Case 1:13-cv-01674-RGA Document 347 Filed 10/23/15 Page 1 of 22 PageID #: 9482
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 1:13-cv-01674-RGA
`
`Consolidated
`
`REDACTED VERSION DI 399
`
`C.A. No. 1:14-cv-00422-RGA
`
`))))))))))))
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`))))))))))))
`
`RECKITT BENCKISER
`PHARMACEUTICALS INC., RB
`PHARMACEUTICALS LIMITED, and
`MONOSOL RX, LLC,
`
`Plaintiffs,
`
`v.
`WATSON LABORATORIES, INC. and
`ACTAVIS LABORATORIES UT, INC.,
`
`Defendants.
`
`RECKITT BENCKISER
`PHARMACEUTICALS INC., RB
`PHARMACEUTICALS LIMITED, and
`MONOSOL RX, LLC,
`
`Plaintiffs,
`
`v.
`PAR PHARMACEUTICAL, INC., and
`INTELGENX TECHNOLOGIES CORP.
`
`Defendants.
`
`PROPOSED JOINT PRETRIAL ORDER
`
`Volume 1
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`Case 1:13-cv-01674-RGA Document 347 Filed 10/23/15 Page 2 of 22 PageID #: 9483
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`Mary W. Bourke (#2356)
`Dana K. Severance (#4869)
`Daniel M. Attaway (#5130)
`WOMBLE CARLYLE SANDRIDGE & RICE, LLP
`222 Delaware Avenue, Suite 1501
`Wilmington, DE 19801
`Telephone: (302) 252-4320
`Facsimile: (302) 252-4330
`mbourke@wcsr.com
`dseverance@wcsr.com
`dattaway@wcsr.com
`
`Steven J. Fineman (#4025)
`Katharine C. Lester (#5629)
`RICHARDS LAYTON & FINGER, P.A.
`One Rodney Square
`920 N. King Street
`Wilmington, DE 19807
`Telephone: (302) 651-7700
`Facsimile: (302) 651-7701
`fineman@rlf.com
`lester@rlf.com
`
`Counsel for Plaintiffs
`
`OF COUNSEL:
`
`Daniel A. Ladow
`James M. Bollinger
`Timothy P. Heaton
`J. Magnus Essunger
`TROUTMAN SANDERS LLP
`875 Third Avenue
`New York, NY 10022
`Telephone: (212) 704-6000
`Facsimile: (212) 704-6288
`Daniel.ladow@troutmansanders.com
`James.bollinger@troutmansanders.com
`Timothy.heaton@troutmansanders.com
`Magnus.essunger@troutmansanders.com
`
`Charanjit Brahma
`TROUTMAN SANDERS LLP
`580 California Street
`Suite 1100
`San Francisco, CA 94104
`Telephone: (415) 477-5700
`Facsimile: (415) 477-5710
`charanjit.brahma@troutmansanders.com
`
`Robert E. Browne, Jr.
`TROUTMAN SANDERS LLP
`55 West Monroe Street
`Suite 3000
`Chicago, IL 60603
`Telephone: (312) 759-1920
`
`Counsel for Defendants Par Pharmaceutical,
`Inc. and IntelGenx Technologies Corp.
`
`OF COUNSEL:
`
`Daniel G. Brown
`LATHAM & WATKINS LLP
`885 Third Avenue
`New York, NY 10022
`Telephone: (212) 906-1200
`Facsimile: (212) 751-4864
`daniel.brown@lw.com
`
`James K. Lynch
`LATHAM & WATKINS LLP
`505 Montgomery Street
`Suite 2000
`San Francisco, CA 94111-6538
`Telephone: (415) 391-0600
`Facsimile: (415) 395-8095
`jim.lynch@lw.com
`
`Terry Kearney
`LATHAM & WATKINS LLP
`140 Scott Drive
`Menlo Park, CA 92025
`Telephone: (650) 328-4600
`Facsimile: (650) 463-2600
`Email: terry.kearney@lw.com
`
`Jennifer Koh
`B. Thomas Watson
`LATHAM & WATKINS LLP
`12670 High Bluff Drive
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`Case 1:13-cv-01674-RGA Document 347 Filed 10/23/15 Page 3 of 22 PageID #: 9484
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`San Diego, CA 92130
`Telephone: (858) 523-5400
`Facsimile: (858) 523-5450
`jennifer.koh@lw.com
`thomas.watson@lw.com
`
`Emily C. Melvin
`Brenda L. Danek
`LATHAM & WATKINS LLP
`330 North Wabash Avenue
`Suite 2800
`Chicago, IL 60611
`Telephone: (312) 876-7700
`Facsimile: (312) 993-9767
`emily.melvin@lw.com
`brenda.danek@lw.com
`
`Counsel for Defendants Par
`PharmaceuticalInc. and IntelGenx
`Technologies Corp.
`
`Facsimile: (312) 759-1939
`robert.browne@troutmansanders.com
`
`Puja Patel Lea
`TROUTMAN SANDERS LLP
`600 Peachtree Street, NE
`Suite 5200
`Atlanta, GA 30308
`Telephone: (404) 885-3000
`Facsimile: (404) 885-3900
`puja.lea@troutmansanders.com
`
`Jeffrey B. Elikan
`Jeffrey Lerner
`Erica N. Andersen
`Ashley Kwon
`COVINGTON & BURLING LLP
`One CityCenter
`850 Tenth St. NW
`Washington, DC 20001
`202.662.6000
`jelikan@cov.com
`jlerner@cov.com
`eandersen@cov.com
`akwon@cov.com
`
`Counsel for Plaintiff Reckitt Benckiser
`Pharmaceuticals Inc. & RB Pharmaceuticals
`Limited
`
`James F. Hibey
`Timothy C. Bickham
`STEPTOE & JOHNSON LLP
`1330 Connecticut Avenue, NW
`Washington DC 20036
`Telephone: (202) 429-3000
`Facsimile: (202) 429-3902
`jhibey@steptoe.com
`tbickham@steptoe.com
`
`David L. Hecht
`Cassandra A. Adams
`STEPTOE & JOHNSON LLP
`1114 Avenue of the Americas
`New York, NY 10036
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`Case 1:13-cv-01674-RGA Document 347 Filed 10/23/15 Page 4 of 22 PageID #: 9485
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`Telephone: (212) 506-3905
`Facsimile: (212) 506-3950
`dhecht@steptoe.com
`cadams@steptoe.com
`
`Counsel for Plaintiff MonoSol Rx, LLC
`
`John C. Phillips, Jr. (#110)
`Megan C. Haney (#5016)
`PHILLIPS, GOLDMAN & SPENCE, P.A.
`1200 North Broom Street
`Wilmington, DE 19806
`Telephone: (302) 655-4200
`Facsimile: (302) 655-4210
`jcp@pgslaw.com
`mch@pgslaw.com
`
`Counsel for Defendants Watson Laboratories,
`Inc. and Actavis Laboratories UT, Inc.
`
`OF COUNSEL:
`
`George C. Lombardi
`Michael K. Nutter
`Tyler G. Johannes
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`Telephone: (312) 558-5600
`Facsimile: (312) 558-5700
`glombard@winston.com
`mnutter@winston.com
`tjohannes@winston.com
`
`Counsel for Defendants Watson Laboratories,
`Inc. and Actavis Laboratories UT, Inc.
`
`OF COUNSEL:
`
`Melinda K. Lackey
`WINSTON & STRAWN LLP
`1111 Louisiana, 25th Floor
`Houston, TX 77002
`Telephone: (713) 651-2600
`Facsimile: (713) 651-2700
`mlackey@winston.com
`
`Stephen Smerek
`David P. Dalke
`Jason C. Hamilton
`WINSTON & STRAWN LLP
`333 S. Grand Ave., Suite 3800
`Los Angeles, CA 90071
`Telephone: (213) 615-1700
`Facsimile: (213) 615-1750
`ssmerek@winston.com
`ddalke@winston.com
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`Case 1:13-cv-01674-RGA Document 347 Filed 10/23/15 Page 5 of 22 PageID #: 9486
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`TABLE OF CONTENTS
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`Page
`
`Nature of the Case and Pleadings (L.R. 16.3(1))............................................................... 1
`I.
`Jurisdiction (L.R. 16.3(2)) ................................................................................................. 2
`II.
`Admitted Facts (L.R. 16.3(3))............................................................................................ 2
`III.
`Disputed Facts (L.R. 16.3(4)) ............................................................................................ 2
`IV.
`Issues of Law (L.R. 16.3(5)).............................................................................................. 3
`V.
`Exhibits (L.R. 16.3(6))....................................................................................................... 3
`VI.
`VII. Witnesses (L.R. 16.3(7)).................................................................................................... 7
`VIII. Brief Statement of Intended Proofs (L.R. 16.3(8-9))....................................................... 10
`IX.
`Amendments to Pleadings (L.R. 16.3(11)) ...................................................................... 11
`X.
`Certification of Settlement Discussions (L.R. 16.3(12)) ................................................. 11
`XI. Miscellaneous Issues (L.R. 16.3(13)) .............................................................................. 11
`A.
`In Limine Motions ............................................................................................... 11
`B.
`Expected Duration and Scope of Trial................................................................. 11
`C.
`Type of Trial ........................................................................................................ 12
`D.
`Order of Proof...................................................................................................... 12
`E.
`Protective Order and Corporate Representatives in Courtroom .......................... 13
`XII. Order To Control Course of Action................................................................................. 13
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`-i-
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`Case 1:13-cv-01674-RGA Document 347 Filed 10/23/15 Page 6 of 22 PageID #: 9487
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`Plaintiffs Reckitt Benckiser Pharmaceuticals Inc. (“RBP”), RB Pharmaceuticals Limited
`
`(“RBP UK”), and MonoSol Rx, LLC (“Monosol”) (collectively, “Plaintiffs”) and Defendants Par
`
`Pharmaceutical, Inc. and IntelGenx Technologies Corp. (“Par”), and Watson Laboratories, Inc.
`
`and Actavis Laboratories UT, Inc. (“Watson”) (collectively, “Defendants”) submit the following
`
`pretrial order for the Court’s consideration.
`
`I.
`
`Nature of the Case and Pleadings (L.R. 16.3(1))
`
`1.
`
`This is an action partially consolidating two cases. (See Order, D.I. 66). The first
`
`case, Reckitt Benckiser Pharmaceuticals Inc., et al. v. Watson Laboratories, Inc. and Actavis
`
`Laboratories UT, Inc., C.A. No. 13-1674-RGA, was filed on October 8, 2013. (See Complaint,
`
`D.I. 1). The second case, Reckitt Benckiser Pharmaceuticals Inc., et al. v. Par Pharmaceuticals,
`
`Inc., et al., C.A. No. 14-222-RGA, was filed on April 4, 2014. (See Complaint, C.A. No. 14-222-
`
`RGA, D.I. 1). In both cases, Plaintiffs claim infringement against Defendants of United States
`
`Patent Nos. 8,475,832 (“the ʼ832 Patent”), 8,603,514 (“the ’514 Patent”), and 8,017,150 (“the
`
`ʼ150 Patent”) (collectively, “the patents-in-suit”). (See Second Amended Complaint Against
`
`Watson, D.I. 287; Third Amended Complaint Against Par, D.I. 80).
`
`2.
`
`Defendants counterclaim for non-infringement and invalidity of the patents-in-
`
`suit. (See Watson’s Answer and Counterclaims to Second Amended Complaint, D.I. 300; Par’s
`
`Answer to Third Amended Complaint, D.I. 81). Defendant Watson Laboratories, Inc. seeks
`
`dismissal from the action because it states that it is no longer a party-in-interest. See Watson’s
`
`Answer and Counterclaims to Second Amended Complaint, D.I. 300).
`
`3.
`
`Plaintiffs have denied the relief sought by way of Defendants’ Counterclaims.
`
`(Plaintiffs’ Answer to Defendant Par Pharmaceutical, Inc. and IntelGenx Technologies Corp.’s
`
`Counterclaims, D.I. 82; Plaintiffs’ Answer to Defendants’ Counterclaims, D.I. 304).
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`1
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`Case 1:13-cv-01674-RGA Document 347 Filed 10/23/15 Page 7 of 22 PageID #: 9488
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`4.
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`The cases are consolidated for a trial on November 2-4, 2015 of (1) Plaintiffs’
`
`infringement case against the Watson Defendants and (2) the Watson and Par Defendants’
`
`invalidity case.1 Pursuant to the Court’s Trial Scheduling Order of April 2, 2015 (D.I. 240), and
`
`Plaintiffs’ election of April 16, 2015 (D.I. 258), Plaintiffs’ infringement case against the Par
`
`Defendants will be the subject of a separate trial to be held in December 2015.
`
`II.
`
`Jurisdiction (L.R. 16.3(2))
`
`5.
`
`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
`
`§§ 1331, 1338(a), 2201, and 2202 as a result of the patent infringement claims and related
`
`declaratory judgment counterclaims in this action. The Defendants do not contest subject matter
`
`jurisdiction over this action.
`
`III.
`
`Admitted Facts (L.R. 16.3(3))
`
`6.
`
`The parties stipulate to the facts listed in attached Exhibit 1. These stipulated
`
`facts require no proof at trial and will become part of the evidentiary record in this case.
`
`IV.
`
`Disputed Facts (L.R. 16.3(4))
`
`7.
`
`Plaintiffs’ statement of the issues of facts that remain to be litigated is attached as
`
`Exhibit 2. Plaintiffs reserve all rights to revise and/or supplement their Statements in the event
`
`that Defendants attempt to present any prior art not set forth in their disclosure of asserted prior
`
`art references (Letter dated 9/15/15 as clarified in the letter dated 10/15/2015), and/or any
`
`references, combinations of references for obviousness, and/or any other invalidity arguments
`
`not set forth in Defendants’ Statement of Facts. Further, for avoidance of doubt, Plaintiffs
`
`dispute and reserve all rights to introduce evidence and argument rebutting the statements set
`
`1 This Pretrial Order concerns only Plaintiffs’ infringement case against the Watson Defendants,
`and Defendants’ invalidity case against Plaintiffs.
`
`2
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`forth in Defendants’ Statement of Facts and Defendants’ Statement of Issues of Law Remaining
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`to be Litigated.
`
`8.
`
`Defendants’ statement of the issues of facts that remain to be litigated is attached
`
`as Exhibit 3. For avoidance of doubt, Defendants dispute and reserve all rights to introduce
`
`evidence and argument rebutting the statements set forth in Plaintiffs’ Statement of Facts that
`
`Remain to be Litigated, and Statement of Issues of Law Remaining to be Litigated
`
`V.
`
`Issues of Law (L.R. 16.3(5))
`
`9.
`
`Plaintiffs’ statement of issues of law which remain to be litigated is attached as
`
`Exhibit 4.
`
`10.
`
`Defendants’ statement of issues of law which remain to be litigated is attached as
`
`Exhibit 5.
`
`VI.
`
`Exhibits (L.R. 16.3(6))
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`11.
`
`The list of exhibits which may be offered by Plaintiffs, including Defendants’
`
`objections thereto, is attached as Exhibit 6.
`
`12.
`
`The list of exhibits which may be offered by Defendants, including Plaintiffs’
`
`objections thereto, is attached as Exhibit 7.
`
`13.
`
`Plaintiffs’ trial exhibits will be identified with PTX numbers. Defendants’ trial
`
`exhibits will be identified with DTX numbers.
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`14.
`
`The parties have agreed that to streamline witness examinations at trial, it would
`
`be helpful for certain exhibits to be pre-admitted. The parties wish to discuss this proposal with
`
`the Court at the Pretrial Conference and, if the Court is amenable, the parties would jointly
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`prepare for the Court an agreed-to list of exhibits for pre-admission.
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`3
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`Case 1:13-cv-01674-RGA Document 347 Filed 10/23/15 Page 9 of 22 PageID #: 9490
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`15.
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`The parties reserve the right to offer exhibits set forth on any other party’s exhibit
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`list, even if not set forth on its own exhibit list. All objections to such exhibits are preserved,
`
`regardless of whether such exhibits also appear on the objecting party’s exhibit list.
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`16.
`
`Any exhibit, once admitted at trial, may be used equally by any party for any
`
`proper purpose, subject to any limitations as to its admission into evidence. The listing of a
`
`document on a party’s list is not an admission that such document is relevant or admissible when
`
`offered by the opposing party for the purpose that the opposing party wishes to admit the
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`document. Each party reserves the right to object to the relevance or admissibility of any
`
`evidence offered by the other party, at the time such evidence is offered, in view of the specific
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`context in which such evidence is offered.
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`17.
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`The parties reserve the right to offer exhibits not set forth in their exhibit lists for
`
`purposes of impeachment or cross-examination.
`
`18.
`
`Any document not listed in Exhibits 6 to 7 above and not offered for purposes of
`
`impeachment or cross-examination, will be precluded from trial, absent good cause shown.
`
`19.
`
`The demonstratives the parties intend to use at trial do not need to be described on
`
`their respective lists of trial exhibits. Plaintiffs’ demonstratives will be identified with PDX
`
`numbers. Defendants’ demonstratives will be identified with DDX numbers.
`
`20.
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`Parties’ proposals:
`
`a. The parties shall exchange by electronic mail and/or electronic media (for large
`
`exhibits and any videos or animations to be offered) lists of any exhibits and
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`copies of any demonstrative exhibits (except for demonstrative exhibits that will
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`be created live in the courtroom) that each party intends to use in its opening
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`4
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`argument by 11:00 am one day prior to the start of trial as to both exhibits and
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`demonstratives.
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`b. The party that bears the burden of proof on an issue at trial shall produce to the
`
`opposing party by electronic mail and/or electronic media (for large exhibits and
`
`any videos or animations to be offered) the following materials with respect to
`
`that issue by 7:30 p.m. ET two calendar days before such materials are to be used
`
`at trial:
`
`i. A list of the witnesses that
`
`the party will call
`
`to testify live or by
`
`deposition on that day, in the order that that they will be called;
`
`ii. A list of the exhibits that the party will use during the direct examination
`
`of each witness identified by exhibit number;
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`iii. A copy of each demonstrative exhibit that the party will use during the
`
`direct examination of each witness (except for demonstrative exhibits that
`
`will be created live in the courtroom); and
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`iv. A good faith estimate of when the party intends to conclude its case-in-
`
`chief.
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`A party in receipt of the above materials shall inform the producing party of any
`
`objections to those materials by 7:30 p.m. ET one calendar day before such
`
`materials are to be used at trial. The parties shall meet and confer to resolve those
`
`objections before trial resumes on the following day.
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`c. The party that must rebut an issue at trial shall produce to the opposing party by
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`electronic mail and/or electronic media (for large exhibits and any videos or
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`5
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`animations to be offered) the following materials with respect to that issue by
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`7:30 p.m. ET one calendar day before such materials are to be used at trial:
`
`i. A list of the rebuttal witnesses that the party will call to testify live or by
`
`deposition on that day, in the order that they will be called;
`
`ii. A list of the exhibits that the party will use during the direct examination
`
`of each rebuttal witness identified by exhibit number; and
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`iii. A copy of each demonstrative exhibit that the party will use during the
`
`direct examination of each rebuttal witness (except for demonstrative
`
`exhibits that will be created live in the courtroom)
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`A party in receipt of the above materials shall inform the producing party of any
`
`objections to those materials by 10:30 p.m. ET one calendar day before such
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`materials are to be used at trial. The parties shall meet and confer to resolve those
`
`objections before trial resumes on the following day.
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`21.
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`Each demonstrative exhibit shall disclose to the other parties on the face of the
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`demonstrative exhibit all trial exhibits that form the basis of the demonstrative exhibit.
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`22.
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`Demonstratives to be used on cross-examination are not required to be provided
`
`to the other side in advance.
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`23.
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`Any exhibit identified on a party’s exhibit list and not objected to is deemed to be
`
`admissible and may be entered in evidence by the party, except that nothing herein shall be
`
`construed as a stipulation or admission that the document is entitled to any weight in deciding the
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`merits of the case.
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`6
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`24.
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`The parties stipulate to the authenticity of all exhibits identified on each party’s
`
`list, except where specifically indicated with specific reasons for the objection noted. Any
`
`objection to a document’s authenticity must be made in this pretrial order.
`
`25.
`
`Legible copies of United States patents and the contents of United States and
`
`patents, as well as their corresponding prosecutions, may be offered and received in evidence in
`
`lieu of certified copies thereof, subject to all other objections which might be made to the
`
`admissibility of certified copies.
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`VII.
`
`Witnesses (L.R. 16.3(7))
`
`26.
`
`Plaintiffs’ list of witnesses they may call at trial and deposition designations,
`
`along with Defendants’ objections thereto and counter-designations, are attached as Exhibits 8a-
`
`b.
`
`27.
`
`Defendants’ list of witnesses they may call at trial and deposition designations,
`
`along with Plaintiffs’ objections thereto and counter-designations, are attached as Exhibits 9a-b
`
`28.
`
`Plaintiffs’ Statement: Plaintiffs object to all designations as to any witness called
`
`live at trial, as improper designation of a witness who is not unavailable (FRCP 32(a)(4) and
`
`FRE 802); and in the event that Defendants later indicate that they will use some but not all of
`
`their designations as originally served on Sept. 3, 2015 for any particular witness, Plaintiffs
`
`reserve the right to include removed portions of Defendants’ designations in their counter-
`
`designations; and Plaintiffs reserve the right
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`to revise any of these preliminary counter-
`
`designations, by either removing from or adding to any list or by asserting additional objections,
`
`if appropriate.
`
`29.
`
`Plaintiffs’ Objection to Excessive Deposition Designations: Defendants have
`
`designated over 25 hours of deposition testimony, an amount exceeding the total time allotted to
`
`Defendants for their entire case at trial. As of this writing, Defendants have declined Plaintiffs’
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`7
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`Case 1:13-cv-01674-RGA Document 347 Filed 10/23/15 Page 13 of 22 PageID #: 9494
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`repeated requests to reduce their deposition designations. Plaintiffs reserve all rights to object to
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`Defendants’ deposition designations including based upon undue delay, waste of time, and
`
`needless presentation of cumulative evidence (Fed. R. Evid. 403), in addition to all grounds set
`
`forth in their objections to Defendants’ deposition designations.
`
`30.
`
`Defendants’ position:
`
`The parties’ proposal as set forth in paragraph 35
`
`contemplates that each party provide a list of the specific deposition counter-designations, by
`
`line and page number, of each deposition transcript that the party will use that day, including an
`
`identification of whether the designations will be played by video or read into the record two
`
`days before the testimony will be introduced at trial. Plaintiffs have provided no authority for
`
`their request that Defendants identify which designations they intend to present at trial at an
`
`earlier time. Nonetheless, Defendants are willing to provide a reduced list of deposition
`
`designations by Friday, October 23, 2003, although they reserve the right to further reduce the
`
`deposition designations to be presented at trial in accordance with the proposal set forth in
`
`paragraph 23.
`
`31.
`
`Any witness not listed in Exhibits 8a to 9b above will be precluded from trial
`
`absent good cause shown. Such good cause shall include testimony required to authenticate any
`
`documents subject to an authenticity objection.
`
`32.
`
`For good cause shown, limited supplementation of deposition designations will be
`
`permitted through the close of trial unless the opposing party will be unfairly prejudiced by such
`
`supplementation. The opposing party shall have the right to counter-designate. Supplementation
`
`to designate testimony for purposes of identification or authentication of a document shall satisfy
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`the requirement of good cause.
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`8
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`33.
`
`To the extent that deposition designations or counter-designations are admitted
`
`into evidence, they must either be played by video or read in open court. If a party opts to
`
`introduce deposition testimony, any counter-designation of that same witnesses’ testimony must
`
`be submitted in the same medium, and the testimony designated by both parties will be played or
`
`read consecutively in the sequence in which the testimony was originally given at deposition. To
`
`the extent deposition designations are read or played in open court, each party will be charged
`
`the time taken to read or play its designations, as measured by the proportion of the number of
`
`lines of testimony for its designations to the total number of lines of testimony read or played.
`
`34.
`
`The parties each reserve the right to offer deposition testimony designated by any
`
`other party (whether as a designation or a counter-designation) even if not separately listed on its
`
`own deposition designation list, subject to evidentiary objections.
`
`35.
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`Each party will provide to the other parties the name and order of any witness that
`
`it expects to call to testify by deposition testimony (regardless of burden of proof) by 7:30 p.m.
`
`two calendar days before the designations are to be used at trial, as well as: a list of the specific
`
`deposition designations, by line and page number, of each deposition transcript that the party will
`
`use that day, including an identification of whether the designations will be played by video or
`
`read into the record.
`
`36.
`
`Objections to any deposition designations shall be provided by 7:30 p.m. the day
`
`before the deposition is expected to be read or played by video. The party offering the deposition
`
`testimony designations shall then provide a “clip report” showing videotape run-times for both
`
`the deposition designations and counter-designations; and the parties shall meet and confer
`
`before trial begins the next day in an attempt to resolve any objections to the deposition
`
`designations.
`
`9
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`

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`37.
`
`Deposition testimony shall be identified by specific page and line citations both
`
`when the party that expects to use the testimony at trial identifies it to the other parties and when
`
`any of the other parties provide objections to the testimony.
`
`38.
`
`If during the revised deposition designation process, either party cancels the use
`
`of a deposition designation that it previously made, the other party may adopt that designation or
`
`a portion of that designation for its own purposes. The canceling party reserves the right to
`
`object to the use of the deposition testimony by the adopting party. Further, any counter-
`
`designation listed in the Pretrial Order may be used in response to any designation by the
`
`designating party of the same witness, and counter-designations need not be listed separately for
`
`each line of testimony for which it may be used in response.
`
`39.
`
`Any objections to any trial exhibit or demonstrative that is maintained following
`
`any meet and confer process may be taken up with the Court prior to the opening or the witness’s
`
`testimony or as otherwise directed by the Court.
`
`40.
`
`Any deposition testimony to be used at trial may be used whether or not the
`
`transcripts of such deposition have been signed and filed.
`
`41.
`
`The listing of a deposition designation does not constitute an admission as to the
`
`admissibility of the testimony, nor is it a waiver of any applicable objection.
`
`Plaintiffs’ experts’ curriculum vitae are attached as Exhibit 10a-10g.
`
`Defendants’ experts’ curriculum vitae or resumes are attached as Exhibit 11a-
`
`42.
`
`43.
`
`11f.
`
`VIII.
`
`Brief Statement of Intended Proofs (L.R. 16.3(8-9))
`
`44.
`
`In support of their claims and in addition to the facts not in dispute, Plaintiffs
`
`expect to offer the proofs set forth in Exhibit 12.
`
`10
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`DRL - EXHIBIT 1013
`DRL015
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`

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`Case 1:13-cv-01674-RGA Document 347 Filed 10/23/15 Page 16 of 22 PageID #: 9497
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`45.
`
`In support of their claims and in addition to the facts not in dispute, Defendants
`
`expects to offer the proofs set forth in Exhibit 13.
`
`IX.
`
`Amendments to Pleadings (L.R. 16.3(11))
`
`46.
`
`The parties do not offer any amendments to the pleadings at this time.
`
`X.
`
`Certification of Settlement Discussions (L.R. 16.3(12))
`
`47.
`
`Plaintiffs and Defendants Par Pharmaceutical, Inc. and IntelGenx Technologies
`
`Corp. certify that they have engaged in a good faith effort to explore the resolution of the
`
`controversy between them by settlement. A settlement has not yet been reached.
`
`48.
`
`Plaintiffs and Defendants Watson Laboratories, Inc. and Actavis Laboratories UT,
`
`Inc. certify that they have engaged in a good faith effort to explore the resolution of the
`
`controversy between them by settlement. A settlement has not yet been reached.
`
`XI.
`
`Miscellaneous Issues (L.R. 16.3(13))
`
`A.
`
`49.
`
`In Limine Motions
`
`Plaintiffs’ in limine motion, along with Defendants’ opposition thereto and
`
`Plaintiffs’ reply, are set forth in Exhibit 14a-14c.
`
`50.
`
`Defendants’ in limine motions, along with Plaintiffs’ oppositions thereto, and
`
`Defendants’ replies, are set forth in Exhibit 15a-15c, 16a-16c, 17a-17c.
`
`B.
`
`51.
`
`Expected Duration and Scope of Trial
`
`Trial is scheduled to begin on November 2, 2015 and to last 3 days or 21 hours
`
`total. Fifty percent of the time (10.5 hours) will be allotted to Plaintiffs and the remaining fifty
`
`percent (10.5 hours) to Defendants. Time that a party is presenting opening statements,
`
`examining or cross-examining witnesses, presenting evidence by reading or playing a deposition
`
`transcript, or otherwise presenting argument on behalf of a party will be counted as the time of
`
`that party.
`
`11
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`

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`52.
`
`Notwithstanding the foregoing, where an objection to the examination or cross
`
`examination of a witness takes more than 1 minute to resolve, then the full time taken to resolve
`
`the objection shall be charged to the objecting party if the objection is overruled, and the
`
`examining party if the objection is sustained.
`
`C.
`
`Type of Trial
`
`53. This is a non-jury trial.
`
`D.
`
`Order of Proof
`
`54. The parties propose that the order of the presentation of evidence will follow the burden
`
`of proof and trial shall proceed in the following order:
`
`a. Opening arguments: Plaintiffs,
`
`then Defendant Watson and Defendant Par,
`
`respectively.
`
`b. Plaintiffs’ case-in-chief on infringement against Defendant Watson.
`
`c. Upon conclusion of Plaintiffs’ case-in-chief on infringement, Defendant Watson’s
`
`response on infringement.
`
`d. Upon conclusion of the infringement issues in the case, Defendants’ case-in-chief
`
`on invalidity.
`
`e. Upon conclusion of Defendants’ case-in-chief on invalidity, Plaintiffs’ response
`
`on invalidity (including secondary considerations of non-obviousness).
`
`f. Defendants’ rebuttal
`
`to Plaintiffs’ case on secondary considerations of non-
`
`obviousness.
`
`g. Each party may offer additional rebuttal on issues where that party has the burden
`
`of proof upon application to the Court at trial.
`
`12
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`DRL - EXHIBIT 1013
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`

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`Case 1:13-cv-01674-RGA Document 347 Filed 10/23/15 Page 18 of 22 PageID #: 9499
`
`E.
`
`55.
`
`Protective Order and Corporate Representatives in Courtroom
`
`The Court has entered a Stipulated Protective Order (D.I. 74) (the “Protective
`
`Order”) to protect “trade secrets or other confidential research, development, manufacture,
`
`regulatory, financial, marketing or other competitive information.” The Protective Order
`
`provides that the parties will “meet and confer in good faith prior to trial to establish procedures
`
`concerning the use of material designated [under the protective order] at trial.”
`
`56.
`
`The presentation of evidence at trial will take place in open court, unless a party
`
`requests and the Court grants the request to close the Courtroom during presentation of certain
`
`portions of the evidence.
`
`57.
`
`The parties have agreed that the individuals designated as In-House Counsel in
`
`Paragraph 6.1(a) of the Protective Order, or other In-House Counsel agreed to by the parties,
`
`may attend any closed portion of the trial, except, however, that each party has the right to
`
`exclude the other parties’ In-House Counsel from any portion of trial concerning the party’s own
`
`information that
`
`it has previously designated “HIGHLY CONFIDENTIAL-OUTSIDE
`
`COUNSEL’S EYES ONLY” under the Protective Order.
`
`XII.
`
`Order To Control Course of Action
`
`58.
`
`This order shall control the subsequent course of the action, unless modified by
`
`the Court to prevent manifest injustice.
`
`13
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`DRL - EXHIBIT 1013
`DRL018
`
`

`
`Case 1:13-cv-01674-RGA Document 347 Filed 10/23/15 Page 19 of 22 PageID #: 9500
`
`Dated: October 16, 2015
`Redacted Version: October 23, 2015
`
`Respectfully submitted,
`
`/s/ Mary W. Bourke
`Mary W. Bourke (#2356)
`Dana K. Severance (#4869)
`Daniel M. Attaway (#5130)
`WOMBLE CARLYLE SANDRIDGE & RICE, LLP
`222 Delaware Avenue, Suite 1501
`Wilmington, DE 19801
`Telephone: (302) 252-4320
`Facsimile: (302) 252-4330
`mbourke@wcsr.com
`dseverance@wcsr.com
`dattaway@wcsr.com
`
`Counsel for Plaintiffs
`
`OF COUNSEL:
`
`Daniel A. Ladow
`James M. Bollinger
`Timothy P. Heaton
`J. Magnus Essunger
`TROUTMAN SANDERS LLP
`875 Third Avenue
`New York, NY 10022
`Telephone: (212) 704-6000
`Facsimile: (212) 704-6288
`Daniel.ladow@troutmansanders.com
`James.bollinger@troutmansanders.com
`Timothy.heaton@troutmansanders.com
`Magnus.essunger@troutmansanders.com
`
`Charanjit Brahma
`TROUTMAN SANDERS LLP
`580 California Street
`Suite 1100
`San Francisco, CA 94104
`Telephone: (415) 477-5700
`Facsimile: (415) 477-5710
`charanjit.brahma@troutmansanders.com
`
`/s/ Steven J. Fineman
`Steven J. Fineman (#4025)
`Katharine C. Lester (#5629)
`RICHARDS LAYTON & FINGER, P.A.
`One Rodney Square
`920 N. King Street
`Wilmington, DE 19807
`Telephone: (302) 651-7700
`Facsimile: (302) 651-7701
`fineman@rlf.com
`lester@rlf.com
`
`Counsel for Defendants Par Pharmaceutical,
`Inc. and IntelGenx Technologies Corp.
`
`OF COUNSEL:
`
`Daniel G. Brown
`LATHAM & WATKINS LLP
`885 Third Avenue
`New York, NY 10022
`Telephone: (212) 906-1200
`Facsimile: (