IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`
`STANDING ORDER REGARDING PRETRIAL PROCEDURES
`IN CIVIL CASES ASSIGNED TO CHIEF DISTRICT JUDGE RODNEY GILSTRAP
`DURING THE PRESENT COVID-19 PANDEMIC
`
`WHEREAS, the novel coronavirus COVID-19 pandemic requires timely and appropriately
`
`tailored measures to arrest the spread of the infection, prevent harm to vulnerable persons, and
`
`protect critical medical and emergency infrastructure;
`
`WHEREAS, avoiding travel and in-person contact are known to be effective measures
`
`against the spread of COVID-19; and
`
`WHEREAS, the Court finds that, with the assistance of modern technology, civil cases can
`
`be litigated largely without travel or in-person contact between attorneys, witnesses, experts, Court
`
`personnel, and other case participants;
`
`NOW, THEREFORE, IT IS ORDERED THAT:
`
`A.
`
`1.
`
`Guiding Principles
`
`The health of impacted persons—Court staff, witnesses, lawyers, and all others
`
`involved in cases—is paramount. While the Court wants all parties to prioritize health concerns
`
`above all other considerations, the Court is also mindful of the vital need to keep cases moving.
`
`2.
`
`Trying to keep cases moving forward while prioritizing the health of individuals
`
`will sometimes lead to unconventional practices and accommodations that would not normally be
`
`accepted as appropriate. As one example, the pandemic conditions may require production of
`
`computer source code in ways that are not consistent with the producing party’s normal security
`
`protocols. As another example, depositions of witnesses may need to be conducted remotely with
`
`Optis Cellular Ex 2003-p. 1
`Apple v Optis Cellular
`IPR2020-00465
`
`
`FOR THE EASTERN DISTRICT OF TEXAS
`
`STANDING ORDER REGARDING PRETRIAL PROCEDURES
`IN CIVIL CASES ASSIGNED TO CHIEF DISTRICT JUDGE RODNEY GILSTRAP
`DURING THE PRESENT COVID-19 PANDEMIC
`
`WHEREAS, the novel coronavirus COVID-19 pandemic requires timely and appropriately
`
`tailored measures to arrest the spread of the infection, prevent harm to vulnerable persons, and
`
`protect critical medical and emergency infrastructure;
`
`WHEREAS, avoiding travel and in-person contact are known to be effective measures
`
`against the spread of COVID-19; and
`
`WHEREAS, the Court finds that, with the assistance of modern technology, civil cases can
`
`be litigated largely without travel or in-person contact between attorneys, witnesses, experts, Court
`
`personnel, and other case participants;
`
`NOW, THEREFORE, IT IS ORDERED THAT:
`
`A.
`
`1.
`
`Guiding Principles
`
`The health of impacted persons—Court staff, witnesses, lawyers, and all others
`
`involved in cases—is paramount. While the Court wants all parties to prioritize health concerns
`
`above all other considerations, the Court is also mindful of the vital need to keep cases moving.
`
`2.
`
`Trying to keep cases moving forward while prioritizing the health of individuals
`
`will sometimes lead to unconventional practices and accommodations that would not normally be
`
`accepted as appropriate. As one example, the pandemic conditions may require production of
`
`computer source code in ways that are not consistent with the producing party’s normal security
`
`protocols. As another example, depositions of witnesses may need to be conducted remotely with
`
`Optis Cellular Ex 2003-p. 1
`Apple v Optis Cellular
`IPR2020-00465
`
`
`
`all participants separated, which, especially for first-time witnesses unfamiliar with the process,
`
`may be an uncomfortable experience.
`
`3.
`
`For all such unconventional practices used during this health emergency, those
`
`practices may not be cited as appropriate practices to follow once the health emergency has passed.
`
`If such practices were citable, that would discourage parties from agreeing to those approaches
`
`during the health emergency. The Court wants exactly the opposite: for parties to be willing to
`
`make special accommodations during the health emergency, confident that those special
`
`accommodations will not be used against them in the future.
`
`4.
`
`In the absence of a particular directive from the Court, attorneys should follow
`
`applicable local, state, and federal guidelines. In general, travel should be avoided during the
`
`pandemic—and this includes travel for hearings, depositions, and other litigation events. Likewise,
`
`during the pandemic parties should avoid gatherings where appropriate social distancing is not
`
`practicable—such as in-person depositions.
`
`B.
`
`5.
`
`Case Scheduling
`
`The Court is open to requests for extensions to accommodate the COVID-19-
`
`related needs of persons involved in cases before the Court. Because the state of the COVID-19
`
`emergency remains fluid and evolves week-to-week, the Court will consider, where warranted,
`
`multiple requests for extensions over time.
`
`6.
`
`All such extensions must be reasonable in length, and none can effect a complete
`
`halt of case activities for a long period of time—the Court expects that parties will work as
`
`diligently as possible during this emergency to promote the efficient administration of justice,
`
`while taking all appropriate health-related precautions. The Court further expects that parties will
`
`exhibit extraordinary levels of cooperation during this period and present joint motions to adjust
`
`Optis Cellular Ex 2003-p. 2
`Apple v Optis Cellular
`IPR2020-00465
`
`
`
`case schedules whenever possible. Requests for such extensions must include fact specific
`
`justifications and not merely a conclusory reference to the general pandemic.
`
`7.
`
`Subject to trial dates, claim construction dates, and other firm dates the Court will
`
`furnish to counsel at or before the initial scheduling conference, the Court invites parties to submit
`
`creative scheduling proposals that sequence events in the interest of moving litigation forward
`
`fairly, efficiently and effectively given COVID-19 restrictions. In the absence of proposals from
`
`the parties, the Court itself may change the sequence of certain case events for this reason.
`
`C.
`
`8.
`
`Hearings
`
`Unless the Court determines good cause exists, no in-person hearings will be held
`
`for any case in which one of the parties has lead counsel (or, where applicable, intended witnesses)
`
`subject to a shelter-in-place order, stay-at-home order, no-travel order, or similar orders or
`
`advisories from government officials.
`
`9.
`
`For all other cases, any party desiring an in-person hearing must move for leave to
`
`appear in-person no less than fourteen (14) days prior to the scheduled hearing date.
`
`10.
`
`To the extent any in-person appearances at the courthouse are permitted, the Court
`
`may impose restrictions designed to identify—to the extent practicable—whether any attendee
`
`presents risk factors for COVID-19. The Court may deny any such person access to the courthouse
`
`or require them to leave the courthouse.
`
`11.
`
`Video and telephonic hearings will be set in the normal course of the Court’s
`
`scheduling functions.
`
`12.
`
`The parties shall test the videoconferencing system in advance of scheduled
`
`hearings as the Court may direct. Additionally, the parties are responsible for employing
`
`Optis Cellular Ex 2003-p. 3
`Apple v Optis Cellular
`IPR2020-00465
`
`
`
`equipment that is compatible and works satisfactorily with the Court’s system, and for ensuring
`
`the same.
`
`13.
`
`At the direction of the Court, hearings may be held telephonically.
`
`14.
`
`For all hearings held via video or telephone, the parties shall electronically serve
`
`on the Court and all parties any presentation slides (or other materials not already included in
`
`briefing or exhibits to briefing) no later than 36 hours prior to the scheduled start of the hearing.
`
`Concurrently with the service of such presentation slides, the parties shall also serve on the Court
`
`electronically a list of: (a) all counsel who will participate during such hearing; (b) counsel who
`
`shall observe but not participate; (c) witnesses who may be called to give evidence; and (d) party
`
`representatives and other non-counsel who may observe but not participate in such hearing.
`
`15.
`
`All hearing participants shall use best efforts to refrain from interruptions or
`
`speaking over other parties’ presentations. The Court expects extraordinary courtesy in this
`
`extraordinary emergency.
`
`D.
`
`Depositions
`
`16.
`
`There will be no in-person depositions conducted during the pandemic. Depositions
`
`should proceed forward using remote technologies that are widely available for conducting
`
`depositions either telephonically or by video conference. A variety of systems are available that
`
`allow for all participants to be physically separate and for real-time exhibit viewing to occur. Many
`
`court reporting services offer such platforms, and internet searches for “remote video depositions”
`
`and “remote telephonic depositions” will display alternatives.
`
`17.
`
`The party noticing a deposition shall specify the platform to be used and the
`
`attorneys shall confer, if necessary, to agree on specific procedures that may be appropriate under
`
`the circumstances. That a deposition is noticed to be conducted remotely shall not be a basis for a
`
`Optis Cellular Ex 2003-p. 4
`Apple v Optis Cellular
`IPR2020-00465
`
`
`
`protective-order motion during the pandemic, and during this health emergency the Court will
`
`consider precluding remote depositions only in cases in which clear and significant prejudice is
`
`articulated.
`
`E.
`
`Source Code Discovery
`
`18.
`
`This portion of the Standing Order applies to any action in which the parties have
`
`produced source code or anticipate producing source code. The Court finds that in-person source
`
`code review is unduly hazardous, and in some cases impossible, during the COVID-19 crisis.
`
`19.
`
`The Court expects the parties to work collaboratively to identify and implement
`
`temporary procedures that will enable the receiving party’s authorized personnel (e.g., outside
`
`counsel and experts) to review source code during the pandemic without the need for travel or in-
`
`person code review. The Court invites the parties to submit creative proposals that accomplish the
`
`goal of allowing code review to efficiently and effectively continue during the COVID-19 crisis,
`
`while protecting the security of the source code—which is highly sensitive and valuable
`
`information—as best as possible under the circumstances. Where the parties make a proper
`
`showing, the Court will consider a scheduling extension to allow the parties to implement
`
`procedures that promote this goal.
`
`20.
`
`The Court emphasizes that the use of such temporary code-review procedures
`
`during the pandemic will not be citable as evidence of appropriate code-review procedures after
`
`the pandemic. For example, these temporary procedures may not involve all the normal security
`
`protocols utilized by parties producing source code (though even the temporary procedures will,
`
`of course, involve security mechanisms). After the pandemic, parties producing source code can
`
`return to advocating all their normal security protocols.
`
`Optis Cellular Ex 2003-p. 5
`Apple v Optis Cellular
`IPR2020-00465
`
`
`
`F.
`
`Document Production and Inspection
`
`21.
`
`The Court finds that in-person inspection of documents and tangible things is
`
`unduly hazardous, and in some cases impossible, during the COVID-19 crisis. Accordingly, to the
`
`extent practicable, the parties are ordered to produce discovery in a form that can be reviewed
`
`remotely (e.g., by producing documents in electronic form).
`
`22.
`
`To the extent remote, electronic production is not possible—e.g., for inspections of
`
`physical things—the parties are ordered to meet and confer to implement alternative procedures
`
`that minimize or eliminate the need for in-person contact, such as the following:
`
`a. Mailing physical copies of documents or tangible things.
`
`b.
`
`Inspection via live or recorded video.
`
`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.
`
`G.
`
`Mediations
`
`23.
`
`No in-person mediations will be held during the pandemic absent leave of Court.
`
`24. Mediation by videoconference will be the preferred approach, although telephonic
`
`mediation shall also be available, subject to the preference of the appointed mediator in each case.
`
`25.
`
`Parties shall abide by the practices of each appointed mediator with respect to pre-
`
`mediation written statements.
`
`26.
`
`Parties shall abide by all existing district rules governing mediations despite the
`
`remote nature of the mediation including presenting representatives with full authority to
`
`compromise each matter.
`
`H. Conclusion
`
`As temporary measures necessitated by an unforeseen global pandemic, the Court is
`
`persuaded that the above procedures will assist both the Bench and the Bar in moving cases
`
`Optis Cellular Ex 2003-p. 6
`Apple v Optis Cellular
`IPR2020-00465
`
`
`
`forward safely and reasonably while being mindful of the necessary balance to be pursued between
`
`the dual responsibilities of doing justice to both the rich and the poor while at the same time
`
`safeguarding the health and well-being of those parties, jurors, witnesses, counsel and court staff
`
`who interact and facilitate the functioning of our Third Branch of Government. Accordingly, the
`
`above measures are ADOPTED and ORDERED COMPLIED WITH in all cases assigned to
`
`the undersigned, until this Standing Order is modified or discontinued by subsequent order.1
`
`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.
`
`.
`
`____________________________________
`RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
`
`So ORDERED and SIGNED this 20th day of April, 2020.
`
`Optis Cellular Ex 2003-p. 7
`Apple v Optis Cellular
`IPR2020-00465
`
`
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