Case 1:22-cv-00305-RGA-JLH Document 47 Filed 02/21/23 Page 1 of 17 PageID #: 803
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`
` ROBOCAST, INC.,
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`Civil Action No. 1:22-cv-00304-RGA
`
`Plaintiff,
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`JURY TRIAL DEMANDED
`
`v.
`
`YOUTUBE, LLC and GOOGLE, LLC,
`
`
`
` ROBOCAST, INC.,
`
`v.
`
`NETFLIX, INC.,
`
`Defendants.
`
`Plaintiff and
`Counterclaim
`Defendant,
`
`Defendant and
`Counterclaim
`Plaintiff.
`
`Civil Action No. 1:22-cv-00305-RGA
`
`JURY TRIAL DEMANDED
`
`JOINT SCHEDULING ORDER
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`21st
`February
`This _____ day of ___________, 2023, the Court having conducted an initial Rule 16(b)
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`scheduling pursuant to Local Rule 16.1(b), the parties having determined after discussion that these
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`matters 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:
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`1.
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`Rule 26(a)(1) Initial Disclosures. Unless otherwise agreed to by the parties, the parties
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`shall make their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1)
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`within five (5) days of the date of this Order.
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`1
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`Case 1:22-cv-00305-RGA-JLH Document 47 Filed 02/21/23 Page 2 of 17 PageID #: 804
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`2.
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`Joinder of Other Parties and Amendment of Pleadings. All motions to join other
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`parties, and to amend or supplement the pleadings, shall be filed on or before
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`December 7, 2023.
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`3.
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`Discovery
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`a.
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`b.
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`Fact Discovery Cut Off. All fact discovery in these cases shall be initiated so that
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`it will be completed on or before April 11, 2024.
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`Document Production. Document production shall be substantially complete by
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`November 17, 2023.
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`c.
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`Requests for Admission. A maximum of fifty (50) requests for admission are
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`permitted for each side in each case.
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`d.
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`Interrogatories. A maximum of twenty-five (25) interrogatories, including
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`contention interrogatories, are permitted for each side in each case.
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`e.
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`Depositions.
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`i.
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`Limitations on Hours for Deposition Discovery.
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`Each side for each case is limited to a total of seventy (70) hours of taking
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`testimony by deposition upon oral examination of the other party
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`(excluding any depositions of third parties and expert witnesses), with
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`each deposition counting for a minimum of two (2) hours towards this
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`limitation regardless of its shorter length. Each side in each case shall be
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`limited to forty (40) hours of deposition of third parties. Defendants shall
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`coordinate with each other to ensure depositions of Plaintiff and third
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`parties are conducted in an efficient manner such that, for example,
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`
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`depositions of the same witness are scheduled on the same day or on
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`consecutive days or on mutually agreeable days to the parties and the
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`witness. To the extent a party reasonably believes that additional
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`deposition time is necessary, the parties shall meet and confer in good
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`faith in an attempt to achieve resolution. If the parties are unable to
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`achieve resolution, a party may seek relief from the Court, and the
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`remaining parties will not oppose a reasonable request for an expedited
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`briefing schedule on this issue.
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`ii.
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`Location of Depositions. Any party or representative (officer, director, or
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`managing agent) of a party filing a civil action in this district court must
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`ordinarily be required, upon request, to submit to a deposition at a place
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`designated within this district. Exceptions to this general rule may be
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`made by order of the Court or by agreement of the parties. A defendant
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`who becomes a cross-claimant or third-party plaintiff shall be considered
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`as having filed an action in this Court for purposes of this provision.
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`f.
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`Discovery Matters and Disputes Relating to Protective Orders. Should counsel
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`find they are unable to resolve a discovery matter or a dispute relating to a
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`protective order, the parties involved in the discovery matter or protective order
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`dispute shall contact the Court's Case Manager to schedule an in-person
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`conference/argument. Unless otherwise ordered, by no later than seven (7)
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`business days prior to the conference/argument, any party seeking relief shall file
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`with the Court a letter, not to exceed three (3) pages, outlining the issues in
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`3
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`Case 1:22-cv-00305-RGA-JLH Document 47 Filed 02/21/23 Page 4 of 17 PageID #: 806
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`
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`dispute and its position on those issues. By no later than five (5) business days
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`prior to the conference/argument, any party opposing the application for relief
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`may file a letter, not to exceed three (3) pages, outlining that party's opposition.
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`A party should include with its letter a proposed order with a detailed issue-by-
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`issue ruling such that, should the Court agree with the party on a particular issue,
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`the Court could sign the proposed order as to that issue, and the opposing party
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`would be able to understand what it needs to do, and by when, to comply with
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`the Court's order. Any proposed order shall be e-mailed, in Word format,
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`simultaneously with filing to rga_civil@ded.uscourts.gov. If a discovery-related
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`motion is filed without leave of the Court, it will be denied without prejudice to
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`the moving party’s right to bring the dispute to the Court through the discovery
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`matters procedures set forth in this Order.
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`g.
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`Miscellaneous Discovery Matters.
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`i.
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`The parties will make initial patent disclosures as set forth below:
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`(a)
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`Identification of Accused Products and Asserted Patents:
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`By March 3, 2023, for Defendant(s) in each case, Plaintiff
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`shall specifically
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`identify
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`the accused product(s),
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`including the accused methods and systems, and produce
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`the file history for each asserted patent.
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`(b)
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`Production of Core Technical Documents: By April 11,
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`2023, Defendant(s) in each case shall produce to Plaintiff
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`the core technical documents related to the accused
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`4
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`Case 1:22-cv-00305-RGA-JLH Document 47 Filed 02/21/23 Page 5 of 17 PageID #: 807
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`product(s), including but not limited to operation manuals,
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`product literature, schematics, and specifications.
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`(c)
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`Initial Infringement Contentions: By May 25, 2023,
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`Plaintiff shall produce to Defendant(s) in each case its
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`initial infringement contentions for each asserted claim
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`(limited to a maximum of forty (40) asserted claims per
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`Defendant) relating each accused product to the asserted
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`claims each product allegedly infringes.
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`(d)
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`Initial
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`Invalidity Contentions: By July 6, 2023,
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`Defendant(s) in each case shall produce to Plaintiff its
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`initial invalidity contentions for each asserted claim, as
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`well as related invalidating references (e.g., publications,
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`manuals, and patents). Defendant(s) in each case shall
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`identify no more than seventy-five (75) prior art
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`references.
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`ii.
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`Other Litigation and Proceedings
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`(1)
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`Robocast previously initiated litigation in this District against
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`Apple and Microsoft asserting U.S. Patent No. 7,155,451 (“the
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`’451 patent”): Robocast Inc. v. Microsoft Corp., No. 10-1055-
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`RGA (D. Del.) (completed); Robocast Inc. v. Apple Inc., No. 11-
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`235-RGA (D. Del.) (completed).
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`5
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`Case 1:22-cv-00305-RGA-JLH Document 47 Filed 02/21/23 Page 6 of 17 PageID #: 808
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`(2)
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`Third-party Unified Patents, LLC filed for IPR of U.S. Patent No.
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`8,965,932 in Unified Patents, LLC v. Robocast, Inc., IPR2022-
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`01125. On January 20, 2023, the PTAB denied institution.
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`Netflix filed for IPR of the ’451 patent and U.S. Patent No.
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`8,606,819 in Netflix, Inc. v. Robocast, Inc., IPR2023-00081
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`(pending) and Netflix, Inc. v. Robocast, Inc., IPR2023-00182
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`(pending). The institution decisions on Netflix’s petitions are
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`expected by June 2023.
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`(3)
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`At present, Plaintiff has not yet decided whether it will institute
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`any further litigation within the next year.
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`(4)
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`YouTube/Google currently expects to file one or more IPRs and
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`is considering it for each patent-in-suit. To the extent that
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`YouTube/Google files, it will do so before the deadline permitted
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`by 35 U.S.C. § 315(b), which here is March 8, 2023. It will
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`promptly notify the Court upon filing.At this time, Netflix does
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`not expect to file any additional IPRs against any of the patents-
`
`in-suit, though it reserves all rights to challenge any claims of any
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`patent-in-suit at the Patent Office consistent with all applicable
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`laws.
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`iii.
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`Final Infringement Contentions. No later than forty-five (45) days before
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`the close of fact discovery, Plaintiff shall serve its final infringement
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`contentions to Defendant(s) in each case. Plaintiff shall narrow its
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`6
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`Case 1:22-cv-00305-RGA-JLH Document 47 Filed 02/21/23 Page 7 of 17 PageID #: 809
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`
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`asserted claims to no more than twenty (20) total claims for Defendant(s)
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`in each case.
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`iv.
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`Final Invalidity Contentions. No later than thirty (30) days before the
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`close of fact discovery, Defendant(s) in each case shall serve its final
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`invalidity contentions. Defendant(s) in each case shall narrow the
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`number of prior-art-based invalidity arguments to no more than four (4)
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`arguments per asserted claim. A “prior-art-based invalidity argument” as
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`used herein is an argument that: (1) a single reference anticipates a claim;
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`or (2) a single reference renders a claim obvious; or (3) a specified
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`combination of references renders a claim obvious.
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`v.
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`Reducing Asserted Claims and Prior Art. By August 19, 2024 (i.e., after
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`the close of expert discovery), Plaintiff shall further narrow the number
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`of asserted claims to no more than ten (10) for Defendant(s) in each case.
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`By August 26, 2024, Defendant(s) in each case shall narrow the number
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`of prior-art-based invalidity arguments to no more than two (2) arguments
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`per asserted claim.
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`vi.
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`Plaintiff represents that it will either (1) provide any license(s) and
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`settlement agreement(s) relating to any patent-in-suit no later than the
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`time of the initial Rule 16(b) scheduling conference, or (2) if Plaintiff
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`requires a Court Order to make such disclosures, file any necessary
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`proposed orders no later than twenty-four hours before the initial Rule
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`7
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`
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`16(b) scheduling conference. All parties shall be prepared to discuss at
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`the conference what their preliminary views of damages are.
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`vii.
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`If they have not already done so, the parties are to review the Court’s
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`Default Standard for Discovery, Including Discovery of Electronically
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`Stored
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`Information
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`(“ESI”),
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`which
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`is
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`posted
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`at
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`https://www.ded.uscourts.gov/default-standard-discovery.
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` Counsel
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`should confer and attempt to reach an agreement on a proposed form of
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`ESI order and submit it to the Court within thirty (30) days from the date
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`of this Order.
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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
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`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 3(f) above.
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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 as "confidential" pursuant to this order
`shall promptly notify that party of the motion so that
`the party may have an opportunity to appear and be
`heard on whether that information should be
`disclosed.
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`8
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`5.
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`Papers Filed Under Seal. When filing papers under seal, a redacted version of any sealed
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`document shall be filed electronically within seven (7) days of the filing of the sealed
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`document.
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`6.
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`Claim Construction Issue Identification.
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`On or before July 27, 2023 the parties in each case shall exchange a list of those claim
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`term(s)/phrase(s) that they believe need construction and their proposed claim
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`construction of those term(s)/phrase(s).1 This document will not be filed with the Court.
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`Subsequent to exchanging that list, the parties will meet and confer to prepare a Joint
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`Claim Construction Chart to be filed on August 16, 2023. The Joint Claim Construction
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`Chart,
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`in Word
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`format shall be e-mailed simultaneously with
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`filing
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`to
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`rga_civil@ded.uscourts.gov. The parties' Joint Claim Construction Chart should
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`identify for the Court the term(s)/phrase(s) of the claim(s) in issue, and should include
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`each party's proposed construction of the disputed claim language with citation(s) only
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`to the intrinsic evidence in support of their respective proposed constructions. The Joint
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`Claim Construction Chart should include an explanation of why resolution of the dispute
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`makes a difference. A copy of the patent(s) in issue as well as those portions of the
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`intrinsic record relied upon shall be submitted with the Joint Claim Construction Chart.
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`In this joint submission, the parties shall not provide argument. To the extent any party
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`believes the claim construction briefing limits and allocations between Defendants need
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`to be adjusted based on the parties’ positions, the parties shall contact the Court promptly
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`1 If a party proposes a construction of a term to be its “plain and ordinary” meaning, the party must
`explain what that meaning is. If a term is arguably a means-plus-function term, and a party does
`not propose a function and a structure, it is waiving any right to propose a function and a structure
`at a later time.
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`9
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`after submitting the Joint Claim Construction Chart concerning their positions with
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`respect to any adjustments, including any request that the Court reconsider separate claim
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`construction briefing for Defendants.
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`7.
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`Claim Construction Briefing.
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`Plaintiff shall serve, but not file, its opening brief, not to exceed 6,500 words, on
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`September 27, 2023. Defendants shall serve, but not file, their answering brief, not to
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`exceed 9,000 words on October 25, 2023. Plaintiff shall serve, but not file, its reply
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`brief, not to exceed 6,500 words, on November 17, 2023. Defendants shall serve, but
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`not file, their sur-reply brief, not to exceed 4,000 words, on December 12, 2023. No later
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`than December 20, 2023, the parties shall file a Joint Claim Construction Brief. The
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`parties shall copy and paste their unfiled briefs into one brief, with their position on each
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`claim term in sequential order, in substantially the form 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.
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`2.
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`3.
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`Plaintiff’s Opening Position
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`Defendants’ Answering Position
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`Plaintiff’s Reply Position
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`2 For each term in dispute, there should be a table or the like setting forth the term in dispute, the
`parties’ competing constructions, and why resolution of the dispute matters. The table does not
`count against the word limits.
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`10
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`4.
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`Defendants’ Sur-Reply Position
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`B. [TERM 2]
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`1.
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`2.
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`3.
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`4.
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`Plaintiff’s Opening Position
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`Defendants’ Answering Position
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`Plaintiff’s Reply Position
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`Defendants’ Sur-Reply Position
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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 materials that would be submitted in an appendix, the parties
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`shall submit them in a Joint Appendix.
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`8.
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`Hearing on Claim Construction. Beginning on January 17, 2024 at 9:00 a.m., the Court
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`will hear argument on claim construction. The Court will conduct a single claim
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`construction hearing for both cases. Absent prior approval of the Court (which, if it is
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`sought, must be done so by joint letter submission no later than the date on which
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`answering claim construction briefs are due), the parties shall not present testimony at
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`the argument, and the argument shall not exceed a total of three (3) hours. When the
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`Joint Claim Construction Brief is filed, the parties shall simultaneously file a motion
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`requesting the above-scheduled claim construction hearing, state that the briefing is
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`complete, and state how much total time the parties are requesting that the Court should
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`allow for the argument.
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`9.
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`Disclosure of Expert Testimony.
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`a.
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`Expert Reports. For the party who has the initial burden of proof on the subject
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`matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on
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`11
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`or before May 21, 2024. The supplemental disclosure to contradict or rebut
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`evidence on the same matter identified by another party is due on or before June
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`21, 2024. Reply expert reports from the party with the initial burden of proof
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`are due on or before July 18, 2024. No other expert reports will be permitted
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`without either the consent of all parties or leave of the Court. If any party believes
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`that an expert report does not comply with the rules relating to timely disclosure
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`or exceeds the scope of what is permitted in that expert report, the complaining
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`party must notify the offending party within one (1) week of the submission of
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`the expert report. The parties are expected to promptly try to resolve any such
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`disputes, and, when they cannot reasonably be resolved, use the Court’s
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`Discovery Dispute Procedure or the complaint will be waived.
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`
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`Along with the submission of the expert reports, the parties shall advise
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`of the dates and times of their experts’ availability for deposition. Depositions of
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`experts shall be completed on or before August 12, 2024.
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`b.
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`Objections to Expert Testimony. To the extent any objection to expert testimony
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`is made pursuant to the principles announced in Daubert v. Merrell Dow Pharm.,
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`Inc., 509 U.S. 579 (1993) (“Daubert”), as incorporated in Federal Rule of
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`Evidence 702, it shall be made by motion no later than the deadline for dispositive
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`motions set forth herein, unless otherwise ordered by the Court.
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`10.
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`Case Dispositive Motions. All case dispositive motions shall be served and filed on or
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`before September 6, 2024. No case dispositive motions under Rule 56 may be filed
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`more than ten (10) days before the above date without leave of the Court. Absent an
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`12
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`order of the Court upon a showing of good case, each side in each case is limited to one
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`forty (40) page opening brief, one forty (40) page answering brief, and one twenty (20)
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`page reply brief for all of its Daubert and case dispositive motions. Answering briefs for
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`case dispositive motions shall be served and filed on or before October 3, 2024. Reply
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`briefs for case dispositive motions shall be served and filed on or before October 31,
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`2024.
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`11.
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`Applications by Motion. Except as otherwise specified herein, any application to the
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`Court shall be by written motion. Any non-dispositive motion should contain the
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`statement required by Local Rule 7.1.1.
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`12.
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`Pretrial Conference. On January 31, 2025 (YouTube/Google) and February 21,
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`2025 (Netflix), the Court will hold a Rule 16(e) final pretrial conference in Court with
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`counsel beginning at 9:00 AM. The parties shall file a joint proposed final pretrial
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`order in compliance with Local Rule 16.3(c) no later than 5 P.M. on the fourth business
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`day before the date of the final pretrial conference (i.e., January 27, 2025
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`(YouTube/Google) and February 14, 2025 (Netflix)). Unless otherwise ordered by the
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`Court, the parties shall comply with the timeframes set forth in Local Rule 16.3(d) for
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`the preparation of the proposed joint final pretrial order.
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`13. Motions in Limine. Motions in limine shall be separately filed, with each motion
`
`containing all the argument described below in one filing for each motion on the same
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`day the parties file their Proposed Pretrial Order. To meet this deadline, motions in
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`limine shall be served, but not filed, twelve (12) business days before the parties file
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`their Proposed Pretrial Order (i.e., January 9, 2025 (YouTube/Google) and January
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`13
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`29, 2025 (Netflix)), responses shall be served, but not filed, seven (7) business days
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`before the parties file their Proposed Pretrial Order (i.e., January 16, 2025
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`(YouTube/Google) and February 5, 2025 (Netflix)), and replies shall be served, but
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`not filed, four (4) business days before the parties file their Proposed Pretrial Order
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`(i.e., January 21, 2025 (YouTube/Google) and February 10, 2025 (Netflix)). The
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`parties shall meet and confer after serving their motions in limine and before filing
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`their motions in limine in an attempt to narrow the disputes. Any supporting
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`documents in connection with a motion in limine shall be filed in one filing separate
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`from the motion in limine. Each side in each case shall be limited to three (3) in limine
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`requests, unless otherwise permitted by the Court. The in limine request and any
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`response shall contain the authorities relied upon; each in limine request may be
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`supported by a maximum of three (3) pages of argument and may be opposed by a
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`maximum of three (3) pages of argument, and the side making the in limine request
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`may add a maximum of one (1) additional page in reply in support of its request. If
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`more than one party is supporting or opposing an in limine request, such support or
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`opposition shall be combined in a single three (3) page submission (and, if the moving
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`party, a single one (1) page reply). No separate briefing shall be submitted on in limine
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`requests, unless otherwise permitted by the Court.
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`14.
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`Jury Instructions, Voir Dire, and Special Verdict Forms. Where a case is to be tried to a
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`jury, pursuant to Local Rules 47.1(a)(2) and 51.1, the parties should file (i) proposed voir
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`dire, (ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict
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`forms no later than 5 p.m. on the fourth business day before the date of the final pretrial
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`14
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`conference (i.e., January 27, 2025 (YouTube/Google) and February 14, 2025
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`(Netflix)). Areas of dispute shall be identified as narrowly as possible and in a manner
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`that makes it readily apparent what the dispute is. The parties shall submit
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`simultaneously with filing each of the foregoing four (4) documents in Word format to
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`rga_civil@ded.uscourts.gov.
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`15.
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`Trials. Each matter is scheduled for a five (5) day jury trial beginning at 9:30 a.m. on
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`February 10, 2025 (YouTube/Google) and March 3, 2025 (Netflix). Until each case
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`is submitted to the jury for deliberations, the jury will be excused each day at 5:00 p.m.
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`The trials will be timed, as counsel will be allocated a total number of hours in which
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`to present their respective cases.
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`16.
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`Mediation. The Parties are required to engage in good faith in an in-person mediation.
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`They are to hire a jointly agreed-upon mediator. The timing of mediation efforts is left
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`to the discretion of the Parties, but the mediation efforts need to be conducted in advance
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`of the pretrial conference. The Parties are required to submit a joint statement no later
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`than one week before the pretrial conference. The joint statement is to include the
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`identification of the mediator, the lead counsel for each party at the mediation, the length
`
`of the mediation, and the certification of the lead mediation counsel that they have
`
`engaged in the efforts in good faith. If the Parties anticipate any further efforts by the
`
`mediator at the time of the submission, they should so advise. The joint statement should
`
`not disclose the substance of any offers, counter-offers, or other negotiations.
`
`/s/ Richard G. Andrews
`UNITED STATES DISTRICT JUDGE
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`15
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`Case 1:22-cv-00305-RGA-JLH Document 47 Filed 02/21/23 Page 16 of 17 PageID #: 818
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`Dated: February 21, 2023
`
`/s/ Ronald P. Golden III
`Stephen B. Brauerman
`Ronald P. Golden, III
`Bayard, P.A.
`600 N. King Street, Suite 400
`Wilmington, DE 19801
`(302) 655-5000
`Fax: (302) 658-6395
`sbrauerman@bayardlaw.com
`rgolden@bayardlaw.com
`
`Cantor Colburn LLP
`Marc N. Henschke (pro hac vice)
`Steven M. Coyle (pro hac vice)
`Andrew C. Ryan (pro hac vice)
`Nicholas A. Geiger (pro hac vice)
`Sara T. Colburn (pro hac vice)
`20 Church Street, 22nd Floor
`Hartford, CT 06103
`Tel. (860) 286-2929
`Fax. (860) 286-0115
`mhenschke@cantorcolburn.com
`scoyle@cantorcolburn.com
`aryan@cantorcolburn.com
`ngeiger@cantorcolburn.com
`scolburn@cantorcolburn.com
`
`McKool Smith, P.C.
`Steven Rizzi (pro hac vice)
`Ramy E. Hanna (DE Bar Id #:
`5494)
`395 9th Avenue, 50th Floor
`New York, NY 10001-8603
`(212) 402-9400
`srizzi@McKoolSmith.com
`rhanna@McKoolSmith.com
`
`Casey L. Shomaker (pro hac vice)
`300 Crescent Court, Suite 1500
`Dallas, Texas 75201
`(214) 978-4000
`cshomaker@mckoolsmith.com
`ATTORNEYS FOR PLAINTIFF
`ROBOCAST, INC.,
`
`/s/ Frederick L. Cottrell, III
`Frederick L. Cottrell, III (#2555)
`Griffin A. Schoenbaum (#6915)
`Richards, Layton & Finger, P.A.
`One Rodney Square
`920 North King Street
`Wilmington, DE 19801
`(302) 651-7700
`cottrell@rlf.com
`schoenbaum@rlf.com
`
`Jordan R. Jaffe
`Amy H. Candido
`Catherine Lacey
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`One Market Plaza, Suite 330
`San Francisco, CA 94105-1126
`
`ATTORNEYS FOR DEFENDANTS
`YOUTUBE, LLC AND GOOGLE LLC
`
`/s/ Kelly Farnan
`Kelly Farnan
`RICHARDS, LAYTON & FINGER P.A.
`One Rodney Square
`920 North King Street
`Wilmington, DE 19801
`(302) 651-7700
`farnan@rlf.com
`
`Tara D. Elliott
`Rachel Weiner Cohen
`Ashley M. Fry
`Diane E. Ghrist
`Tiffany C. Weston
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW
`Suite 1000
`Washington, DC 20004-1304
`(202) 637-2200
`ATTORNEYS FOR DEFENDANT
`NETFLIX, INC.
`
`16
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`

`

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`Case 1:22-cv-00305-RGA-JLH Document 47 Filed 02/21/23 Page 17 of 17 PageID #: 819
`Case 1:22-cv-00305-RGA-JLH Document 47 Filed 02/21/23 Page 17 of 17 PagelD #: 819
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`17
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