Case 1:23-cv-00220-MN Document 27 Filed 12/18/23 Page 1 of 15 PageID #: 1022
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ALMONDNET, INC. and INTENT IQ, LLC,
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`Case No. 23-CV-00220-MN
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`Plaintiffs,
`
`v.
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`FREEWHEEL MEDIA, INC. and
`BEESWAX.IO CORP.,
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`Defendants.
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`ALMONDNET, INC. and INTENT IQ, LLC,
`
`Case No. 23-CV-00174-MN
`
`Plaintiffs,
`
`v.
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`VIANT TECHNOLOGY LLC,
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`Defendant.
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`JOINT SCHEDULING ORDER
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`This 18th day of December 2023, the Court having conducted an initial Rule 16(b)
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`scheduling conference pursuant to Local Rule 16.1(b), and the parties having determined after
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`discussion that the matter cannot be resolved at this juncture by settlement, voluntary
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`mediation, or binding arbitration;
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`IT IS HEREBY ORDERED that:
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`1.
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`Rule 26(a)(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) by December 5, 2023. If they have not
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`already done so, the parties are to review the Court’s Default Standard for Discovery, Including
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`Discovery of Electronically Stored Information (‘‘ESI”), which is posted at
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`

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`
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`http://www.ded.uscourts.gov (see Other Resources, Default Standard for Discovery) and is
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`incorporated herein by reference.
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`2.
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`Joinder of Other Parties and Amendment of Pleadings. All motions to join other
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`parties, and to amend or supplement the pleadings, shall be filed on or before September 6,
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`2024. Unless otherwise ordered by the Court, any motion to join a party or motion to amend the
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`pleadings shall be made pursuant to the procedures set forth in Paragraphs 8(g) and 9.
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`3.
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`Application to Court for Protective Order. Should counsel find it will be
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`necessary to apply to the Court for a protective order specifying terms and conditions for the
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`disclosure of confidential information, counsel should confer and attempt to reach an agreement
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`on a proposed form of order and submit it to the Court on December 21, 2023. Should counsel
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`be unable to reach an agreement on a proposed form of order, counsel must follow the provisions
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`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 Revised
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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 filing of
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`the sealed document.
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`5.
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`Courtesy Copies. The parties shall provide to the Court two (2) courtesy copies of
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`all briefs and any other document filed in support of any briefs (i.e., appendices, exhibits,
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`declarations, affidavits etc.). This provision also applies to papers filed under seal. All courtesy
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`copies shall be double-sided.
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`

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`6.
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`ADR Process. This matter will not be referred to a magistrate judge to explore the
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`possibility of alternative dispute resolution. If at any time the parties wish to explore alternative
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`dispute resolution with a magistrate judge, they shall so inform the Court.
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`7.
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`Disclosures. Absent agreement among the parties, and approval of the Court:
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`(a)
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`By December 15, 2023, Plaintiffs shall identify the accused product(s),
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`including accused methods and systems, and their damages model, as well as the asserted
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`patent(s) that the accused product(s) allegedly infringe(s). Plaintiffs shall also produce the file
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`history for each asserted patent.
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`(b)
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`By February 2, 2024, Defendants shall produce core technical documents
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`related to the accused product(s), sufficient to show how the accused product(s) work(s),
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`including but not limited to non-publicly available operation manuals, product literature,
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`schematics, and specifications. Defendants shall also produce sales figures for the accused
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`product(s).1
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`(c)
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`By March 15, 2024, Plaintiffs 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 May 10, 2024, Defendants shall produce their 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 January 10, 2025, Plaintiffs shall provide final infringement contentions.
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`By February 7, 2025, Defendants shall provide final non-infringement contentions.
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`(f)
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`By January 17, 2025, Defendants shall provide final invalidity contentions.
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`By February 14, 2025, Plaintiffs shall provide final validity contentions.
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`8.
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`Discovery. Unless otherwise ordered by the Court or agreed to by parties, the
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`limitations on discovery set forth in the Federal Rules shall be strictly observed.
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`(a)
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`Fact Discovery Cut Off. All fact discovery in this case shall be initiated
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`so that it will be completed on or before December 13, 2024.
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`1 Defendants shall make source code available by this date.
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`

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`
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`(b) Document Production. Document production shall be substantially
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`complete by June 28, 2024.
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`(c)
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`Requests for Admission. A maximum of 25 requests for admission are
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`permitted for each side with no limit on Requests for Admission solely regarding authentication.
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`(d)
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`Interrogatories.
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`i.
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`A maximum of 25 interrogatories, including contention
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`interrogatories, are permitted for each side.
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`ii.
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`The Court encourages the parties to serve and respond to
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`contention interrogatories early in the case. In the absence of agreement among the parties,
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`contention interrogatories, if filed, shall first be addressed by the party with the burden of proof.
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`The adequacy of all interrogatory answers shall be judged by the level of detail each party
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`provides (i.e., the more detail a party provides, the more detail a party shall receive).
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`(e)
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`Depositions.
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`i.
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`Limitation on Hours for Deposition Discovery. Unless otherwise
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`agreed to or permitted by the Court, each side is limited to a total of 70 hours of taking testimony
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`by deposition upon oral examination. This limit does not include expert depositions.
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`ii.
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`Location of Depositions. Any party or representative (officer,
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`director, or managing agent) of a party filing a civil action in this district court must ordinarily be
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`required, upon request, to submit to a deposition at a place designated within this district.
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`Exceptions to this general rule may be made by order of the Court. A Defendant who becomes a
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`counterclaimant, cross-claimant, or third-party Plaintiff shall be considered as having filed an
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`action in this Court for the purpose of this provision.
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`
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`(f)
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`Disclosure of Expert Testimony.
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`i.
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`Expert Reports. For the party who has the initial burden of proof on the
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`subject matter, the initial Federal Rule of Civil Procedure 26(a)(2) disclosure of expert testimony
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`is due on or before July 23, 2025. The supplemental disclosure to contradict or rebut evidence on
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`the same matter identified by another party is due on or before August 15, 2025. Reply expert
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`
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`reports from the party with the initial burden of proof are due on or before September 5, 2025.
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`No other expert reports will be permitted without either the consent of all parties or leave of the
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`Court. Along with the submission of the reply expert reports, the parties shall advise of the dates
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`and times of their experts’ availability for deposition.
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`ii.
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`Expert Report Supplementation. The parties agree they will not permit
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`expert declarations to be filed in connection with motions briefing (including case-dispositive
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`motions). To be clear, however, such motions may cite and include material from expert reports
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`and depositions.
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`iii.
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`Objections to Expert Testimony. To the extent any objection to expert
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`testimony is made pursuant to the principles announced in Daubert v. Merrell Dow
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`Pharmaceuticals, Inc., 509 U.S. 579 (1993), as incorporated in Federal Rule of Evidence 702, it
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`shall be made by motion no later than the deadline for dispositive motions, the deadline for
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`which is no later than October 3, 2025; responses shall be filed by no later than October 24,
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`2025; and replies shall be filed by no later than November 7, 2025. Briefing on such motions is
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`subject to the page limits set out in connection with briefing of case dispositive motions.
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`iv.
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`Expert Discovery Cut-Off. All expert discovery in this case shall be
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`initiated so that it will be completed on or before September 19, 2025.
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`
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`(g)
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`Discovery Matters and Disputes Relating to Protective Orders.
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`i.
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`Any discovery motion filed without first complying with the following
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`procedures will be denied without prejudice to renew pursuant to these procedures.
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`ii.
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`Should counsel find, after a reasonable effort pursuant to Local Rule 7.1.1
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`that they are unable to resolve a discovery matter or a dispute relating to a protective order, the
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`parties involved in the discovery matter or protective order dispute shall contact the Court’s
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`Judicial Administrator to schedule an argument.
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`iii.
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`On a date to be set by separate order, generally not less than four (4) days
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`prior to the conference, the party 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 position on those issues. On a date to be set
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`by separate order, but generally not less than three (3) days prior to the conference, any party
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`opposing the application for relief may file a letter, not to exceed three (3) pages, outlining that
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`party's reasons for its opposition.
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`iv.
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`The parties shall provide to the Court two (2) courtesy copies of its
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`discovery letter and any other document filed in support of any letter (i.e., appendices, exhibits,
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`declarations, affidavits etc.). This provision also applies to papers filed under seal. All courtesy
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`copies shall be double-sided.
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`v.
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`Should the Court find further briefing necessary upon conclusion of the
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`conference, the Court will order it. Alternatively, the Court may choose to resolve the dispute
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`prior to the conference and will, in that event, cancel the conference.
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`9.
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`Motions to Amend / Motions to Strike.
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`(a) Any motion to amend (including a motion for leave to amend) a pleading
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`or any motion to strike any pleading or other document shall be made pursuant to the discovery
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`dispute procedure set forth in Paragraph 8(g) above.
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`(b)
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` Any such motion shall attach the proposed amended pleading as well as a
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`“redline” comparison to the prior pleading or attach the document to be stricken.
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`10.
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`Technology Tutorials. Although technology tutorials are not required by the
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`Court, they are appreciated and, if any party chooses to file such a tutorial, it shall be submitted
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`on May 23, 2025.
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`11.
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`Claim Construction Issue Identification. On August 2, 2024, the parties shall
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`exchange a list of those claim term(s)/phrase(s) that they believe need construction and their
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`proposed claim construction of those term(s)/phrase(s). This document will not be filed with the
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`Court. Subsequent to exchanging that list, the parties will meet and confer to prepare a Joint
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`Claim Construction Chart to be submitted on February 21, 2025. 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. Intrinsic
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`
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`evidence (including copies of the patent(s) at issue) shall NOT be attached to the joint claim
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`construction chart and, instead, the parties shall include a joint appendix with the joint claim
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`construction brief, and the joint appendix shall include a copy of the patent(s) at issue and
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`portions of all relevant intrinsic evidence that would have otherwise been included with the joint
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`claim construction chart, as well as any additional evidence cited in the parties’ briefing.
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`12.
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`Claim Construction Briefing. The Plaintiffs shall serve, but not file, its opening
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`brief, not to exceed 20 pages, on March 14, 2025. The Defendants shall serve, but not file, its
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`answering brief, not to exceed 30 pages, on April 18, 2025. The Plaintiffs shall serve, but not
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`file, its reply brief, not to exceed 20 pages, on May 2, 2025. The Defendants shall serve, but not
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`file, its sur-reply brief, not to exceed 10 pages, on May 9, 2025. No later than May 23, 2025, the
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`parties shall file a Joint Claim Construction Brief. The parties shall copy and paste their unfiled
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`briefs into one brief, with their positions on each claim term in sequential order, in substantially
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`the form below. If the joint brief as submitted is more than 80 pages, the parties must certify that
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`the page limits (or equivalent word counts) in the Scheduling Order have been complied with
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`and provide a brief explanation (e.g., formatting issues, listing of agreed-upon terms) as to why
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`the brief is longer than 80 pages.
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`JOINT CLAIM CONSTRUCTION BRIEF
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`I.
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`Agreed-Upon Constructions
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`II.
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`Disputed Constructions
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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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`4.
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`Plaintiffs’ Opening Position
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`Defendants’ Answering Position
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`Plaintiffs’ Reply Position
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`Defendants’ Sur-Reply Position
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`[TERM 2]
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`1.
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`2.
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`Plaintiffs’ Opening Position
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`Defendants’ Answering Position
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`3.
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`4.
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`Plaintiffs’ 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 construction. If there
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`are any materials that would be submitted in an index, the parties shall submit them in a Joint
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`Appendix.
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`13.
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`Hearing on Claim Construction. Beginning at 2:00 pm on June 13, 2025, the
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`Court will hear 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
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`parties shall notify the Court, by joint letter submission, no later than the date on which their
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`joint claim construction brief is filed: (i) whether they request leave to present testimony at the
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`hearing; and (ii) the amount of time they are requesting be allocated to them for the hearing.
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`Provided that the parties comply with all portions of this Scheduling Order, and any other
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`orders of the Court, the parties should anticipate that the Court will issue its claim construction order
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`within sixty (60) days of the conclusion of the claim construction hearing. If the Court is unable to
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`meet this goal, it will advise the parties no later than sixty (60) days after the conclusion of the claim
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`construction hearing.
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`14.
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`Supplementation. Absent agreement among the parties, and approval of the Court,
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`no later than November 1, 2024, the parties must finally supplement, inter alia, the identification
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`of all accused products and of all invalidity references.
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`15.
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`Case Dispositive and Daubert Motions.
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`(a)
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`All case dispositive and Daubert motions, an opening brief, and affidavits, if
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`any, in support of the motion shall be served and filed on or before October 3, 2025. Responsive
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`brief(s) shall be served and filed on or before October 24, 2025. Reply brief(s) shall be served and
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`filed on or before November 7, 2025, a date approximately four months prior to the pretrial
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`conference. Briefing will be presented pursuant to the Court’s Local Rules. No case dispositive or
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`Daubert motion under Rule 56 may be filed more than ten (10) days before the above date without
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`leave of the Court.
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`
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`(b)
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`Concise Statement of Facts Requirement. Any motion for summary judgment
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`shall be accompanied by a separate concise statement, not to exceed six (6) pages, which details each
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`material fact which the moving party contends is essential for the Court’s resolution of the summary
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`judgment motion (not the entire case) and as to which the moving party contends there is no genuine
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`issue to be tried. Each fact shall be set forth in a separate numbered paragraph and shall be supported
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`by specific citation(s) to the record.
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`Any party opposing the motion shall include with its opposing papers a response to
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`the moving party’s concise statement, not to exceed six (6) pages, which admits or disputes the facts
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`set forth in the moving party’s concise statement on a paragraph-by-paragraph basis. To the extent a
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`fact is disputed, the basis of the dispute shall be supported by specific citation(s) to the record.
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`Failure to respond to a fact presented in the moving party’s concise statement of facts shall indicate
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`that fact is not in dispute for purposes of summary judgment. The party opposing the motion may
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`also include with its opposing papers a separate concise statement, not to exceed four (4) pages,
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`which sets forth material facts as to which the opposing party contends there is a genuine issue to be
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`tried. Each fact asserted by the opposing party shall also be set forth in a separate numbered
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`paragraph and shall be supported by specific citation(s) to the record.
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`The moving party shall include with its reply papers a response to the opposing party’s
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`concise statement of facts, not to exceed four (4) pages, on a paragraph-by-paragraph basis. Failure
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`to respond to a fact presented in the opposing party’s concise statement of facts shall indicate that
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`fact remains in dispute for purposes of summary judgment.
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`(c)
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`Page limits combined with Daubert motion page limits. Each party is
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`permitted to file as many case dispositive motions as desired provided, however, that each SIDE will
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`be limited to a combined total of 40 pages for all opening briefs, a combined total of 40 pages for all
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`answering briefs, and a combined total of 20 pages for all reply briefs regardless of the number of
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`case dispositive motions that are filed. In the event that a party files, in addition to a case dispositive
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`motion, a Daubert motion to exclude or preclude all or any portion of an expert’s testimony, the total
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`amount of pages permitted for all case dispositive and Daubert motions shall be increased to 50
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`Case 1:23-cv-00220-MN Document 27 Filed 12/18/23 Page 10 of 15 PageID #: 1031
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`pages for all opening briefs, 50 pages for all answering briefs, and 25 pages for all reply briefs for
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`each SIDE.2
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`16.
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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 should contain the statement
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`required by Local Rule 7.1.1.
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`17. Motions in Limine. Motions in limine shall not be separately filed. All in limine
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`requests and responses thereto shall be set forth in the proposed pretrial order. Each SIDE shall
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`be limited to three (3) in limine requests, unless otherwise permitted by the Court. The in limine
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`request and any response shall contain the authorities relied upon; each in limine request may be
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`supported by a maximum of three (3) pages of argument, 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 (l) 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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`Pretrial Conference. On March 9, 2026,
`18.
`the Court will hold a pretrial conference in Court with counsel beginning at 4:30 p.m. Unless
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`otherwise ordered by the Court, the parties should assume that filing the pretrial order satisfies
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`the pretrial disclosure requirement of Federal Rule of Civil Procedure
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`26(a)(3). The parties shall file with the Court the joint proposed final pretrial order in compliance
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`with Local Rule 16.3(c) and the Court’s Preferences and Procedures for Civil Cases on March
`2, 2026. Unless otherwise
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`2 The parties must work together to ensure that the Court receives no more than a total of 250 pages
`(i.e., 50 + 50 + 25 regarding one side’s motions, and 50 + 50 + 25 regarding the other side’s motions)
`of briefing on all case dispositive motions and Daubert motions that are covered by this scheduling
`order and any other scheduling order entered in any related case that is proceeding on a consolidated
`or coordinated pretrial schedule
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`

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`ordered by the Court, the parties shall comply with the timeframes set forth in Local Rule
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`16.3(d)(1)-(3) for the preparation of the joint proposed final pretrial order.
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`The parties shall provide the Court two (2) double-sided courtesy copies of the joint proposed
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`final pretrial order and all attachments. The proposed final pretrial order shall contain a table of
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`contents and the paragraphs shall be numbered.
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`19.
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`Jury Instructions, Voir Dire, and Special Verdict Forms. Where a case is to be
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`tried to a jury, pursuant to Local Rules 47.1(a)(2) and 51.1 the parties should file (i) proposed
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`voir dire, (ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict
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`forms on March 2, 2026. This submission shall be accompanied by a courtesy copy containing
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`electronic files of these documents, in Microsoft Word format, which may be submitted by e-
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`mail to mn_civil@ded.uscourts.gov.
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`20.
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`Trial. This matter is scheduled for a five-day jury trial beginning at 9:30 a.m. on
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`March 16, 2026 (for Viant) and March 23, 2026 (for FreeWheel), with the subsequent trial
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`days beginning at 9:00 a.m. Until the case is submitted to the jury for deliberations, the jury will
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`be excused each day at 4:30 p.m. The trial will be timed, as counsel will be allocated a total
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`number of hours in which to present their respective cases.
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`21.
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`Judgment on Verdict and Post-Trial Status Report. Within seven (7) days after a
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`jury returns a verdict in any portion of a jury trial, the parties shall jointly submit a form of order
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`to enter judgment on the verdict. At the same time, the parties shall submit a joint status report,
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`indicating among other things how the case should proceed and listing any post-trial motions
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`each party intends to file.
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`22.
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`Post-Trial Motions. Unless otherwise ordered by the Court, all SIDES are limited
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`to a maximum of 20 pages of opening briefs, 20 pages of answering briefs, and 10 pages of reply
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`briefs relating to any post-trial motions filed by that side, no matter how many such motions are
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`filed.
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`Case 1:23-cv-00220-MN Document 27 Filed 12/18/23 Page 12 of 15 PageID #: 1033
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`The Honorable Maryellen Noreika
`United States District Judge
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`

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`Case 1:23-cv-00220-MN Document 27 Filed 12/18/23 Page 13 of 15 PageID #: 1034
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`Counsel Shall Provide a Chart of All Relevant Deadlines
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`EVENT
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`DEADLINE
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`Rule 26(a)(1) Initial Disclosures and E-Discovery
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`Tuesday, December 5, 2023
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`Default Standard (¶ 1)
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`Application to Court for Protective Order (¶ 3)
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`Thursday, December 21, 2023
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`Plaintiff to identify accused method(s) and/or products,
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`Friday, December 15, 2023
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`damages model, asserted patents, and produce file
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`histories (¶ 7a)
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`Defendant to produce core technical documents and
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`Friday, February 2, 2024
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`sales figures of accused methods(s) and/or products (¶
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`7b)
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`Plaintiff to produce an initial infringement claim chart
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`Friday, March 15, 2024
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`(¶ 7c)
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`Defendant to produce its initial invalidity contentions (¶
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`Friday, May 10, 2024
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`7d)
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`Exchange list of claim terms and proposed constructions
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`Friday, August 2, 2024
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`(¶ 11)
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`Document production substantially complete (¶ 8b)
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`Friday, June 28, 2024
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`The parties must finally supplement, inter alia, the
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`Friday, November 1, 2024
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`identification of all accused products and of all
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`invalidity references. (¶ 14).
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`Joinder of other parties and amendment of pleadings (¶
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`Friday, September 6, 2024
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`2)
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`Fact discovery cut off (¶ 8a)
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`Friday, December 13, 2024
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`Plaintiff to provide final infringement contentions and
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`Friday, January 10, 2025
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`

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`Case 1:23-cv-00220-MN Document 27 Filed 12/18/23 Page 14 of 15 PageID #: 1035
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`identification of accused products (¶ 7e)
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`Defendant to provide final invalidity contentions and
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`Friday, January 17, 2025
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`identification of invalidity references (¶ 7f)
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`Final Non-Infringement Contentions
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`Friday, February 7, 2025
`
`Final Validity Contentions
`
`Friday, February 14, 2025
`
` Submit joint claim construction chart (¶ 11)
`
`Friday, February 21, 2025
`
`Serve Plaintiff’s opening claim construction brief (20
`
`Friday, March 14, 2025
`
`pages) (¶ 12)
`
`Serve Defendant’s answering claim construction brief
`
`Friday, April 18, 2025
`
`(30 pages) (¶ 12)
`
`Serve Plaintiffs’ reply claim construction brief (20
`
`Friday, May 2, 2025
`
`pages) (¶ 12)
`
`Serve Defendant’s sur-reply claim construction brief (10
`
`Friday, May 9, 2025
`
`pages) (¶ 12)
`
`File joint claim construction brief (¶ 12); joint letter re:
`
`Friday, May 23, 2025
`
`live testimony and amount of time for the claim
`
`construction hearing (¶ 12); technology tutorials (¶ 10)
`
`Claim construction hearing (¶ 13)
`
`Friday, June 13, 2025 at 2:00 p.m.
`
`Opening expert reports (¶ 8.f.i)
`
`Wednesday, July 23, 2025
`
`Responsive expert reports (¶ 8.f.i)
`
`Friday, August 15, 2025
`
`Reply expert reports (¶ 8.f.i)
`
`Friday, September 5, 2025
`
`End of expert discovery period (¶ 8.f.iv)
`
`Friday, September 19, 2025
`
`Case dispositive motions and opening briefs therefor (¶
`
`Friday, October 3, 2025
`
`8.f.iii) Daubert motions and opening briefs therefor (¶
`
`8.f.iii)
`
`

`

`Case 1:23-cv-00220-MN Document 27 Filed 12/18/23 Page 15 of 15 PageID #: 1036
`
`Responsive brief(s) for dispositive motions and Daubert
`
`Friday, October 24, 2025
`
`motions (¶ 15(a); Local Rule 7.1.2(b))
`
`Reply brief for dispositive motions and Daubert motions
`
`Friday, November 7, 2025
`
`(¶ 15(a); Local Rule 7.1.2(b))
`
`Jury instructions, voir dire, and special verdict forms (¶
`
`March 2, 2026
`
`19)
`
`Joint proposed pretrial order (¶ 17; Local Rule 16.3(c))
`
`March 2, 2026
`
`Pretrial conference (¶ 18)
`
`March 9, 2026 at 4:30 p.m.
`
`Five-day Jury trial (¶ 19)
`
`Viant: March 16, 2026
`Freewheel: March 23, 2026
`
`Proposed judgment on verdict and post-trial status
`
`7 days after verdict
`
`report (¶ 20)
`
`