`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`VARTA MICROBATTERY GMBH,
`Plaintiff,
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`v.
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`COSTCO WHOLESALE CORPORATION
`
`Civil Action No. 2:20-cv-00051-JRG
` LEAD CASE
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`AMAZON.COM, INC.
`
`Civil Action No. 2:20-cv-00052-JRG
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`BEST BUY CO., INC., ET AL
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`Civil Action No. 2:20-cv-00054-JRG
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`PEAG, LLC
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`Civil Action No. 2:20-cv-00071-JRG
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`AUDIO PARTNERSHIP LLC, ET AL
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`Civil Action No. 2:20-cv-00138-JRG
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`SAMSUNG ELECTRONICS AMERICA,
`INC.
`
`Defendants.
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`Civil Action No. 2:20-cv-00029-JRG
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`DISCOVERY ORDER IN CIVIL ACTION NOS. 2:20-00029, 2:20-00071, 2:20-00138
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`After a review of the pleaded claims and defenses in Civil Action Nos. 2:20-00029-JRG,
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`2:20-00071-JRG, 2:20-00138-JRG,1 in furtherance of the management of the Court’s docket under
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`Federal Rule of Civil Procedure 16, and after receiving the input of the parties to those three
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`actions, it is ORDERED AS FOLLOWS:
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`1 Civil Action Nos. 2:20-cv-00051-JRG and 2:20-cv-00052 are not included in this Order as
`those cases were stayed by this Court on May 18, 2020. Civil Action No. 2:20-cv-00054 is not
`included in this Order because that case was stayed by this Court on June 4, 2020.
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`VARTA Ex. 2003 Page 1 of 11
`PEAG/Audio Partnership v. VARTA
`IPR2020-01212
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`
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`Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 2 of 11 PageID #: 312
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`1.
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`Initial Disclosures: In lieu of the disclosures required by Federal Rule of Civil Procedure
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`26(a)(1), each party shall disclose to every other party in its individual action2 the following
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`information:
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`a.
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`b.
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`c.
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`the correct names of the parties to the lawsuit;
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`the name, address, and telephone number of any potential parties;
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`the legal theories and, in general, the factual bases of the disclosing party’s
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`claims or defenses (the disclosing party need not marshal all evidence that
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`may be offered at trial);
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`d.
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`the name, address, and telephone number of persons having knowledge of
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`relevant facts, a brief statement of each identified person’s connection with
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`the case, and a brief, fair summary of the substance of the information
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`known by any such person;
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`e. any indemnity and insuring agreements under which any person or entity
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`carrying on an insurance business may be liable to satisfy part or all of a
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`judgment entered in the action or to indemnify or reimburse for payments
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`made to satisfy the judgment;
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`f.
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`any settlement agreements relevant to the subject matter of the action; and
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`g. any statement of any party to the litigation.
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`2 For clarity, the disclosures required to be made under this Order require a party to provide
`information to the parties in its individual action only. Individual defendants may separately
`agree to provide to other defendants in the actions subject to this Order certain information, but
`that is not required by this Order.
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`VARTA Ex. 2003 Page 2 of 11
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`Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 3 of 11 PageID #: 313
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`2. Disclosure of Expert Testimony: A party must disclose to the other parties in its individual
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`action the identity of any witness it may use at trial to present evidence under Federal Rule of
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`Evidence 702, 703 or 705, and:
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`a.
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`if the witness is one retained or specially employed to provide expert
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`testimony in the case or one whose duties as the party’s employee regularly
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`involve giving expert testimony, provide the disclosures required by Federal
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`Rule of Civil Procedure 26(a)(2)(B) and Local Rule CV-26; and
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`b.
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`for all other such witnesses, provide the disclosure required by Federal Rule
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`of Civil Procedure 26(a)(2)(C).
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`3. Additional Disclosures: Without awaiting a discovery request, each party will make the
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`following disclosures to every other party in its individual action:
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`a. provide the disclosures required by the Patent Rules for the Eastern District
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`of Texas.
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`b. produce or permit the inspection of all documents, electronically stored
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`information, and tangible things in the possession, custody, or control of the
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`party that are relevant to the pleaded claims or defenses involved in this
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`action, except to the extent these disclosures are affected by the time limits
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`set forth in the Patent Rules for the Eastern District of Texas; 3 and
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`c. provide a complete computation of any category of damages claimed by any
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`party to the action, and produce or permit the inspection of documents or
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`other evidentiary material on which such computation is based, including
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`3 The parties anticipate that this provision will alleviate the need for requests for production of
`documents under Fed. R. Civ. P. 34.
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`VARTA Ex. 2003 Page 3 of 11
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`Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 4 of 11 PageID #: 314
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`materials bearing on the nature and extent of injuries suffered, except that
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`the disclosure of the computation of damages may be deferred until the time
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`for Expert Disclosures if a party will rely on a damages expert.
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`4. Protective Orders: The Court will enter the parties’ Agreed Protective Order, subject to the
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`Court’s approval.
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`5. Discovery Limitations: The discovery in these actions is limited to the disclosures described
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`in Paragraphs 1-3 together with the following limits:
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`a. Defendants: For purposes of this paragraph, there are three “Defendant
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`Groups”: (1) Samsung Electronics America, Inc.; (2) PEAG, LLC d/b/a
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`JLab Audio; and (3) Audio Partnership (Audio Partnership LLC and Audio
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`Partnership PLC d/b/a Cambridge Audio). “Defendants” refers to all of the
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`Defendants in the foregoing Defendant Groups. “Side” means Plaintiff
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`VARTA Microbattery GmbH on the one hand and the three Defendant
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`Groups collectively on the other hand.
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`b.
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`Interrogatories: Plaintiff may serve fifteen (15) interrogatories common to
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`all Defendants and five (5) individual interrogatories on each Defendant
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`Group. Defendants may collectively serve ten (10) interrogatories on
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`Plaintiff and each Defendant Group may serve ten (10) individual
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`interrogatories on Plaintiff.
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`c. Requests for Admissions: Plaintiff may serve fifteen (15) requests for
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`admission common to all Defendants and ten (10) individual requests for
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`admission to each Defendant Group. Defendants may collectively serve
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`fifteen (15) requests for admission and each Defendant Group may serve
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`VARTA Ex. 2003 Page 4 of 11
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`Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 5 of 11 PageID #: 315
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`ten (10) individual requests for admission on Plaintiff. Each side may serve
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`an additional thirty five (35) requests for admission that seek an admission
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`as to the authenticity of a particular document or thing. The parties shall
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`work together in good faith in an effort to stipulate as to the authenticity of
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`documents where possible.
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`d. Depositions:
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`i. Fact Depositions: Plaintiff may take a take a maximum of forty-nine
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`(49) hours of fact depositions (including 30(b)(6), 30(b)(1), and
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`third-party fact depositions) of each Defendant Group. Defendants
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`may collectively take a maximum of twenty-one (21) hours of fact
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`depositions (including 30(b)(6) and 30(b)(1) and third party fact
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`depositions); this limitation, however, does not include depositions
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`of the named inventors of the patents-in-suit, which may also be
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`taken by Defendants. Each Defendant Group may individually take
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`two (2) additional depositions of Plaintiff. Unless otherwise agreed,
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`the daily limit of seven (7) hours shall apply to all fact depositions,
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`and no fact witness may be deposed more than once by Defendants.
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`ii. Expert Depositions: Plaintiff and each Defendant Group may take
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`up to seven (7) hours of deposition testimony of each expert who
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`submits a report on the issues of infringement, validity and damages
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`in the case. Plaintiff and Defendants will endeavor to minimize the
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`amount of experts and related depositions to the extent possible and
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`each side in good faith will consider using a single expert per side
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`VARTA Ex. 2003 Page 5 of 11
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`Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 6 of 11 PageID #: 316
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`on validity issues. Each side may depose an expert for up to seven
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`(7) hours. If an expert submits a report on more than one issue (e.g.,
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`a single expert submits a report on both infringement and validity),
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`the side on which the report was served may take an additional seven
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`(7) hours for each additional issue.
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`iii. Depositions on Written Questions: The parties may initiate
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`depositions on written questions on third parties as permitted by the
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`Federal Rules of Civil Procedure.
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`iv. The parties agree to coordinate depositions such that each individual
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`witness is only deposed once. This coordination also extends to third
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`party witnesses. To the extent a witness is both designated as a corp-
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`orate representative under Rule 30(b)(6) and individually noticed for
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`deposition under Rule 30(b)(1), such depositions shall occur on the
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`same day.
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`e. Modification of Discovery Limits: Any party may later move to modify
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`these limitations for good cause.
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`6. Privileged Information: There is no duty to disclose privileged documents or information.
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`Unless otherwise agreed to by the parties in any of the above-captioned actions, by the deadline
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`set in the Docket Control Order, the parties shall exchange in their individual action privilege
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`logs identifying the documents or information and the basis for any disputed claim of privilege
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`in a manner that, without revealing information itself, will enable the other parties to assess
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`the applicability of the privilege or protection. Any party may move the Court for an order
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`compelling the production of any documents or information identified on any other party’s
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`VARTA Ex. 2003 Page 6 of 11
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`Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 7 of 11 PageID #: 317
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`privilege log. If such a motion is made, the party asserting privilege shall respond to the motion
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`within the time period provided by Local Rule CV-7. The party asserting privilege shall then
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`file with the Court within 30 days of the filing of the motion to compel any proof in the form
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`of declarations or affidavits to support their assertions of privilege, along with the documents
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`over which privilege is asserted for in camera inspection.
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`7. Signature: The disclosures required by this Order shall be made in writing and signed by the
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`party or counsel and shall constitute a certification that, to the best of the signer’s knowledge,
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`information and belief, such disclosure is complete and correct as of the time it is made. If
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`feasible, counsel shall meet to exchange disclosures required by this Order; otherwise, such
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`disclosures shall be served as provided by Federal Rule of Civil Procedure 5. The parties shall
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`promptly file a notice with the Court that the disclosures required under this Order have taken
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`place.
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`8. Duty to Supplement: After disclosure is made pursuant to this Order, each party is under a
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`duty to supplement or correct its disclosures immediately if the party obtains information on
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`the basis of which it knows that the information disclosed was either incomplete or incorrect
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`when made, or is no longer complete or true.
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`9. Discovery Disputes:
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`a. Except in cases involving claims of privilege, any party entitled to receive
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`disclosures (“Requesting Party”) may, after the deadline for making
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`disclosures, serve upon a party required to make disclosures (“Responding
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`Party”) a written statement, in letter form or otherwise, of any reason why
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`the Requesting Party believes that the Responding Party’s disclosures are
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`insufficient. The written statement shall list, by category, the items the
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`VARTA Ex. 2003 Page 7 of 11
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`Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 8 of 11 PageID #: 318
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`Requesting Party contends should be produced. The parties shall promptly
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`meet and confer. If the parties are unable to resolve their dispute, then the
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`Responding Party shall, within 14 days after service of the written statement
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`upon it, serve upon the Requesting Party a written statement, in letter form
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`or otherwise, which identifies (1) the requested items that will be disclosed,
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`if any, and (2) the reasons why any requested items will not be disclosed.
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`The Requesting Party may thereafter file a motion to compel.
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`b. An opposed discovery related motion, or any response thereto, shall not
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`exceed 7 pages. Attachments to a discovery related motion, or a response
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`thereto, shall not exceed 5 pages. No further briefing is allowed absent a
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`request or order from the Court.
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`c. Prior to filing any discovery related motion, the parties must fully comply
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`with the substantive and procedural conference requirements of Local Rule
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`CV-7(h) and (i). Within 72 hours of the Court setting any discovery motion
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`for a hearing, each party’s lead attorney (see Local Rule CV-11(a)) and local
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`counsel shall meet and confer in person or by telephone, without the
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`involvement or participation of other attorneys, in an effort to resolve the
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`dispute without Court intervention.
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`d. Counsel shall promptly notify the Court of the results of that meeting by
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`filing a joint report of no more than two pages. Unless excused by the Court,
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`each party’s lead attorney shall attend any discovery motion hearing set by
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`the Court (though the lead attorney is not required to argue the motion).
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`VARTA Ex. 2003 Page 8 of 11
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`Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 9 of 11 PageID #: 319
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`e. Any change to a party’s lead attorney designation must be accomplished by
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`motion and order.
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`f. Counsel are directed to contact the chambers of the undersigned for any
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`“hot-line” disputes before contacting the Discovery Hotline provided by
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`Local Rule CV-26(e). If the undersigned is not available, the parties shall
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`proceed in accordance with Local Rule CV-26(e).
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`10. No Excuses: A party is not excused from the requirements of this Discovery Order because
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`it has not fully completed its investigation of the case, or because it challenges the sufficiency
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`of another party’s disclosures, or because another party has not made its disclosures. Absent
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`court order to the contrary, a party is not excused from disclosure because there are pending
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`motions to dismiss, to remand or to change venue
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`11. Filings: Only upon request from chambers shall counsel submit to the court courtesy copies
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`of any filings.
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`12. Proposed Stipulations by the Parties Regarding Discovery Orders:
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`a. Service by Electronic Mail: The parties agree to accept service of discovery
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`requests and responses, and other disclosures required by this Discovery
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`Order or the Local Rules by electronic mail or through ECF, as appropriate.
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`Where a document is too large to serve by email, the serving party shall
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`send an email notice providing instructions for downloading the document
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`via FTP or similar file transfer service.
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`b. Privilege Log Limitations: Unless good cause is shown, and except as
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`provided under P.R. 3-7, privileged documents or information created after
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`VARTA Ex. 2003 Page 9 of 11
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`Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 10 of 11 PageID #: 320
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`the filing date of the earliest of these consolidated actions do not have to be
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`identified by the parties on their respective privilege logs.
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`c. Third Party Subpoenas: A party who serves a subpoena in any of these
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`consolidated actions on a third party shall provide a copy to the other
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`parties. A party who receives documents from a third party pursuant to a
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`subpoena will reproduce those documents to the other party in its individual
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`action within five (5) business days. Where reproduction of documents
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`within five (5) business days is not possible, the party who received the
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`documents will provide prompt notice to the other party in its individual
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`action and will work in good faith to resolve the issue on a case-by-case
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`basis.
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`d. Federal Rule of Evidence 502(d): The Parties stipulate that Federal Rule of
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`Evidence 502(d) shall apply to all discovery in this lawsuit – specifically,
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`that any otherwise applicable privileges or protections are not waived by
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`disclosure connected with this lawsuit.
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`e. The parties agree to negotiate in good faith a proposed order governing the
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`production of Electronically Stored Information.
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`13. Standing Orders: The parties and counsel are charged with notice of and are required to fully
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`comply with each of the Standing Orders of this Court. Such are posted on the Court’s website
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`at http://www.txed.uscourts.gov/?q=court-annexed-mediation-plan. The substance of some
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`such orders may be included expressly within this Discovery Order, while others (including
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`the Court’s Standing Order Regarding Protection of Proprietary and/or Confidential
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`Information to Be Presented to the Court During Motion and Trial Practice) are incorporated
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`VARTA Ex. 2003 Page 10 of 11
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`Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 11 of 11 PageID #: 321
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`herein by reference. All such standing orders shall be binding on the parties and counsel,
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`regardless of whether they are expressly included herein or made a part hereof by reference.
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`So Ordered this
`Jun 9, 2020
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`VARTA Ex. 2003 Page 11 of 11
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