`
`Ex. 1005
`
`Docket Control Order for Uniloc USA,
`
`Inc. v. BitDefender LLC et al., Case No.
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`2:16-cv-00394-RWS, E.D. Tex. (“Docket
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`Control Order”)
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`Case 2:16-cv-00393-RWS Document 73 Filed 11/18/16 Page 1 of 9 PageID #: 374
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`UNILOC USA, INC., et al,
`Plaintiffs,
`
`v.
`
`AVG TECHNOLOGIES, INC.,
`BITDEFENDER LLC,
`
`GOG LTD,
`
`PIRIFORM, INC.,
`
`UBISOFT, INC.,
`
`VALVE CORPORATION,
`KASPERSKY LAB, INC.,
`
`SQUARE ENIX, INC.,
`Defendants.
`
`§
`§
`§ Case No. 2:16-cv-00393-RWS
`§
`LEAD CASE
`§
`§
`§ Case No. 2:16-cv-00394-RWS
`
`§ Case No. 2:16-cv-00395-RWS
`
`§ Case No. 2:16-cv-00396-RWS
`
`§ Case No. 2:16-cv-00397-RWS
`
`§ Case No. 2:16-cv-00398-RWS
`§ Case No. 2:16-cv-00871-RWS
`
`§ Case No. 2:16-cv-00872-RWS
`
`DOCKET CONTROL ORDER
`
`It is hereby ORDERED that the following schedule of deadlines is in effect until further
`
`order of this Court:
`
`3 DAYS after
`conclusion of Trial
`
`Parties to file Motion to Seal Trial Exhibits, if they wish to seal any
`highly confidential exhibits.
`
`Trial Date
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`April 16, 2018
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`April 16, 2018
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`April 3, 2018
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`March 27, 2018
`
`EXHIBITS: See Order Regarding Exhibits below.
`
`9:00 a.m. JURY TRIAL before Judge Robert W. Schroeder, III,
`Marshall, Texas.
`
`9:00 a.m. JURY SELECTION before Judge Robert W. Schroeder,
`III, Marshall, Texas.
`
`9:00 a.m. PRETRIAL CONFERENCE before Judge Robert W.
`Schroeder, III, Texarkana, Texas.
`
`Discuss trial logistics and voir dire procedure. Resolve any pending
`motions or objections.
`Lead trial counsel must attend the pretrial conference.
`
`File a Notice of Time Requested for (1) voir dire, (2) opening
`statements, (3) direct and cross examinations, and (4) closing
`arguments.
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`March 27, 2018
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`Responses to Motions in Limine due.
`
`
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`Case 2:16-cv-00393-RWS Document 73 Filed 11/18/16 Page 2 of 9 PageID #: 375
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`March 20, 2018
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`File Motions in Limine and pretrial objections.
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`March 20, 2018
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`March 13, 2018
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`March 6, 2018
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`March 6, 2018
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`February 20, 2018
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`February 13, 2018
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`The parties are ORDERED to meet and confer to resolve any disputes
`before filing any motion in limine or objection to pretrial disclosures.
`File Joint Final Pretrial Order, Joint Proposed Jury Instructions
`with citation to authority and Form of the Verdict for jury trials.
`
`Parties shall use the pretrial order form on Judge Schroeder’s website.
`
`Proposed Findings of Fact and Conclusions of Law with citation to
`authority for issues tried to the bench.
`
`Exchange Objections to Rebuttal Deposition Testimony.
`
`Notice of Request for Daily Transcript or Real Time Reporting of
`Court Proceedings due.
`
`If a daily transcript or real time reporting of court proceedings is
`requested for trial or hearings, the party or parties making said request
`shall file a notice with the Court.
`Exchange Rebuttal Designations and Objections
`Testimony.
`
`to Deposition
`
`For rebuttal designations, cross examination line and page numbers to be
`included.
`
`In video depositions, each party is responsible for preparation of the final
`edited video in accordance with their parties’ designations and the
`Court’s rulings on objections.
`Exchange Pretrial Disclosures (Witness List, Deposition Designations,
`and Exhibit List) by the Party with the Burden of Proof.
`
`Video and Stenographic Deposition Designation due. Each party who
`proposes to offer deposition testimony shall serve a disclosure
`identifying the line and page numbers to be offered.
`9:00 a.m. HEARING ON ANY REMAINING DISPOSITIVE
`MOTIONS (INCLUDING DAUBERT MOTIONS) before Judge
`Robert W. Schroeder, III, Texarkana, Texas.
`
`
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`Case 2:16-cv-00393-RWS Document 73 Filed 11/18/16 Page 3 of 9 PageID #: 376
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`November 14, 2017
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`Any Remaining Dispositive Motions due from all parties and any
`other motions that may require a hearing (including Daubert
`motions).
`
`Motions shall comply with Local Rule CV-56 and Local Rule CV-7.
`Motions to extend page limits will only be granted in exceptional
`circumstances. Exceptional circumstances require more than agreement
`among the parties.
`
`For each motion filed, the moving party shall provide the Court with one
`(1) copy of the completed briefing (opening motion, response, reply, and
`if applicable, surreply), excluding exhibits, in a three-ring binder
`appropriately tabbed. All documents SHALL be double-sided and must
`include the CM/ECF header. These copies shall be delivered to Judge
`Schroeder’s chambers in Texarkana as soon as briefing has completed.
`
`Respond to Amended Pleadings.
`
`Parties to Identify Rebuttal Trial Witnesses.
`
`Parties to Identify Trial Witnesses; Amend Pleadings (after Markman
`Hearing).
`
`It is not necessary to file a Motion for Leave to Amend before the
`deadline to amend pleadings. It is necessary to file a Motion for Leave
`to Amend after the deadline. However, except as provided in Patent
`Rule 3-6, if the amendment would affect infringement contentions or
`invalidity contentions, a motion must be made pursuant to Patent Rule 3-
`6 irrespective of whether the amendment is made prior to this deadline.
`
`Expert Discovery Deadline.
`
`Parties designate rebuttal expert witnesses (non-construction issues),
`rebuttal expert witness reports due. Refer to Local Rules for required
`information.
`
`If, without agreement, a party serves a supplemental expert report after
`the rebuttal expert report deadline has passed, the serving party must file
`notice with the Court stating service has occurred and the reason why a
`supplemental report is necessary under the circumstances.
`
`Final Election of Asserted Prior Art.
`
`Parties with burden of proof designate expert witnesses (non-
`construction issues). Expert witness reports due. Refer to Local Rules
`for required information.
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`November 10, 2017
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`November 3, 2017
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`November 3, 2017
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`October 13, 2017
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`September 13, 2017
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`September 13, 2017
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`September 8, 2017
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`Fact discovery deadline.
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`August 15, 2017
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`Final Election of Asserted Claims.
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`
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`Case 2:16-cv-00393-RWS Document 73 Filed 11/18/16 Page 4 of 9 PageID #: 377
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`July 6, 2017
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`June 15, 2017
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`Comply with P.R. 3-7. (Opinion of Counsel Defenses)
`9:00 a.m. Markman Hearing before Judge Robert W.
`Schroeder, III, Texarkana, Texas.
`
`June 1, 2017
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`P.R. 4-5(d) Chart due.
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`May 26, 2017
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`May 19, 2017
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`April 28, 2017
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`The parties are to meet and confer and jointly submit a claim
`construction chart on computer disk in Word format listing each party’s
`proposed construction for each of the terms to be addressed at the
`Markman hearing, including any terms purported to be indefinite. The
`parties should prioritize and list the terms in order of most importance;
`the Court will address the terms in the prioritized order presented in the
`claim construction chart.
`Parties to file a notice with the Court stating the estimated amount of
`time requested for the Markman Hearing. The Court will notify the
`parties if it is unable to accommodate this request.
`
`Comply with P.R. 4-5(c) - Reply brief and supporting evidence
`regarding claim construction due. Plaintiff is to provide the Court with
`one (1) copy of the completed Markman briefing in its entirety (opening
`brief, response, and reply) and exhibits
`in a three-ring binder
`appropriately tabbed. All documents SHALL be double-sided and must
`include the CM/ECF header. These copies shall be delivered to Judge
`Schroeder’s chambers in Texarkana as soon as briefing has completed.
`
`If a technical advisor has been appointed the moving party is to provide
`their Markman brief on disk or CD along with a hard copy, tabbed and
`bound with exhibits to the advisor.
`Comply with P.R. 4-5(b) - Responsive claim construction brief and
`supporting evidence due.
`Comply with P.R. 4-5(a) - The party claiming patent infringement shall
`serve and file an opening brief and any evidence supporting its claim
`construction.
`
`Briefing shall comply with Local Rules CV-7 and 56 and Patent Rule 4-
`5(e). Motions to extend page limits will only be granted in exceptional
`circumstances. Exceptional circumstances require more than joint
`agreement among the parties.
`
`Tutorials due. Deadline for parties, if they desire, to provide Court with
`tutorials concerning technology involved in patent(s). The parties shall
`submit one (1) copy of their tutorials to the Court. If a technical advisor
`has been appointed, each party that provides a tutorial shall provide a
`copy to the advisor.
`
`Preliminary Election of Asserted Prior Art.
`
`
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`Case 2:16-cv-00393-RWS Document 73 Filed 11/18/16 Page 5 of 9 PageID #: 378
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`May 5, 2017
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`April 21, 2017
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`April 14, 2017
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`March 31, 2017
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`March 24, 2017
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`March 3, 2017
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`Proposed Technical Advisors due if one has not already been appointed.
`Parties to provide name, address, phone number, and curriculum vitae
`for up to three agreed technical advisors and information regarding the
`nominees’ availability for Markman hearing or a statement that an
`agreement could not be reached. If the parties cannot agree on a
`technical advisor, they shall not submit any proposed technical advisors
`to the Court. If the parties feel a technical advisor is unnecessary, they
`shall alert the Court at this time.
`Discovery Deadline - Claim Construction Issues.
`
`Preliminary Election of Asserted Claims.
`
`Respond to Amended Pleadings.
`
`Amended Pleadings (pre-claim construction) due from all parties,
`including inequitable conduct allegations.
`
`It is not necessary to file a Motion for Leave to Amend before the
`deadline to amend pleadings. It is necessary to file a Motion for Leave
`to Amend after the deadline. However, if the amendment would affect
`infringement contentions or invalidity contentions, a motion must be
`made pursuant to Patent Rule 3-6(b) irrespective of whether the
`amendment is made prior to this deadline.
`Comply with P.R. 4-3 - Filing of Joint Claim Construction and
`Prehearing Statement.
`
`In the P.R. 4-3 filing, the parties shall list the most significant terms
`according to the parties’ priorities, which were agreed upon during the
`P.R. 4-2 meet and confer, indicating which of those terms will be case or
`claim dispositive. A maximum of 10 terms will be construed, unless
`parties have received other instruction from the Court. If the parties
`cannot agree to the most important 10 terms, the parties shall identify the
`terms that were agreed upon and then divide the remainder evenly
`between Plaintiff(s) and Defendant(s).
`
`The nonmoving party subject to an indefiniteness challenge must provide
`a preliminary identification of any expert testimony it intends to rely on
`in its response to the moving party’s indefiniteness challenge. The
`nonmoving party shall also provide a brief description of that witness’
`proposed testimony.
`
`Comply with P.R. 4-2 - Exchange of Preliminary Claim Constructions
`and Extrinsic Evidence. Privilege Logs to be exchanged by parties (or a
`letter to the Court stating that there are no disputes as to claims of
`privileged documents).
`
`February 10, 2017
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`Comply with P.R. 4-1 - Exchange Proposed Terms and Claim Elements
`for Construction.
`
`
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`Case 2:16-cv-00393-RWS Document 73 Filed 11/18/16 Page 6 of 9 PageID #: 379
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`January 30, 2017
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`December 16, 2016
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`November 28, 2016
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`November 21, 2016
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`November 17, 2016
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`November 14, 2016
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`November 12, 2016
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`Comply with P.R. 3-3 and 3-4 - Invalidity Contentions due. Thereafter,
`except as provided in Patent Rule 3-6(a), it is necessary to obtain leave
`of Court to add and/or amend invalidity contentions, pursuant to Patent
`Rule 3-6(b).
`
`Defendant shall assert any counterclaims. After this deadline, leave of
`Court must be obtained to assert any counterclaims.
`*Comply with Paragraphs 1 & 3 of the Discovery Order (Initial
`and Additional Disclosures)
`Defendant shall join additional parties. It is not necessary to file a
`motion to join additional parties prior to this date. Thereafter, it is
`necessary to obtain leave of Court to join additional parties.
`File Notice of Mediator
`
`Parties are encouraged, but not required, to mediate cases. The parties
`shall jointly file a notice that identifies an agreed upon mediator or that
`indicates that no agreement to mediate was reached. The notice shall
`include a proposed order appointing the mediator, if any, and a deadline
`for the parties to attend mediation. The parties shall confirm the
`mediator’s availability. If the parties do not reach agreement on a
`mediator, the Court will appoint one if requested.
`Comply with P.R. 3-1 and P.R. 3-2 - Disclosure of Asserted Claims and
`Infringement Contentions due. Thereafter, except as provided in Patent
`Rule 3-6(a), it is necessary to obtain leave of Court to add and/or amend
`infringement contentions, pursuant to Patent Rule 3-6(b).
`
`Plaintiff shall join additional parties. It is not necessary to file a motion
`to join additional parties prior to this date. Thereafter, it is necessary to
`obtain leave of Court to join additional parties.
`
`Plaintiff shall add new patents and/or claims for patents-in-suit. It is not
`necessary to file a motion to add additional patents or claims prior to this
`date. Thereafter, it is necessary to obtain leave of Court to add patents or
`claims.
`File Proposed Docket Control Order, Proposed Discovery Order, and
`Proposed Protective Order The proposed orders shall each be separately
`filed as a joint motion with the caption indicating whether or not the
`proposed order is opposed in any part. Any disputes should be redlined
`and each party’s position explained.
`File Notice identifying the attorneys who will attend the Scheduling
`Conference Each party must have an attorney present with authority to
`resolve any scheduling disputes or proposed changes.
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`No. of trial days
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`5 days for each Defendant
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`
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`Case 2:16-cv-00393-RWS Document 73 Filed 11/18/16 Page 7 of 9 PageID #: 380
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`In the event that any of these dates fall on a weekend or Court holiday, the deadline is
`modified to be the next Court business day.
`
`The parties are directed to Local Rule CV-7(d), which provides in part that “[i]n the event
`a party fails to oppose a motion in the manner prescribed herein the Court will assume that the
`party has no opposition.”
`
`Other Limitations
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`(a)
`
`(ii)
`
`(iii)
`
`The following excuses will not warrant a continuance or justify a failure to comply
`with the discovery deadline:
`(i)
`The fact that there are motions for summary judgment or motions to dismiss
`pending;
`The fact that one or more of the attorneys is set for trial in another court on the
`same day, unless the other setting was made prior to the date of this order or
`was made as a special provision for the parties in the other case;
`The failure to complete discovery prior to trial, unless the parties can
`demonstrate that it was impossible to complete discovery despite their good
`faith effort to do so.
`Amendments to the Docket Control Order (“DCO”): Any motion to alter any date on
`the DCO shall take the form of a motion to amend the DCO. The motion shall
`include a chart in the format of the DCO that lists all of the remaining dates in one
`column (as above) and the proposed changes to each date in an additional adjacent
`column (if there is no change for a date the proposed date column should remain
`blank or indicate that it is unchanged). The motion to amend the DCO shall also
`include a proposed DCO in traditional two-column format that incorporates the
`requested changes and that also lists all remaining dates. In other words, the DCO in
`the proposed order should be complete such that one can clearly see all the remaining
`deadlines rather than needing to also refer to an earlier version of the DCO.
`Indefiniteness: In lieu of early motions for summary judgment, the parties are
`directed to include any arguments related to the issue of indefiniteness in their
`Markman briefing, subject to the local rules’ normal page limits.
`(d) Motions in Limine: Each side is limited to one (1) motion in limine addressing no
`more than ten (10) disputed issues. In addition, the parties may file a joint motion in
`limine addressing any agreed issues. The Court views motions in limine as
`appropriate for those things that will create a proverbial “skunk in the jury box,” e.g.,
`that, if mentioned in front of the jury before an evidentiary ruling can be made, would
`be so prejudicial that the Court could not alleviate the prejudice with an appropriate
`instruction. Rulings on motions in limine do not exclude evidence, but prohibit the
`party from offering the disputed testimony prior to obtaining an evidentiary ruling
`during trial.
`Exhibits: Each side is limited to designating 250 exhibits for trial absent a showing of
`good cause. The parties shall use the exhibit list sample form on Judge Schroeder’s
`website.
`
`(b)
`
`(c)
`
`(e)
`
`
`
`Case 2:16-cv-00393-RWS Document 73 Filed 11/18/16 Page 8 of 9 PageID #: 381
`
`(f)
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`Deposition Designations: Each side is limited to designating no more than ten (10)
`hours of deposition testimony for use at trial absent a showing of good cause. As trial
`approaches, if either side needs to designate more than ten (10) hours, the party may
`file a motion for leave and show good cause. All depositions to be read into evidence
`as part of the parties’ case-in-chief shall be EDITED so as to exclude all unnecessary,
`repetitious, and irrelevant testimony; ONLY those portions which are relevant to the
`issues in controversy shall be read into evidence.
`(g) Witness Lists: The parties shall use the sample form on Judge Schroeder’s website.
`
`ORDER REGARDING EXHIBITS, EXHIBIT LISTS AND WITNESS LISTS:
`
`A.
`
`On the first day of trial, each party is required to have:
`
`(1) One copy of their respective original exhibits on hand. Each exhibit shall be
`properly labeled with the following information: Identified as either Plaintiff’s
`or Defendant’s Exhibit, the Exhibit Number and the Case Number.
`(2) Three hard copies of each party’s exhibit list and witness list on hand.
`(3) One copy of all exhibits on USB Flash Drive(s) or portable hard drive(s). This
`shall be tendered to the Courtroom Deputy at the beginning of trial.
`
`B.
`
`The parties shall follow the process below to admit exhibits.
`(1) On the first day of trial, each party shall tender an “offered” list of exhibits it plans to
`admit into evidence that day which are NOT objected to, and read that list into the
`record. Parties shall entitle the list “[Plaintiff’s/Defendant’s] Exhibits Offered on
`[DATE].” If, during the course of the day’s testimony, a party wishes to offer an
`objected exhibit into evidence, the party may move for admission at the time it wishes
`to use that exhibit with a witness. The Court will then hear the opposing party’s
`objection and will rule on the objection at that time.
`(2) On each subsequent day of trial, parties shall first read into the record any exhibits
`that were admitted over objection from the previous day. The parties shall next
`tender an “offered” list of any additional exhibits NOT objected to that it plans to
`admit that day, and read that list into the record. The list shall be entitled
`“[Plaintiff’s/Defendant’s] Exhibits Offered on [DATE].” Finally, the parties shall
`tender a separate running list of all previously admitted exhibits throughout the course
`of trial entitled “[Plaintiff’s/Defendant’s] Exhibits Previously Admitted through
`[DATE of the most recently completed trial day].”
`(3) At the conclusion of evidence, each party shall read any exhibit that was admitted
`over objection that day into the record and then tender its final list of every admitted
`exhibit, entitled “[Plaintiff’s/Defendant’s] Final List of All Admitted Exhibits.”
`
`At the conclusion of evidence, each party shall be responsible for pulling those exhibits
`C.
`admitted at trial, whether used or not, and tender those to the Courtroom Deputy, who will verify
`the exhibits and tender them to the jury for their deliberations. One representative from each
`side shall meet with the Courtroom Deputy to verify the exhibit list.
`
`
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`Case 2:16-cv-00393-RWS Document 73 Filed 11/18/16 Page 9 of 9 PageID #: 382
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`At the conclusion of trial, all boxes of exhibits shall be returned to the respective parties
`D.
`and the parties are instructed to remove these exhibits from the courtroom.
`
`Within five business days of the conclusion of trial, each party shall submit to the
`E.
`Courtroom Deputy:
`
`A Final Exhibit List of Exhibits Admitted During Trial in Word format.
`(1)
`Two CD(s) containing admitted unsealed trial exhibits in PDF format. If the
`(2)
`Court ordered any exhibits sealed during trial, the Sealed Exhibits shall be submitted on a
`separate CD. If tangible or over-sized exhibits were admitted, such exhibits shall be substituted
`with a photograph in PDF format.
`(3)
`A disk containing the transcripts of Video Depositions played during trial, along
`with a copy of the actual video deposition.
`
`.
`
`
`
`____________________________________
`ROBERT W. SCHROEDER III
`UNITED STATES DISTRICT JUDGE
`
`SIGNED this 18th day of November, 2016.
`
`