`FOR THE EASTERN DISTRICT OF TEXAS
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`STANDING ORDER REGARDING PRETRIAL PROCEDURES
`IN CIVIL CASES ASSIGNED TO CHIEF DISTRICT JUDGE RODNEY GILSTRAP
`DURING THE PRESENT COVID-19 PANDEMIC
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`WHEREAS, the novel coronavirus COVID-19 pandemic requires timely and appropriately
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`tailored measures to arrest the spread of the infection, prevent harm to vulnerable persons, and
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`protect critical medical and emergency infrastructure;
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`WHEREAS, avoiding travel and in-person contact are known to be effective measures
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`against the spread of COVID-19; and
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`WHEREAS, the Court finds that, with the assistance of modern technology, civil cases can
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`be litigated largely without travel or in-person contact between attorneys, witnesses, experts, Court
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`personnel, and other case participants;
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`NOW, THEREFORE, IT IS ORDERED THAT:
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`A.
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`1.
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`Guiding Principles
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`The health of impacted persons—Court staff, witnesses, lawyers, and all others
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`involved in cases—is paramount. While the Court wants all parties to prioritize health concerns
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`above all other considerations, the Court is also mindful of the vital need to keep cases moving.
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`2.
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`Trying to keep cases moving forward while prioritizing the health of individuals
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`will sometimes lead to unconventional practices and accommodations that would not normally be
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`accepted as appropriate. As one example, the pandemic conditions may require production of
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`computer source code in ways that are not consistent with the producing party’s normal security
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`protocols. As another example, depositions of witnesses may need to be conducted remotely with
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`all participants separated, which, especially for first-time witnesses unfamiliar with the process,
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`may be an uncomfortable experience.
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`3.
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`For all such unconventional practices used during this health emergency, those
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`practices may not be cited as appropriate practices to follow once the health emergency has passed.
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`If such practices were citable, that would discourage parties from agreeing to those approaches
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`during the health emergency. The Court wants exactly the opposite: for parties to be willing to
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`make special accommodations during the health emergency, confident that those special
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`accommodations will not be used against them in the future.
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`4.
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`In the absence of a particular directive from the Court, attorneys should follow
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`applicable local, state, and federal guidelines. In general, travel should be avoided during the
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`pandemic—and this includes travel for hearings, depositions, and other litigation events. Likewise,
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`during the pandemic parties should avoid gatherings where appropriate social distancing is not
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`practicable—such as in-person depositions.
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`B.
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`5.
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`Case Scheduling
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`The Court is open to requests for extensions to accommodate the COVID-19-
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`related needs of persons involved in cases before the Court. Because the state of the COVID-19
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`emergency remains fluid and evolves week-to-week, the Court will consider, where warranted,
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`multiple requests for extensions over time.
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`6.
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`All such extensions must be reasonable in length, and none can effect a complete
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`halt of case activities for a long period of time—the Court expects that parties will work as
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`diligently as possible during this emergency to promote the efficient administration of justice,
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`while taking all appropriate health-related precautions. The Court further expects that parties will
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`exhibit extraordinary levels of cooperation during this period and present joint motions to adjust
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`case schedules whenever possible. Requests for such extensions must include fact specific
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`justifications and not merely a conclusory reference to the general pandemic.
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`7.
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`Subject to trial dates, claim construction dates, and other firm dates the Court will
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`furnish to counsel at or before the initial scheduling conference, the Court invites parties to submit
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`creative scheduling proposals that sequence events in the interest of moving litigation forward
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`fairly, efficiently and effectively given COVID-19 restrictions. In the absence of proposals from
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`the parties, the Court itself may change the sequence of certain case events for this reason.
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`C.
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`8.
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`Hearings
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`Unless the Court determines good cause exists, no in-person hearings will be held
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`for any case in which one of the parties has lead counsel (or, where applicable, intended witnesses)
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`subject to a shelter-in-place order, stay-at-home order, no-travel order, or similar orders or
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`advisories from government officials.
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`9.
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`For all other cases, any party desiring an in-person hearing must move for leave to
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`appear in-person no less than fourteen (14) days prior to the scheduled hearing date.
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`10.
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`To the extent any in-person appearances at the courthouse are permitted, the Court
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`may impose restrictions designed to identify—to the extent practicable—whether any attendee
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`presents risk factors for COVID-19. The Court may deny any such person access to the courthouse
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`or require them to leave the courthouse.
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`11.
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`Video and telephonic hearings will be set in the normal course of the Court’s
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`scheduling functions.
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`12.
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`The parties shall test the videoconferencing system in advance of scheduled
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`hearings as the Court may direct. Additionally, the parties are responsible for employing
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`equipment that is compatible and works satisfactorily with the Court’s system, and for ensuring
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`the same.
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`13.
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`At the direction of the Court, hearings may be held telephonically.
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`14.
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`For all hearings held via video or telephone, the parties shall electronically serve
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`on the Court and all parties any presentation slides (or other materials not already included in
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`briefing or exhibits to briefing) no later than 36 hours prior to the scheduled start of the hearing.
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`Concurrently with the service of such presentation slides, the parties shall also serve on the Court
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`electronically a list of: (a) all counsel who will participate during such hearing; (b) counsel who
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`shall observe but not participate; (c) witnesses who may be called to give evidence; and (d) party
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`representatives and other non-counsel who may observe but not participate in such hearing.
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`15.
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`All hearing participants shall use best efforts to refrain from interruptions or
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`speaking over other parties’ presentations. The Court expects extraordinary courtesy in this
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`extraordinary emergency.
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`D.
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`Depositions
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`16.
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`There will be no in-person depositions conducted during the pandemic. Depositions
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`should proceed forward using remote technologies that are widely available for conducting
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`depositions either telephonically or by video conference. A variety of systems are available that
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`allow for all participants to be physically separate and for real-time exhibit viewing to occur. Many
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`court reporting services offer such platforms, and internet searches for “remote video depositions”
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`and “remote telephonic depositions” will display alternatives.
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`17.
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`The party noticing a deposition shall specify the platform to be used and the
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`attorneys shall confer, if necessary, to agree on specific procedures that may be appropriate under
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`the circumstances. That a deposition is noticed to be conducted remotely shall not be a basis for a
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`protective-order motion during the pandemic, and during this health emergency the Court will
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`consider precluding remote depositions only in cases in which clear and significant prejudice is
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`articulated.
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`E.
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`Source Code Discovery
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`18.
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`This portion of the Standing Order applies to any action in which the parties have
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`produced source code or anticipate producing source code. The Court finds that in-person source
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`code review is unduly hazardous, and in some cases impossible, during the COVID-19 crisis.
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`19.
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`The Court expects the parties to work collaboratively to identify and implement
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`temporary procedures that will enable the receiving party’s authorized personnel (e.g., outside
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`counsel and experts) to review source code during the pandemic without the need for travel or in-
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`person code review. The Court invites the parties to submit creative proposals that accomplish the
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`goal of allowing code review to efficiently and effectively continue during the COVID-19 crisis,
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`while protecting the security of the source code—which is highly sensitive and valuable
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`information—as best as possible under the circumstances. Where the parties make a proper
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`showing, the Court will consider a scheduling extension to allow the parties to implement
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`procedures that promote this goal.
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`20.
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`The Court emphasizes that the use of such temporary code-review procedures
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`during the pandemic will not be citable as evidence of appropriate code-review procedures after
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`the pandemic. For example, these temporary procedures may not involve all the normal security
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`protocols utilized by parties producing source code (though even the temporary procedures will,
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`of course, involve security mechanisms). After the pandemic, parties producing source code can
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`return to advocating all their normal security protocols.
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`F.
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`Document Production and Inspection
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`21.
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`The Court finds that in-person inspection of documents and tangible things is
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`unduly hazardous, and in some cases impossible, during the COVID-19 crisis. Accordingly, to the
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`extent practicable, the parties are ordered to produce discovery in a form that can be reviewed
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`remotely (e.g., by producing documents in electronic form).
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`22.
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`To the extent remote, electronic production is not possible—e.g., for inspections of
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`physical things—the parties are ordered to meet and confer to implement alternative procedures
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`that minimize or eliminate the need for in-person contact, such as the following:
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`a. Mailing physical copies of documents or tangible things.
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`b.
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`Inspection via live or recorded video.
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`c. Placing the documents or things in a mutually acceptable secure location that can
`be accessed one-at-a-time by the persons conducting the inspection.
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`G.
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`Mediations
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`23.
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`No in-person mediations will be held during the pandemic absent leave of Court.
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`24. Mediation by videoconference will be the preferred approach, although telephonic
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`mediation shall also be available, subject to the preference of the appointed mediator in each case.
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`25.
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`Parties shall abide by the practices of each appointed mediator with respect to pre-
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`mediation written statements.
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`26.
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`Parties shall abide by all existing district rules governing mediations despite the
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`remote nature of the mediation including presenting representatives with full authority to
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`compromise each matter.
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`H. Conclusion
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`As temporary measures necessitated by an unforeseen global pandemic, the Court is
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`persuaded that the above procedures will assist both the Bench and the Bar in moving cases
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`forward safely and reasonably while being mindful of the necessary balance to be pursued between
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`the dual responsibilities of doing justice to both the rich and the poor while at the same time
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`safeguarding the health and well-being of those parties, jurors, witnesses, counsel and court staff
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`who interact and facilitate the functioning of our Third Branch of Government. Accordingly, the
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`above measures are ADOPTED and ORDERED COMPLIED WITH in all cases assigned to
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`the undersigned, until this Standing Order is modified or discontinued by subsequent order.1
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`1 The Court acknowledges with appreciation the following counsel who have served as an informal
`Working Group at the Court’s request to assist the Court in developing the above procedures.
`This informal Working Group is comprised of: David Folsom of Jackson Walker LLP, Chair;
`Ruffin B. Cordell of Fish & Richardson PC, member; Joseph J. Mueller of Wilmer Cutler
`Pickering Hale and Dorr, LLP, member; Leslie Payne of Heim Payne & Chorush, LLP, member;
`and Mike McKool of McKool Smith, member.
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`.
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`____________________________________
`RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
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`So ORDERED and SIGNED this 20th day of April, 2020.
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