Case 1:21-cv-01823-GBW Document 23 Filed 05/02/22 Page 1 of 14 PageID #: 820
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`TIMES FIBER COMMUNICATIONS, INC.,
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`Plaintiff,
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`v.
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`PPC BROADBAND, INC.,
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`Defendant.
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`C.A. No. 21-1823 (VAC) (MPT)
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`[PROPOSED] SCHEDULING ORDER
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`This _____day of May 2022, the Court having conducted an initial Rule 16 scheduling and
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`planning conference pursuant to Local Rule 16.1 on May 9, 2022, and the parties having
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`determined after discussion that the matter cannot be resolved at this juncture by settlement,
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`voluntary mediation, or binding arbitration;
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`IT IS ORDERED that:
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`1.
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`Applications by Motion. Except as otherwise specified herein, any application to
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`the Court shall be by written motion. Any non-dispositive motion shall contain the statement
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`required by Local Rule 7.1.1.
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`2.
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`Rule 26(a)(1) Initial Disclosures and E-Discovery Default Standard. Unless
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`otherwise agreed to by the parties, the parties shall make their initial disclosures pursuant to
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`Federal Rule of Civil Procedure 26(a)(1) within fourteen (14) days of the date of this Order. If
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`they have not already done so, the parties are to review the Court’s Default Standard for Discovery,
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`including Discovery of Electronically Stored Information (“ESI”), which is posted at
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`https://www.ded.uscourts.gov/default-standard-discovery and is incorporated herein by reference.
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`The parties shall make their disclosures pursuant to Paragraph 3 of the Court’s Default Standard
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`for Discovery within thirty (30) days of the date of this Order.
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`Case 1:21-cv-01823-GBW Document 23 Filed 05/02/22 Page 2 of 14 PageID #: 821
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`3.
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`Joinder of Other Parties and Amendment of Pleadings. All motions to join other
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`parties, and to amend or supplement the pleadings shall be filed on or before March 30, 2023.
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`4.
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`Application to Court for Protective Order. Should counsel find it will be necessary
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`to apply to the Court for a protective order specifying terms and conditions for the disclosure of
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`confidential information, counsel should confer and attempt to reach an agreement on a proposed
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`form of order and submit it to the Court within thirty (30) days from the date of this Order. Should
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`counsel be unable to reach an agreement on a proposed form of protective order, counsel must
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`follow the provisions of ¶ 7(g) below.
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`Any proposed protective order should 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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`5.
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`Courtesy Copies. This matter has been assigned to a vacant judgeship, designated
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`“VAC” on the docket. The parties have not consented to the jurisdiction of a magistrate judge.
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`Pursuant to ¶ 5 of Standing Order 2022-VAC-1 (dated March 9, 2022) or ¶ 3 of Standing Order
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`2022-3 (dated March 16, 2022), this matter is referred to this Judge for limited purposes. For the
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`pleadings and all matters within the scope of the referral to this Judge, the parties shall provide the
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`Court two (2) courtesy copies of all briefs and any other document filed in support of any briefs
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`(i.e., appendices, exhibits, declarations, affidavits, etc.). This provision also applies to papers filed
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`under seal. All courtesy copies shall be single-sided.
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`2
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`6.
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`Papers Filed Under Seal. In accordance with section G of the Court’s Revised
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`Administrative Procedures Governing Filing and Service by Electronic Means, available at
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`https://www.ded.uscourts.gov/manualsprocedures, a redacted version of any sealed document
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`shall be filed electronically within seven (7) days after the filing of the original sealed document.
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`Courtesy paper copies of sealed documents (see ¶ 5, above) shall be filed with the Clerk’s Office,
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`however, courtesy copies of redacted versions of sealed documents shall not be filed, unless
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`otherwise ordered.
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`7.
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`Discovery
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`(a)
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`Discovery Cut Off. All discovery in this case shall be initiated so that it will
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`be completed on or before August 9, 2023. Unless otherwise ordered by the Court, the limitations
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`on discovery set forth in Local Rule 26.1 shall be strictly observed.
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`(b)
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`Document Production. Document production shall be substantially
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`complete by March 9, 2023.
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`(c)
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`Requests for Admission. A maximum number of [Plaintiff: 100]
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`[Defendant: 40] requests for admission are permitted for each side. This limitation does not
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`include requests for admission directed to the authentication of documents, on which there is no
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`limit.
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`(d)
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`Interrogatories.
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`i.
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`A maximum of 25
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`interrogatories,
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`including contention
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`interrogatories, are permitted for each side.
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`ii.
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`The Court encourages the parties to serve and respond to contention
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`interrogatories early in the case. In the absence of agreement among the parties, contention
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`interrogatories, if filed, shall first be addressed by the party with the burden of proof.
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`3
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`(e)
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`Depositions. Each side is limited to a total of 70 hours of taking testimony
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`by deposition upon oral examination, including Rule 30(b)(1) and Rule 30(b)(6) fact depositions.
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`Any Rule 30(b)(6) deposition shall count as a single deposition and shall be limited to ten (10)
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`hours, regardless of the number of individuals designated to testify on behalf of the entity being
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`deposed. These provisions may be amended by agreement of the parties or upon order of the Court
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`upon good cause shown.
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`(f)
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`Disclosure of Expert Testimony.
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`i.
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`Expert Reports. For the party that has the burden of proof on the
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`subject matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on or before
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`August 23, 2023. The supplemental disclosure to contradict or rebut evidence on the same subject
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`matter identified by another party is due on or before September 27, 2023. Reply expert reports
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`from the party with the initial burden of proof are due on or before November 1, 2023. Along with
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`the submissions of the expert reports, the parties shall advise of the dates and times of their experts’
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`availability for deposition. Expert discovery shall be completed by December 6, 2023.
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`ii.
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`Objections to Expert Testimony. To the extent any objection to
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`expert testimony is made pursuant to the principles announced in Daubert v. Merrell Dow Pharm.,
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`Inc., 509 U.S. 579 (1993), as incorporated in Federal Rule of Evidence 702, it shall be made by
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`motion no later than the deadline for dispositive motions set forth herein, unless otherwise ordered
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`by the Court.
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`(g)
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`Discovery Matters and Disputes Relating to Protective Orders.
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`Should counsel find they are unable to resolve a discovery matter or a dispute relating to a
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`protective order, after holding a verbal meet-and-confer and making a reasonable effort to reach
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`4
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`Case 1:21-cv-01823-GBW Document 23 Filed 05/02/22 Page 5 of 14 PageID #: 824
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`agreement with the opposing party on the matters or dispute,1 the party seeking relief from the
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`Court shall file a Motion for Discovery requesting a teleconference to resolve the discovery or
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`protective order dispute. The Motion shall include the following information:
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` A list of no more than three (3) discovery or protective order matters for resolution;
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` The date(s) of the verbal meet-and-confer between the parties;
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` The format of the meet-and-confer (e.g., in person or by telephone);
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` The identity of counsel (including at least one Delaware Counsel and at least one
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`Lead Counsel per party) who participated in the meet-and-confer; and
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` At least three dates on which the parties are jointly available for a teleconference
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`The Court will thereafter order a discovery teleconference, and the following procedures
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`shall apply:
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`i.
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`ii.
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`iii.
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`Not less than seventy-two (72) hours prior to the conference,
`excluding weekends and Court holidays, the party seeking relief
`shall file a letter with the Court, not to exceed four (4) pages, double-
`spaced in no less than 12-point font, outlining the issues in dispute
`and its position on those issues, including proposed solutions.
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`Not less than forty-eight (48) hours prior to the conference,
`excluding weekends and Court holidays, any party opposing the
`application for relief may file a letter, not to exceed four (4) pages,
`double-spaced in no less than 12-point font, outlining that party’s
`reason for its opposition and any proposed solutions.
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`Counsel shall provide a list of the teleconference participants, by
`including the list on a separate page with the letters. This list will
`not count as part of the page limitation for the letter submission.
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`iv.
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`limited
`should be
`there
`Attachments/Exhibits. Generally,
`attachments or exhibits to the letters. In a protective order dispute,
`only the provisions at issue should be attached. For disputes relating
`to responses to certain discovery requests, only the requests and
`responses in dispute as they exist at the time of the letter submissions
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`1
`See D. Del. L.R. 7.1.1 (describing the averment of counsel to be filed with nondispositive
`motions).
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`should be attached. Documentation of the parties’ attempts to
`resolve and/or narrow the issues as contained in letters or emails
`shall not be included. However, cases/transcripts cited and relied
`upon in the letter submission may be attached as exhibits.
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`To the extent factual issues are disputed or central to the Court’s
`analysis,2 non-conclusory, sworn declarations, only to the extent
`necessary to establish the facts, shall be attached as exhibit(s).
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`Protective Order disputes. For disputes related to the protective
`order, the submissions shall include the party’s proposal of the
`content for the disputed portion(s) only of the protective order.
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`v.
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`vi.
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`Should the Court find further briefing necessary upon conclusion of the telephonic
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`conference, the Court will order it. Alternatively, the Court may choose to resolve the dispute prior
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`to the conference and cancel the conference.
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`8.
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`Court Reporter. The parties shall arrange for a court reporter for all hearings and
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`proceedings including, but not limited to, scheduling conferences, status conferences, discovery
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`and protective order disputes, hearings, pretrial conference, and trial.
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`9.
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`Disclosures. Absent agreement among the parties, and approval of the Court:
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`(a)
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`By June 8, 2022, Plaintiff shall identify the accused product(s), including
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`accused methods and systems, and its damages model, as well as the asserted patent(s) that the
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`accused product(s) allegedly infringe(s). Plaintiff shall also produce the file history for each
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`asserted patent.
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`(b)
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`By July 27, 2022, Defendant shall produce core technical documents
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`related to the accused product(s), sufficient to show how the accused product(s) work(s), including
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`2
`For example, matters addressing attorney-client privilege, work product doctrine, common
`interest doctrine, sufficiency of privilege log and other similar issues often involve factual
`evidence for which affidavits may be required. See RCA v. Data General, C.A. No. 84-270-JJF,
`1986 WL 15693 (D. Del. July 2, 1986); Willemijn Houdstermaatschaapij v. Apollo Computers,
`Inc., 707 F. Supp. 1429 (D. Del. 1989).
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`6
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`but not limited to non-publicly available operation manuals, product literature, schematics, and
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`specifications. Defendant shall also produce sales figures for the accused product(s).
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`(c)
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`By August 24, 2022, Plaintiff shall produce an initial claim chart relating
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`each known accused product to the asserted claims each such product allegedly infringes.
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`(d)
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`By October 5, 2022, Defendant shall produce its initial invalidity
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`contentions for each asserted claim, as well as the known related invalidating references.
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`(e)
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`(f)
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`By June 28, 2023, Plaintiff shall provide final infringement contentions.
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`By July 26, 2023, Defendant shall provide final invalidity contentions.
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`10.
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`Interim Status Report. On August 2, 2023, counsel shall submit a joint interim
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`report to the Court on the nature of the matters in issue and the progress of discovery to date.
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`11.
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`Status Conference. On August 23, 2023, the Court will hold a telephonic Rule 16
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`status conference with counsel beginning at _____ a.m. Plaintiff’s counsel shall coordinate the
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`call to chambers. At the time of this conference, counsel shall also be prepared to discuss the
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`progress, if any, of settlement discussions and shall be prepared to discuss the possibility of setting
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`up a settlement conference with the Court, counsel and their clients. If all parties agree that there
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`is nothing to report, nor anything to add to the interim status report or to this Order, they shall
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`notify the Court in writing before the conference is scheduled to occur, and the conference will be
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`removed from the Court’s calendar.
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`12.
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`Technology Tutorials. Although technology tutorials are not required by the Court,
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`they are appreciated and, if any party chooses to file such a tutorial, it shall be submitted on or
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`before the date that the Joint Claim Construction Brief is filed.
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`13.
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`Claim Construction Issue Identification. On November 9, 2022, the parties shall
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`exchange a list of those claim term(s)/phrase(s) that they believe need construction and their
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`proposed claim construction of those term(s)/phrase(s). This document will not be filed with the
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`Court. Subsequent to exchanging that list, the parties will meet and confer to prepare a Joint Claim
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`Construction Chart to be filed with the Court on December 7, 2022. The parties Joint Claim
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`Construction Chart should identify for the Court the term(s)/phrase(s) of the claim(s) in issue, and
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`should include each party’s proposed construction of the disputed claim language with citation(s)
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`only to the intrinsic evidence in support of their respective proposed constructions. A copy of the
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`patent(s) in issue as well as those portions of the intrinsic record relied upon shall be submitted
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`with this Joint Claim Construction Chart. In this joint submission, the parties shall not provide
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`argument.
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`14.
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`Claim Construction. Plaintiff shall serve, but not file, its opening brief, not to
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`exceed 20 pages on January 12, 2023. Defendant shall serve, but not file, its answering brief, not
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`to exceed 30 pages on February 9, 2023. Plaintiff shall serve, but not file, its reply brief, not to
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`exceed 20 pages, on March 9, 2023. Defendant shall serve, but not file, its sur-reply brief, not to
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`exceed 10 pages, on March 30, 2023.
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`No later than April 10, 2023, the parties shall file a Joint Claim Construction Brief, by
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`copying and pasting their unfiled briefs into one brief, with their positions on each claim term in
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`sequential order, in substantially the form below:
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`Joint Claim Construction Brief
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`I.
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`II.
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`Agreed-upon Constructions
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`Disputed Constructions
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`A.
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`[Term 1]
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`1.
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`2.
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`3.
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`Plaintiff’s Opening Position
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`Defendant’s Answering Position
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`Plaintiff’s Reply Position
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`4.
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`Defendant’s Sur-Reply Position
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`B.
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`[Term 2]
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`1.
`
`2.
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`3.
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`4.
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`Plaintiff’s Opening Position
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`Defendant’s Answering Position
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`Plaintiff’s Reply Position
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`Defendant’s Sur-Reply Position
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`The above format shall be followed for each claim term in dispute.
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`The parties need not include any general summaries of the law relating to claim
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`construction. If there are any materials that would be submitted in an appendix, the parties shall
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`submit them in a Joint Appendix.
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`15.
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`Hearing on Claim Construction. Beginning at _____ a.m. on ______, the Court will
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`hear evidence and argument on claim construction. The parties need not include any general
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`summaries of the law relating to claim construction in their presentations to the Court. The parties
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`shall notify the Court, by joint letter submission, no later than the date on which their joint claim
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`construction brief is filed (i) whether they request leave to present testimony at the hearing; and
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`(ii) the amount of time they are requesting be allocated to them for the hearing.
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`Provided that the parties comply with all portions of this Scheduling Order, and any other
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`orders of the Court, the parties should anticipate that the Court will issue its claim construction
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`order within sixty days of the conclusion of the claim construction hearing. If the Court is unable
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`to meet this goal, it will advise the parties no later than sixty days after the conclusion of the claim
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`construction hearing.
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`16. Supplementation. Absent agreement among the parties, and approval of the Court,
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`no later than June 21, 2023, the parties must finally supplement, inter alia, the identification of
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`all accused products and of all invalidity references.
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`17.
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`Case Dispositive Motions.
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`
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`(a)
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`All case dispositive and Daubert motions, an opening brief, and affidavits,
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`if any, in support of the motion shall be served and filed on or before January 10, 2024. Briefing
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`will be presented pursuant to the Court’s Local Rules,3 except as may be modified during the
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`scheduling conference. No case dispositive or Daubert motion may be filed at a time before the
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`date set forth in this paragraph without leave of the Court.
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`(b)
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`Detailed Citation Required. Any reference to exhibits in the briefs must
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`refer to the specific pages of the exhibit proffered in support of a party’s argument. If the exhibit
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`is a deposition, both the page and line numbers must be specified.4
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`(c)
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`Page limits. Unless otherwise ordered by the Court, all sides are limited to
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`a maximum of thirty (30) pages of opening briefs, thirty (30) pages of answering briefs, and
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`fifteen (15) pages of reply briefs relating to any case dispositive and Daubert motions filed by a
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`side, no matter how many such motions are filed.
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`18.
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`Proposed Pretrial Order. The parties shall file with the Court a joint proposed final
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`pretrial order that includes a table of contents and the matter described in Local Rule 16.3(c) on or
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`before ___________. Unless otherwise ordered by the Court, the parties shall comply with the
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`timeframes set forth in Local Rule 16.3(d)(1)-(3) for the preparation of the joint proposed final
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`3
`See D. Del. L.R. 7.1.3 (“Form and Contents of Briefs, Memoranda of Points and
`Authorities, and Appendices”).
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`4
`For example, a reference to an exhibit that refers to the entire document will not be
`considered.
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`pretrial order. The filing of the joint proposed pretrial order shall satisfy the pretrial disclosure
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`requirement of Rule 26(a)(3).
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`19. Motions in Limine. Motions in limine shall not be filed separately. All in limine
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`requests and responses thereto shall be set forth in the proposed pretrial order. Each party shall be
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`limited to three (3) in limine requests, unless otherwise permitted by the Court. The in limine
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`request and any response shall contain the authorities relied upon; each in limine request may be
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`supported by a maximum of three (3) pages of argument, may be opposed by a maximum of
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`three (3) pages of argument, and the side making the in limine request may add a maximum of
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`one (1) additional page in reply in support of its request. If more than one party is supporting or
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`opposing an in limine request, such support or opposition shall be combined in a single three (3)
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`page submission (and, if the moving party, a single one (1) page reply), unless otherwise ordered
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`by the Court. No separate briefing shall be submitted on in limine requests, unless otherwise
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`permitted by the Court.
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`20.
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`Jury Instructions, Voir Dire, and Special Verdict Forms. Where a case is to be tried
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`to a jury, pursuant to Local Rules 47.1 and 51.1 the parties should file joint proposed (i) voir dire,
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`(ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict forms at least
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`three (3) days, excluding weekends and Court holidays, before the pretrial conference. This
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`submission shall be accompanied by a courtesy copy containing electronic files of these documents
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`in Microsoft Word format, which may be submitted by email to the trial judge’s staff.
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`21.
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`Pretrial Conference. On _________, the Court will hold a pretrial conference in
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`Courtroom 2B with counsel beginning at _______.
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`22.
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`Trial. This matter is scheduled for a 5-7 day jury trial beginning at 9:30 a.m. on
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`_________ with the remaining trial days beginning at 9:00 a.m. Until the case is submitted to the
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`jury for deliberations, the jury will be excused each day at 4:30 p.m. The trial will be timed, and
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`each side will be allocated a total number of hours in which to present their case.
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`23.
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`Judgment on Verdict and Post-Trial Status Report. Within seven days after a jury
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`returns a verdict in any portion of a jury trial, the parties shall jointly submit a form of order to
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`enter judgment on the verdict. At the same time, the parties shall submit a joint status report,
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`indicating among other things how the case should proceed and listing any post-trial motions each
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`party intends to file.
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`24.
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`Post-Trial Motions. Unless otherwise ordered by the Court, all sides are limited to
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`a maximum of twenty (20) pages of opening briefs, twenty (20) pages of answering briefs, and ten
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`(10) pages of reply briefs relating to any post-trial motions filed by one side, no matter how many
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`such motions are filed.
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`Chief U.S. Magistrate Judge Mary Pat Thynge
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`12
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`Chart of All Relevant Deadlines
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`
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`Event
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`Deadline
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`Initial Disclosures & review ESI Default
`Order
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`14 days after date of Scheduling Order
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`Default Standard Paragraph 3 Disclosures
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`30 days after date of Scheduling Order
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`Application for Protective Order
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`30 days after date of Scheduling Order
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`Plaintiff’s Identification of Accused Products
`& Damages Model
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`Wednesday, June 8, 2022
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`Defendant’s Core Technical Document
`Production
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`Wednesday, July 27, 2022
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`Plaintiff’s Initial Claim Chart
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`Wednesday, August 24, 2022
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`Defendant’s Invalidity Contentions
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`Wednesday, October 5, 2022
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`Claim Construction Term Exchange
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`Wednesday, November 9, 2022
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`Joint Claim Construction Chart (at least 2
`weeks prior to opening Claim Construction
`brief)
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`Wednesday, December 7, 2022
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`Plaintiff’s Opening Claim Construction Brief Thursday, January 12, 2023
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`Defendant’s Answering Claim Construction
`Brief
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`Thursday, February 9, 2023
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`Plaintiff’s Reply Claim Construction Brief
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`Thursday, March 9, 2023
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`Substantial Completion of Document
`Production
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`Thursday, March 9, 2023
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`Joinder of Parties and Amended Pleadings
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`Thursday, March 30, 2023
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`Defendant’s Sur-Reply Claim Construction
`Brief
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`Thursday, March 30, 2023
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`Joint Claim Construction Brief & any
`Technology Tutorials
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`Monday, April 10, 2023
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`Markman Hearing
`
`TBD
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`Event
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`Supplemental Identification of Accused
`Products/Invalidity References
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`Deadline
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`Wednesday, June 21, 2023
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`Plaintiff’s Final Infringement Contentions
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`Wednesday, June 28, 2023
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`Defendant’s Final Invalidity Contentions
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`Wednesday, July 26, 2023
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`Interim Status Report
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`Fact Discovery Close
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`Status Conference (after interim status
`report)
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`Opening Expert Reports
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`Rebuttal Expert Reports
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`Reply Expert Reports
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`Expert Discovery Close
`
`Wednesday, August 2, 2023
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`Wednesday, August 9, 2023
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`Wednesday, August 23, 2023
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`Wednesday, August 23, 2023
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`Wednesday, September 27, 2023
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`Wednesday, November 1, 2023
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`Wednesday, December 6, 2023
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`Dispositive Motions & Opening Briefs
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`Wednesday, January 10, 2024
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`Dispositive Answering Briefs
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`Wednesday, January 24, 2024
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`Dispositive Reply Briefs
`
`Wednesday, January 31, 2024
`
`Dispositive/Daubert Motions Hearing
`
`Final Pre-Trial Order (at least 7 days prior to
`pretrial conference)
`
`Jury Instructions, Voir Dire, Special Verdict
`Forms (at least 3 days before pretrial
`conference)
`
`Pre-Trial Conference
`
`Trial
`
`
`
`
`
`TBD
`
`TBD
`
`TBD
`
`TBD
`
`TBD
`
`2
`
`