`Case 2:22-cv-00828-CDS-BNW Document 37 Filed 08/29/22 Page 1 of 7Case 2:22-cv-00828-CDS-BNW Document 39 Filed 08/30/22 Page 1 of 7
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`
`UNITED STATES DISTRICT COURT
`DISTRICT OF NEVADA
`
`ALLEGIANT TRAVEL COMPANY,
`Plaintiff,
`
`v.
`R2 SOLUTIONS LLC,
`Defendant.
`
`
`
`
`Case No. 2:22-cv-00828-CDS-BNW
`DISCOVERY PLAN AND
`SCHEDULING ORDER
`SPECIAL SCHEDULING REVIEW
`REQUESTED FOR A PATENT CASE
`
`
`Under Fed. R. Civ. P. 26(f), Local Rule 26-1, and Patent Local Rules 16-1, et seq., the
`Parties conducted a discovery-planning conference on August 15, 2022, and hereby submit to the
`Court the following proposed Discovery Plan and Scheduling Order.
`I.
`INFORMATION PURSUANT TO FED. R. CIV. P. 26(f)(3)
`A.
`Initial Disclosures: The Parties will make, their initial disclosures on August 29,
`2022, pursuant to the timing, form, and requirements of Fed. R. Civ. P. 26(a).
`B.
`Subjects, Timing, and Phases of Discovery: The Parties agree that discovery will
`include all matters within the scope of the Federal Rules of Civil Procedure, and will be
`conducted pursuant to the deadlines in the Discovery Plan and Scheduling Order, once entered.
`In Section III, Allegiant proposes dates for written discovery, contentions, and claim construction
`proceedings using the format provided in LPR 1-22 unless otherwise indicated. As discussed
`below in Section III, R2 Solutions objects to the entry of any discovery plan and scheduling order
`as premature.
`Based on the information currently available, the Parties do not foresee the need to
`conduct discovery in phases or limit it to any particular issues.
`C.
`Issues Regarding Electronically Stored Information: The Parties are engaged in
`ongoing negotiations regarding a stipulated agreement governing the discovery of electronically
`stored information (“ESI”) to be entered by the Court.
`D.
`Issues Regarding Claims of Privilege and Protection: Pursuant to Local Patent
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`CASE NO: 2:22-cv-00828-CDS-BNW
`LPR 1-22 DISCOVERY PLAN AND SCHEDULING ORDER
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`Rule 1-4(a), the Parties will submit a Proposed Protective Order to the Court on August 29, 2022.
`E.
`Changes in Limitations on Discovery: In addition to those contained in the Parties’
`forthcoming stipulated agreement regarding ESI and in the Parties’ Proposed Protective Order,
`the Parties propose the following:
`
`1.
`The Parties agree that circumstances may arise in which it would be more
`practicable to conduct depositions through virtual or remote means rather than in person. In such
`circumstances, the Parties agree to confer in good faith in an attempt to accommodate requests for
`depositions through virtual or remote means.
`
`2.
`The Parties shall coordinate non-party depositions in an effort to avoid
`non-parties being asked to give more than one deposition. In the event a party discovers new
`information that is relevant to a non-party who was previously deposed, the Parties shall not be
`precluded from seeking to re-depose the non-party during Discovery.
`
`3.
`The Parties shall serve courtesy copies of all discovery requests (i.e.,
`interrogatories, requests for production of documents and things, and requests for admission) in
`Microsoft Word format.
`
`4.
`The Parties agree that all discovery requests and responses shall be served
`on counsel of record via e-mail. No paper copies will be required for any such requests or
`responses.
`The Parties agree that each side should be permitted forty (40) hours of
`5.
`
`non-expert deposition testimony.
`
`6.
`The Parties agree that each side should be permitted to serve no more than
`twenty-five (25) non-authentication requests for admission.
`II.
`CERTIFICATION PURSUANT TO LOCAL LPR 4(d) AND LR 26-1(b)
`Pursuant to Local Patent Rule 1-4(d), the Parties hereby certify that they have discussed
`whether the appointment of a Special Master is appropriate. The Parties do not believe that the
`appointment of a Special Master is appropriate at this time.
`Pursuant to Local Rule 26-1(b)(7), the Parties hereby certify that they have met and
`conferred regarding the possibility of using alternative dispute-resolution processes, including
`
`
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`CASE NO: 2:22-cv-00828-CDS-BNW
`LPR 1-22 DISCOVERY PLAN AND SCHEDULING ORDER
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`mediation, arbitration, and if applicable, early neutral evaluation. The Parties agree that no
`alternative dispute-resolution processes other than those required by Local Patent Rule 1-19 are
`necessary at this time.
`Pursuant to Local Rule 26-1(b)(8), the Parties hereby certify that they have considered
`consent to trial by a magistrate judge under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, and the use
`of the Short Trial Program (General Order 2013-01). The Parties do not consent to these
`alternative forms of case disposition at this time.
`Pursuant to Local Rule 26-1(b)(9), the Parties hereby certify that they have discussed
`whether they intend to present evidence in electronic format to jurors for the purposes of jury
`deliberations. The Parties are engaged in ongoing negotiations regarding a stipulated agreement
`governing the discovery of ESI to be entered by the Court.
`The parties have not yet entered into any stipulations regarding providing discovery in an
`electronic format compatible with the Court’s electronic jury evidence display system; however,
`the parties agree to work in good faith so that electronic formatted evidence is properly presented
`at the time of any trial.
`III. PROPOSED DISCOVERY PLAN AND SCHEDULING ORDER
`
`A.
`Plaintiff Allegiant Travel Company’s Position
`Allegiant proposes dates for written discovery, contentions, and claim construction
`proceedings using the format provided in LPR 1-22 unless otherwise indicated. Since Allegiant
`pled for declaratory judgment of non-infringement in its Complaint, the first deadline for
`contentions in the proposed schedule is for Allegiant to serve its initial non-infringement
`contentions, on September 6, 2022.
`Defendant R2 Solutions has not yet submitted its response on the merits to Plaintiff
`Allegiant’s Complaint. Allegiant’s proposed schedule includes a deadline for R2 Solutions to
`serve infringement contentions on October 18, 2022, which should provide sufficient time for a
`ruling on R2 Solutions’ motion to dismiss and for R2 Solutions to file its Answer and
`Counterclaims. Once R2 files its Answer and Counterclaims for infringement, Allegiant will file
`an Answer thereto, which may include affirmative defenses of invalidity under 35 U.S.C. §§ 101,
`
`
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`CASE NO: 2:22-cv-00828-CDS-BNW
`LPR 1-22 DISCOVERY PLAN AND SCHEDULING ORDER
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`102, 103, and/or 112. In the proposed schedule, after R2 Solutions serves its infringement
`contentions, Allegiant will serve invalidity contentions and responses to R2 Solutions’
`infringement contentions.
`LPR 1-11 pertains to serving contentions as a “Disclosure Requirement In Patent Cases
`For Declaratory Judgment of Invalidity.” Allegiant submits that this local rule does not apply
`because Allegiant has not pled for declaratory judgment of invalidity, and so patent invalidity is
`not yet an issue in the case.
`R2 Solutions asserts (below) that the Court should not issue any schedule while R2
`Solutions’ motion to dismiss is pending. Allegiant asserts that there is no need to delay issuing a
`schedule. If R2 Solutions no longer contends that Allegiant is infringing the patents-in-suit, then
`R2 Solutions should disclose this in contentions on or before a scheduled deadline so that the
`parties’ dispute can be resolved.
`
`B.
`Defendant R2 Solutions LLC’s Position
`
`R2 Solutions objects to the entry of any discovery plan and scheduling order at this
`juncture, and, thus, has not offered any modifications. Any discovery plan and scheduling order
`is premature and should await the Court’s decision on R2 Solutions’ pending motion to dismiss.
`By way of example, the proposed discovery plan and scheduling order contemplates R2
`Solutions’ disclosure of asserted claims and infringement contentions by October 18, 2022. R2
`Solutions has made no patent infringement allegations but has, instead, moved to dismiss the case
`for lack of jurisdiction because there is no case or controversy. Allegiant’s proposed schedule
`purports to force R2 Solutions to make infringement allegations despite the pending case-
`dispositive motion. R2 Solutions proposes that a case-appropriate discovery plan and scheduling
`order be discussed and ultimately proposed by the Parties within two weeks of the Court’s
`decision on the motion to dismiss, if necessary.
`
`1. Discovery Cut-Off
`
`Joint Protective Order
`
`2.
`
`May 12, 2023 (270 days)
`August 29, 2022 [14 days after discovery-
`planning conference]
`August 29, 2022
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`3. Disclosure of Rule 26(a) Initial
`Disclosures
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`CASE NO: 2:22-cv-00828-CDS-BNW
`LPR 1-22 DISCOVERY PLAN AND SCHEDULING ORDER
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`4. Disclosure of Non-Infringement
`Contentions
`
`5. Disclosure of Asserted Claims and
`Infringement Contentions
`
`6. Disclosure of Invalidity and
`Unenforceability Contentions and
`Responsive Non-infringement
`Contentions
`7. Motion to Amend Pleadings/Parties
`
`8. Exchange of Proposed Terms of
`Construction
`
`9. Exchange of Preliminary Claim
`Construction
`
`10. Submit Joint Claim Construction and
`Prehearing Statement
`
`11. Opening Claim Construction Brief
`
`12. Response to Claim Construction Brief
`
`13. Reply Claim Construction Brief and
`Matter Submitted to Court for Hearing
`
`14. Claim Construction Tutorials, Hearing,
`and Order from the Court
`
`15. Disclosure of amended contentions
`under LPR 1-18a and opinion of counsel
`defense under LPR 1-18b
`
`16. Expert Designations
`
`17. Rebuttal Expert Designations
`
`18. Expert Discovery Cut-off
`
`19. Dispositive Motion Deadline
`
`September 6, 2022
`
`October 18, 2022 [45 days later]
`
`November 29, 2022 [45 days later]
`
`February 11, 2023 [90 days to close of
`discovery]
`November 14, 2022 [90 days from
`Scheduling Conference]
`November 28, 2022 [14 days later]
`
`December 12, 2022 [14 days later]
`
`January 2, 2023 [21 days later]
`January 23, 2023 [21 days later]
`January 30, 2023 [7 days later]
`
`March 31, 2023 [within 60 days after the
`Reply brief is filed, the Court will complete its
`hearing, and issue its order within an
`additional 60 days. If the Court is unable to
`issue its order within 120 days after
`submission of the Reply brief, the Court may
`reset expert disclosure deadlines as requested
`by a party or stipulation]
`
`May 1, 2023 [30 days after the Claim
`Construction Order] )
`
`May 30, 2023 [60 days after Claim
`construction Order issued by Court]
`
`June 29, 2023 [30 days after the Claim
`Construction Order]
`
`July 27, 2023 [30 days after Rebuttal Expert
`Designations]
`
`August 24, 2023 [30 days after expert
`discovery closes]
`
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`CASE NO: 2:22-cv-00828-CDS-BNW
`LPR 1-22 DISCOVERY PLAN AND SCHEDULING ORDER
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`IT IS ORDERED that within 30 days after the Court enters a Claim Construction Order,
`
`the parties must submit to a Post-Claim Construction Settlement Conference as set by the Court.
`IT IS FURTHER ORDERED that any extension of the discovery deadline will not be
`allowed without a showing of good cause for the extension. All motions or stipulations to extend
`discovery must be received by the Court at least 21 days before the expiration of the subject
`deadline. A request made after this date will not be granted unless the movant demonstrates that
`the failure to act was the result of excusable neglect. The motion or stipulation must include.
`
`
`(a)
`
`A statement specifying the discovery completed by the parties as of the date of
`the motion or stipulation;
`
`A specific description of the discovery that remains to be completed;
`
`The reasons why the remaining discovery was not completed within the time
`limit of the existing discovery deadline; and
`
`A proposed schedule for the completion of all remaining discovery.
`(d)
`IT IS FURTHER ORDERED that, if no dispositive motions will be filed within the time
`specified in this order, then the Parties must file a written, joint proposed pretrial order within 30
`days of the dispositive motion cutoff, on or before September 24, 2023. If dispositive motions are
`filed, then the parties must file a written, joint proposed pretrial order within 30 days of the date
`the Court enters a ruling on the dispositive motions. Within 30 days of the entry of a pretrial
`order, or as further ordered by the Court, the parties must submit to a pretrial settlement
`conference.
`
`RESPECTFULLY SUBMITTED this 29th day of August 2022.
`
`
`
`(b)
`
`(c)
`
` /s/ Michael A. Oblon
`Patrick Hicks
`LITTLER MENDELSON P.C.
`3960 Howard Hughes Pkwy, Suite 300
`Las Vegas, NV 89169
`Telephone: (702) 862-7700
`Email: phicks@littler.com
`
`JONES DAY
`Michael A. Oblon (pro hac vice)
`51 Louisiana Ave, NW
`Washington, DC 20001
`
`/s/ Edward R. Nelson III
`Edward R. Nelson III
`Christopher G. Granaghan
`John P. Murphy
`Carder W. Brooks
`NELSON BUMGARDNER CONROY PC
`3131 West 7th Street, Suite 300
`Fort Worth, TX 76107
`Telephone: (817) 377-9111
`ed@nelbum.com
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`CASE NO: 2:22-cv-00828-CDS-BNW
`LPR 1-22 DISCOVERY PLAN AND SCHEDULING ORDER
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`Telephone: (202) 879-3815
`Email: moblon@jonesday.com
`
`Keith A. Davis (pro hac vice)
`2727 North Harwood
`Dallas, TX 75201
`Telephone: (214) 969-4528
`Email: kdavis@jonesday.com
`
`H. Albert Liou (pro hac vice)
`717 Texas Ave, Suite 3300
`Houston, TX 77002
`Telephone: (832) 239-3828
`Email: aliou@jonesday.com
`
`Attorneys for Plaintiff Allegiant Travel
`Company
`
`
`
`
`chris@nelbum.com
`murphy@nelbum.com
`carder@nelbum.com
`
`Joseph R. Ganley (5643)
`Piers R. Tueller (14633)
`HUTCHISON & STEFFEN, PLLC
`Peccole Professional Park
`10080 West Alta Drive, Suite 200
`Las Vegas, Nevada 89145
`jganley@hutchlegal.com
`ptueller@hutchlegal.com
`
`Attorneys for Defendant R2 Solutions LLC
`
`IT IS SO ORDERED
`
`
`
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`
`
`UNITED STATES MAGISTRATE JUDGE
`DATED:
`
`
`
`
`
`
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`-7-
`CASE NO: 2:22-cv-00828-CDS-BNW
`LPR 1-22 DISCOVERY PLAN AND SCHEDULING ORDER
`
`ORDER
`
`IT IS ORDERED that ECF No. 37 is GRANTED in
`part and DENIED in part. It is granted to the
`extent that the Court adopts the deadlines
`proposed by Plaintiff. If Defendant seeks to stay
`discovery, it must file an appropriate motion.
`
`IT IS SO ORDERED
`DATED:
`
`
`BRENDA WEKSLER
`UNITED STATES MAGISTRATE JUDGE
`
`12:46 pm, August 30, 2022
`
`