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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Omni MedSci, Inc.,
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`v.
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`Apple Inc.,
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`Plaintiff/Counter-Defendant,
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`Defendant/Counter-Claimant.
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`Case No. 2:18-cv-134-RWS
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`JURY TRIAL DEMANDED
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`AMEND DOCKET CONTROL ORDER
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`It is ORDERED that the following schedule of deadlines is in effect until further order of
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`this Court:
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`Deadline
`3 DAYS after
`conclusion of Trial
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`February 18, 2020
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`February 18, 2020
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`February 4, 2020
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`Event
`Parties to file Motion to Seal Trial Exhibits, if they wish to seal any
`highly confidential exhibits.
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`EXHIBITS: See Order Regarding Exhibits below.
`9:00 a.m. JURY TRIAL before Judge Robert W. Schroeder III,
`Marshall, Texas.
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`For planning purposes, parties shall be prepared to start the evidentiary
`phase of trial immediately following jury selection.
`9:00 a.m. JURY SELECTION before Judge Robert W. Schroeder
`III, Marshall, Texas.
`10:00 a.m. PRETRIAL CONFERENCE before Judge Robert W.
`Schroeder III, Texarkana, Texas.
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`Discuss trial logistics and voir dire procedure. Resolve any pending
`motions or objections.
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`Lead trial counsel must attend the pretrial conference.
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`OMNI 2114
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`Case 2:18-cv-00134-RWS Document 142 Filed 03/29/19 Page 2 of 8 PageID #: 3084
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`Deadline
`January 28, 2020
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`Event
`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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`January 28, 2020
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`January 21, 2020
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`January 21, 2020
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`January 14, 2020
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`January 7, 2020
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`January 7, 2020
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`File Responses to Motions in Limine.
`File Motions in Limine and pretrial objections.
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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.
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`Parties shall use the pretrial order form on Judge Schroeder’s website.
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`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.
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`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 to Deposition
`Testimony.
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`For rebuttal designations, cross examination line and page numbers to be
`included.
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`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.
`December 19, 2019 Exchange Pretrial Disclosures (Witness List, Deposition Designations,
`and Exhibit List) by the Party with the Burden of Proof.
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`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.
`10:00 a.m. HEARING ON ANY REMAINING DISPOSITIVE
`MOTIONS (INCLUDING DAUBERT MOTIONS) before Judge
`Robert W. Schroeder III, Texarkana, Texas.
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`October 15, 2019
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`Case 2:18-cv-00134-RWS Document 142 Filed 03/29/19 Page 3 of 8 PageID #: 3085
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`Deadline
`July 26, 2019
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`July 19, 2019
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`July 12, 2019
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`July 5, 2019
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`June 18, 2019
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`May 21, 2019
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`May 21, 2019
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`May 14, 2019
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`Event
`Any Remaining Dispositive Motions due from all parties and any
`other motions that may require a hearing (including Daubert
`motions).
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`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.
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`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.
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`Respond to Amended Pleadings.
`Parties to Identify Rebuttal Trial Witnesses.
`Parties to Identify Trial Witnesses; Amend Pleadings (after Markman
`Hearing).
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`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.
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`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.
`Fact discovery deadline.
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`Case 2:18-cv-00134-RWS Document 142 Filed 03/29/19 Page 4 of 8 PageID #: 3086
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`Deadline
`April 16, 2019
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`Parties’ estimated
`number of trial days
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`Event
`Final Election of Asserted Claims.
`8-10 days
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`In the event that any of these dates fall on a weekend or Court holiday, the deadline is
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`modified to be the next Court business day.
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`
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`The parties are directed to Local Rule CV-7(d), which provides in part that “[a] party’s
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`failure to oppose a motion in the manner prescribed herein creates a presumption that the party
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`does not controvert the facts set out by movant and has no evidence to offer in opposition to the
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`motion.”
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`A party may request an oral hearing on a motion filed with the Court. Any such request
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`shall be included in the text or in a footnote on the first page of the motion or any responsive
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`pleading thereto. The Court does not hold telephonic hearings absent unusual circumstances.
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`Other Limitations
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`(a)
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`The following excuses will not warrant a continuance or justify a failure to comply
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`with the discovery deadline:
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`(i) The fact that there are motions for summary judgment or motions to dismiss
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`pending;
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`(ii) The fact that one or more of the attorneys is set for trial in another court on the
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`same day, unless the other setting was made prior to the date of this order or
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`was made as a special provision for the parties in the other case;
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`(iii) The failure to complete discovery prior to trial, unless the parties can
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`demonstrate that it was impossible to complete discovery despite their good
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`faith effort to do so.
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`(b)
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`Amendments to the Docket Control Order (“DCO”): Any motion to alter any date on
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`the DCO shall take the form of a motion to amend the DCO. The motion shall include
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`a chart in the format of the DCO that lists all of the remaining dates in one column (as
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`above) and the proposed changes to each date in an additional adjacent column (if there
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`is no change for a date the proposed date column should remain blank or indicate that
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`it is unchanged). The motion to amend the DCO shall also include a proposed DCO in
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`traditional two-column format that incorporates the requested changes and that also
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`lists all remaining dates. In other words, the DCO in the proposed order should be
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`complete such that one can clearly see all the remaining deadlines rather than needing
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`to also refer to an earlier version of the DCO.
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`(c)
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`Indefiniteness: In lieu of early motions for summary judgment, the parties are directed
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`to include any arguments related to the issue of indefiniteness in their Markman
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`briefing, subject to the local rules’ normal page limits.
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`(d) Motions in Limine: Each side is limited to one (1) motion in limine addressing no more
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`than ten (10) disputed issues. In addition, the parties may file a joint motion in limine
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`addressing any agreed issues. The Court views motions in limine as appropriate for
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`those things that will create the proverbial “skunk in the jury box,” e.g., that, if
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`mentioned in front of the jury before an evidentiary ruling can be made, would be so
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`prejudicial that the Court could not alleviate the prejudice with an appropriate
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`instruction. Rulings on motions in limine do not exclude evidence, but prohibit the
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`party from offering the disputed testimony prior to obtaining an evidentiary ruling
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`during trial.
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`(e)
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`Exhibits: Each side is limited to designating 250 exhibits for trial absent a showing of
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`good cause. The parties shall use the exhibit list sample form on Judge Schroeder’s
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`website.
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`(f)
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`Deposition Designations: Each side is limited to designating no more than ten (10)
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`hours of deposition testimony for use at trial absent a showing of good cause. As trial
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`approaches, if either side needs to designate more than ten (10) hours, the party may
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`file a motion for leave and show good cause. All depositions to be read into evidence
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`as part of the parties’ case-in-chief shall be EDITED so as to exclude all unnecessary,
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`repetitious, and irrelevant testimony; ONLY those portions which are relevant to the
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`issues in controversy shall be read into evidence.
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`(g) Witness Lists: The parties shall use the sample form on Judge Schroeder’s website.
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`ORDER REGARDING EXHIBITS, EXHIBIT LISTS AND WITNESS LISTS:
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`A.
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`On the first day of trial, each party is required to have:
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`(1) One copy of their respective original exhibits on hand. Each exhibit shall be
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`properly labeled with the following information: Identified as either Plaintiff’s
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`or Defendant’s Exhibit, the Exhibit Number and the Case Number.
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`(2) Three hard copies of each party’s exhibit list and witness list on hand.
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`(3) One copy of all exhibits on USB Flash Drive(s) or portable hard drive(s). This
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`shall be tendered to the Courtroom Deputy at the beginning of trial.
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`(4) One copy of all expert reports on CD. This shall be tendered to the Courtroom
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`Deputy at the beginning of trial.
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`B.
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`The parties shall follow the process below to admit exhibits.
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`On the first day of trial, each party shall tender a preadmitted list of exhibits it plans to admit into
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`evidence. This list shall include all exhibits which are NOT objected to or to which the Court has
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`already overruled an objection. To the extent there are exhibits with outstanding objections for
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`which the parties need a ruling from the Court, those exhibits should be separately included on the
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`list and designated accordingly to reflect a pending objection. Parties shall entitle the list
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`“[Plaintiff’s/Defendant’s] List of Preadmitted Exhibits.” If, during the course of the day’s
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`testimony, a party wishes to offer an objected exhibit into evidence, the party may move for
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`admission at the time it wishes to use that exhibit with a witness. The Court will then hear the
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`opposing party’s objection and will rule on the objection at that time.
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`(1) On each subsequent day of trial, the Court will commence by formally admitting all of
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`the exhibits that were either unobjected to or allowed over objection and used during
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`the previous day’s trial. The Court will ask for these exhibits to be read into the record
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`and formally admitted into evidence at the beginning of that trial day. These will be the
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`exhibits deemed admitted at trial. The parties shall keep a separate running list of all
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`exhibits admitted throughout the course of trial.
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`(2) At the conclusion of evidence, each party shall read into the record any exhibit that was
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`used but not previously admitted during the course of trial and then tender its final list
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`of every admitted exhibit, entitled “[Plaintiff’s/Defendant’s] Final List of All Admitted
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`Exhibits.” To the extent there are exhibits that were not admitted during the course of
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`trial, but for which there is agreement that they should be provided to the jury, the
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`parties must inform the Court of those exhibits at the conclusion of evidence. The Court
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`will then determine whether those exhibits will be allowed into the jury room for
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`deliberations.
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`C.
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`At the conclusion of evidence, each party shall be responsible for pulling those exhibits
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`admitted at trial and shall tender those to the Courtroom Deputy, who will verify the exhibits and
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`tender them to the jury for their deliberations. One representative from each side shall meet with
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`the Courtroom Deputy to verify the exhibit list.
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`D.
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`At the conclusion of trial, all boxes of exhibits shall be returned to the respective parties
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`and the parties are instructed to remove these exhibits from the courtroom.
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`E.
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`Within five business days of the conclusion of trial, each party shall submit to the
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`Courtroom Deputy:
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`(1)
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`(2)
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`A Final Exhibit List of Exhibits Admitted During Trial in Word format.
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`Two CD(s) containing admitted unsealed trial exhibits in PDF format. If the Court
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`ordered any exhibits sealed during trial, the Sealed Exhibits shall be submitted on a separate CD.
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`If tangible or over-sized exhibits were admitted, such exhibits shall be substituted with a
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`photograph in PDF format.
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`(3)
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`A disk containing the transcripts of Video Depositions played during trial, along
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`with a copy of the actual video deposition.
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`.
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`____________________________________
`ROBERT W. SCHROEDER III
`UNITED STATES DISTRICT JUDGE
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`So ORDERED and SIGNED this 29th day of March, 2019.
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`OMNI 2114
`IPR 2019-00916
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