`2. Defendant's Answering Position
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`1 As each brief is written and provided to the opposing party, the individual responsible
`for verifying the word count will represent to the other party that it has so verified and by
`what means. These verifications should not be provided to the Court unless a dispute
`arises about them. Pictures, Figures copied from the patent, and other illustrations do not
`count against the word limit. Plaintiff should include with its opening brief one or more
`representative claims with the disputed terms italicized. Should Defendant want to add
`additional representative claims, Defendant may do so. The representative claims and the
`agreed-upon claim constructions do not count against the word limits.
`
`2 For each term in dispute, there should be a table or the like setting forth the term in
`dispute and the parties' competing constructions. The table does not count against the
`word limits.
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`11
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`

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`Case 1:20-cv-00371-LPS Document 83 Filed 06/21/21 Page 12 of 17 PageID #: 2898
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`3. Plaintiffs Reply Position
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`4. Defendant's Sur-Reply Position
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`B. [TERM2]
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`1. Plaintiffs Opening Position
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`2. Defendant's Answering Position
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`3. Plaintiffs Reply Position
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`4. Defendant's Sur-Reply Position
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`Etc. The parties need not include any general summaries of the law relating to
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`claim construction. If there are any materials that would be submitted in an appendix, the
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`parties shall submit them in a Joint Appendix.
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`14.
`
`.
`earmg on
`H
`
`, : oO
`.
`.
`B
`.
`Cl . C
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`A.
`aim onstruct1on. egmnmg at _ t>..m. on pn _-<_J_ ,
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`2022, the Court will hear argument on claim construction. The parties shall notify the
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`Court, by joint letter submission, no later than the date on which Plaintiffs reply claim
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`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
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`hearing. Provided that the parties comply with all portions of this Scheduling Order, and
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`any other orders of the Court, the parties should anticipate that the Court will issue its
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`claim construction order within sixty ( 60) days of the conclusion of the claim
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`construction hearing. If the Court is unable to meet this goal, it will advise the parties no
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`later than sixty (60) days after the conclusion of the claim construction hearing.
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`15.
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`Interim Status Report. On April 28, 2022, counsel shall submit a joint
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`letter to the Court with an interim report on the nature of the matters in issue and the
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`progress of discovery to date. Thereafter, if the Court deems it necessary, it will schedule
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`12
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`Case 1:20-cv-00371-LPS Document 83 Filed 06/21/21 Page 13 of 17 PageID #: 2899
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`a status conference.
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`16.
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`Supplementation. Absent agreement among the parties, and approval of
`
`the Court, no later than June 15, 2022 the parties must finally supplement, inter alia, the
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`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 affidavits, if any, in support of the motion shall be served and filed on or before
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`December 22, 2022. Answering briefs shall be served and filed on or before January 19,
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`2023. Reply briefs shall be served and filed on or before February 9, 2023.
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`a.
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`No early motions without leave. No case dispositive motion under
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`Rule 56 may be filed more than ten (10) days before the above date without
`
`leave of the Court.
`
`b.
`
`Page limits combined with Daubert motion page limits. Each party
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`is permitted to file as many case dispositive motions as desired; provided,
`
`however, that each SIDE will be limited to a combined total of 40 pages for
`
`all opening briefs, a combined total of 40 pages for all answering briefs, and a
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`combined total of 20 pages for all reply briefs regardless of the number of
`
`case dispositive motions that are filed. In the event that a party files, in
`
`addition to a case dispositive motion, a Daubert motion to exclude or preclude
`
`all or any portion of an expert's testimony, the total amount of pages permitted
`
`for all case dispositive and Daubert motions shall be increased to 50 pages for
`
`all opening briefs, 50 pages for all answering briefs, and 25 pages for all reply
`
`briefs for each SIDE. 3
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`3 1 The parties must work together to ensure that the Court receives no more than a total
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`13
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`Case 1:20-cv-00371-LPS Document 83 Filed 06/21/21 Page 14 of 17 PageID #: 2900
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`c.
`
`Hearing. The Court will hear argument on all pending case
`-hd, .
`~
`dispositive and Daubert motions o n~ 11.._, 2023, beginning at ~
`
`q_.m. Subject to further order of the Court, each side will be allocated a total of
`
`forty-five ( 45) minutes to present its argument on all pending motions.
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`18.
`
`Applications by Motion. Except as otherwise specified herein, any
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`application to the Court shall be by written motion filed with the Clerk. Any non(cid:173)
`
`dispositive motion should contain the statement required by Local Rule 7 .1.1.
`J """e.
`Pretrial Conference. On Mey ~ ' 2023, the Court will hold a pretrial
`
`conference in Court with counsel beginning at \l ::~m. Unless otherwise ordered by the
`
`19.
`
`Court, the parties should assume that filing the pretrial order satisfies the pretrial
`
`disclosure requirement of Federal Rule of Civil Procedure 26(a)(3). The parties shall file
`
`with the Court the joint proposed final pretrial order with the information required by the
`
`form of Revised Final Pretrial Order- Patent, which can be found on the Court's website
`
`(www.ded.uscourts.gov), on or before ~
`
`ay ~3 , 2023. Unless otherwise ordered
`
`by the Court, the parties shall comply with the timeframes set forth in Local Rule
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`16.3( d)(l)-(3) for the preparation of the joint proposed final pretrial order. The parties
`
`shall provide the Court two (2) courtesy copies of the joint proposed final pretrial order
`
`and all attachments. As noted in the Revised Final Pretrial Order- Patent, the parties shall
`
`include in their joint proposed final pretrial order, among other things:
`
`a.
`
`a request for a specific number of hours for their trial presentations, as
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`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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`14
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`Case 1:20-cv-00371-LPS Document 83 Filed 06/21/21 Page 15 of 17 PageID #: 2901
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`well as a requested number of days, based on the assumption that in a typical jury
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`trial day (in which there is not jury selection, jury instruction, or deliberations), there
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`will be 5 ½ to 6 ½ hours of trial time, and in a typical bench trial day there will be 6
`
`to 7 hours of trial time;
`
`b.
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`their position as to whether the Court should allow objections to efforts to
`
`impeach a witness with prior testimony, including objections based on lack of
`
`completeness and/or lack of inconsistency;
`
`c.
`
`their position as to whether the Court should rule at trial on objections to
`
`expert testimony as beyond the scope of prior expert disclosures, taking time from the
`
`parties' trial presentation to argue and decide such objections, or defer ruling on all
`
`such objections unless renewed in writing following trial, subject to the proviso that a
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`party prevailing on such a post-trial objection will be entitled to have all of its costs
`
`associated with a new trial paid for by the party that elicited the improper expert
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`testimony at the earlier trial; and
`
`d.
`
`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
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`break, whether the jury should be in or out of the courtroom, and whether such
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`motions may be supplemented in writing.
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`20. Motions in Limine. Motions in limine shall not be separately filed. All in
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`limine requests and responses thereto shall be set forth in the proposed pretrial order.
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`Each SIDE shall be limited to three (3) in limine requests, unless otherwise permitted by
`
`the Court. The in limine request and any response shall contain the authorities relied
`
`upon; each in limine request may be supported by a maximum of three (3) pages of
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`15
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`

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`Case 1:20-cv-00371-LPS Document 83 Filed 06/21/21 Page 16 of 17 PageID #: 2902
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`argument and may be opposed by a maximum of three (3) pages of argument, and the
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`side making the in limine request may add a maximum of one (1) additional page in reply
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`in support of its request. If more than one party is supporting or opposing an in limine
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`request, such support or opposition shall be combined in a single three (3) page
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`submission (and, if the moving party, a single one (1 ) page reply), unless otherwise
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`ordered by the Court. No separate briefing shall be submitted on in limine requests,
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`unless otherwise 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
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`to be tried to a jury, pursuant to Local Rules 4 7 and 51 the parties should file (i) proposed
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`voir dire, (ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special
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`verdict forms three (3) business days before the final pretrial conference. This submission
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`shall be accompanied by a courtesy copy containing electronic files of these documents,
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`in WordPerfect or Microsoft Word format, which may be submitted by e-mail to Judge
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`Stark's staff.
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`22.
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`Trial. This matter is scheduled for a 5-day jury trial beginning at 9:30 a.m.
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`on June Q , 2023, with the subsequent trial days beginning at 9:00 a.m. Until the case is
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`submitted to the jury for deliberations, the jury will be excused each day at 4:30 p.m. The
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`trial will be timed, as counsel will be allocated a total number of hours in which to
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`present their respective cases.
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`23 .
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`Judgment on Verdict and Post-Trial Status Report. Within seven (7) days
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`after a jury returns a verdict in any portion of a jury trial, the parties shall jointly submit a
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`form of order to enter judgment on the verdict. At the same time, the parties shall submit
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`a joint status report, indicating among other things how the case should proceed and
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`16
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`Case 1:20-cv-00371-LPS Document 83 Filed 06/21/21 Page 17 of 17 PageID #: 2903
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`listing any post-trial motions 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
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`limited to a maximum of 20 pages of opening briefs, 20 pages of answering briefs, and 10
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`pages of reply briefs relating to any post-trial motions filed by that side, no matter how
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`many such motions are filed.
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`17
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