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Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 1 of 11 PageID #: 311
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`VARTA MICROBATTERY GMBH,
`Plaintiff,
`
`v.
`
`COSTCO WHOLESALE CORPORATION
`
`Civil Action No. 2:20-cv-00051-JRG
` LEAD CASE
`
`AMAZON.COM, INC.
`
`Civil Action No. 2:20-cv-00052-JRG
`
`BEST BUY CO., INC., ET AL
`
`Civil Action No. 2:20-cv-00054-JRG
`
`PEAG, LLC
`
`Civil Action No. 2:20-cv-00071-JRG
`
`AUDIO PARTNERSHIP LLC, ET AL
`
`Civil Action No. 2:20-cv-00138-JRG
`
`SAMSUNG ELECTRONICS AMERICA,
`INC.
`
`Defendants.
`
`Civil Action No. 2:20-cv-00029-JRG
`
`DISCOVERY ORDER IN CIVIL ACTION NOS. 2:20-00029, 2:20-00071, 2:20-00138
`
`After a review of the pleaded claims and defenses in Civil Action Nos. 2:20-00029-JRG,
`
`2:20-00071-JRG, 2:20-00138-JRG,1 in furtherance of the management of the Court’s docket under
`
`Federal Rule of Civil Procedure 16, and after receiving the input of the parties to those three
`
`actions, it is ORDERED AS FOLLOWS:
`
`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.
`
`VARTA Ex. 2003 Page 1 of 11
`PEAG/Audio Partnership v. VARTA
`IPR2020-01212
`
`

`

`Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 2 of 11 PageID #: 312
`
`1.
`
`Initial Disclosures: In lieu of the disclosures required by Federal Rule of Civil Procedure
`
`26(a)(1), each party shall disclose to every other party in its individual action2 the following
`
`information:
`
`a.
`
`b.
`
`c.
`
`the correct names of the parties to the lawsuit;
`
`the name, address, and telephone number of any potential parties;
`
`the legal theories and, in general, the factual bases of the disclosing party’s
`
`claims or defenses (the disclosing party need not marshal all evidence that
`
`may be offered at trial);
`
`d.
`
`the name, address, and telephone number of persons having knowledge of
`
`relevant facts, a brief statement of each identified person’s connection with
`
`the case, and a brief, fair summary of the substance of the information
`
`known by any such person;
`
`e. any indemnity and insuring agreements under which any person or entity
`
`carrying on an insurance business may be liable to satisfy part or all of a
`
`judgment entered in the action or to indemnify or reimburse for payments
`
`made to satisfy the judgment;
`
`f.
`
`any settlement agreements relevant to the subject matter of the action; and
`
`g. any statement of any party to the litigation.
`
`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.
`
`VARTA Ex. 2003 Page 2 of 11
`
`

`

`Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 3 of 11 PageID #: 313
`
`2. Disclosure of Expert Testimony: A party must disclose to the other parties in its individual
`
`action the identity of any witness it may use at trial to present evidence under Federal Rule of
`
`Evidence 702, 703 or 705, and:
`
`a.
`
`if the witness is one retained or specially employed to provide expert
`
`testimony in the case or one whose duties as the party’s employee regularly
`
`involve giving expert testimony, provide the disclosures required by Federal
`
`Rule of Civil Procedure 26(a)(2)(B) and Local Rule CV-26; and
`
`b.
`
`for all other such witnesses, provide the disclosure required by Federal Rule
`
`of Civil Procedure 26(a)(2)(C).
`
`3. Additional Disclosures: Without awaiting a discovery request, each party will make the
`
`following disclosures to every other party in its individual action:
`
`a. provide the disclosures required by the Patent Rules for the Eastern District
`
`of Texas.
`
`b. produce or permit the inspection of all documents, electronically stored
`
`information, and tangible things in the possession, custody, or control of the
`
`party that are relevant to the pleaded claims or defenses involved in this
`
`action, except to the extent these disclosures are affected by the time limits
`
`set forth in the Patent Rules for the Eastern District of Texas; 3 and
`
`c. provide a complete computation of any category of damages claimed by any
`
`party to the action, and produce or permit the inspection of documents or
`
`other evidentiary material on which such computation is based, including
`
`3 The parties anticipate that this provision will alleviate the need for requests for production of
`documents under Fed. R. Civ. P. 34.
`
`VARTA Ex. 2003 Page 3 of 11
`
`

`

`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
`
`the disclosure of the computation of damages may be deferred until the time
`
`for Expert Disclosures if a party will rely on a damages expert.
`
`4. Protective Orders: The Court will enter the parties’ Agreed Protective Order, subject to the
`
`Court’s approval.
`
`5. Discovery Limitations: The discovery in these actions is limited to the disclosures described
`
`in Paragraphs 1-3 together with the following limits:
`
`a. Defendants: For purposes of this paragraph, there are three “Defendant
`
`Groups”: (1) Samsung Electronics America, Inc.; (2) PEAG, LLC d/b/a
`
`JLab Audio; and (3) Audio Partnership (Audio Partnership LLC and Audio
`
`Partnership PLC d/b/a Cambridge Audio). “Defendants” refers to all of the
`
`Defendants in the foregoing Defendant Groups. “Side” means Plaintiff
`
`VARTA Microbattery GmbH on the one hand and the three Defendant
`
`Groups collectively on the other hand.
`
`b.
`
`Interrogatories: Plaintiff may serve fifteen (15) interrogatories common to
`
`all Defendants and five (5) individual interrogatories on each Defendant
`
`Group. Defendants may collectively serve ten (10) interrogatories on
`
`Plaintiff and each Defendant Group may serve ten (10) individual
`
`interrogatories on Plaintiff.
`
`c. Requests for Admissions: Plaintiff may serve fifteen (15) requests for
`
`admission common to all Defendants and ten (10) individual requests for
`
`admission to each Defendant Group. Defendants may collectively serve
`
`fifteen (15) requests for admission and each Defendant Group may serve
`
`VARTA Ex. 2003 Page 4 of 11
`
`

`

`Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 5 of 11 PageID #: 315
`
`ten (10) individual requests for admission on Plaintiff. Each side may serve
`
`an additional thirty five (35) requests for admission that seek an admission
`
`as to the authenticity of a particular document or thing. The parties shall
`
`work together in good faith in an effort to stipulate as to the authenticity of
`
`documents where possible.
`
`d. Depositions:
`
`i. Fact Depositions: Plaintiff may take a take a maximum of forty-nine
`
`(49) hours of fact depositions (including 30(b)(6), 30(b)(1), and
`
`third-party fact depositions) of each Defendant Group. Defendants
`
`may collectively take a maximum of twenty-one (21) hours of fact
`
`depositions (including 30(b)(6) and 30(b)(1) and third party fact
`
`depositions); this limitation, however, does not include depositions
`
`of the named inventors of the patents-in-suit, which may also be
`
`taken by Defendants. Each Defendant Group may individually take
`
`two (2) additional depositions of Plaintiff. Unless otherwise agreed,
`
`the daily limit of seven (7) hours shall apply to all fact depositions,
`
`and no fact witness may be deposed more than once by Defendants.
`
`ii. Expert Depositions: Plaintiff and each Defendant Group may take
`
`up to seven (7) hours of deposition testimony of each expert who
`
`submits a report on the issues of infringement, validity and damages
`
`in the case. Plaintiff and Defendants will endeavor to minimize the
`
`amount of experts and related depositions to the extent possible and
`
`each side in good faith will consider using a single expert per side
`
`VARTA Ex. 2003 Page 5 of 11
`
`

`

`Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 6 of 11 PageID #: 316
`
`on validity issues. Each side may depose an expert for up to seven
`
`(7) hours. If an expert submits a report on more than one issue (e.g.,
`
`a single expert submits a report on both infringement and validity),
`
`the side on which the report was served may take an additional seven
`
`(7) hours for each additional issue.
`
`iii. Depositions on Written Questions: The parties may initiate
`
`depositions on written questions on third parties as permitted by the
`
`Federal Rules of Civil Procedure.
`
`iv. The parties agree to coordinate depositions such that each individual
`
`witness is only deposed once. This coordination also extends to third
`
`party witnesses. To the extent a witness is both designated as a corp-
`
`orate representative under Rule 30(b)(6) and individually noticed for
`
`deposition under Rule 30(b)(1), such depositions shall occur on the
`
`same day.
`
`e. Modification of Discovery Limits: Any party may later move to modify
`
`these limitations for good cause.
`
`6. Privileged Information: There is no duty to disclose privileged documents or information.
`
`Unless otherwise agreed to by the parties in any of the above-captioned actions, by the deadline
`
`set in the Docket Control Order, the parties shall exchange in their individual action privilege
`
`logs identifying the documents or information and the basis for any disputed claim of privilege
`
`in a manner that, without revealing information itself, will enable the other parties to assess
`
`the applicability of the privilege or protection. Any party may move the Court for an order
`
`compelling the production of any documents or information identified on any other party’s
`
`VARTA Ex. 2003 Page 6 of 11
`
`

`

`Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 7 of 11 PageID #: 317
`
`privilege log. If such a motion is made, the party asserting privilege shall respond to the motion
`
`within the time period provided by Local Rule CV-7. The party asserting privilege shall then
`
`file with the Court within 30 days of the filing of the motion to compel any proof in the form
`
`of declarations or affidavits to support their assertions of privilege, along with the documents
`
`over which privilege is asserted for in camera inspection.
`
`7. Signature: The disclosures required by this Order shall be made in writing and signed by the
`
`party or counsel and shall constitute a certification that, to the best of the signer’s knowledge,
`
`information and belief, such disclosure is complete and correct as of the time it is made. If
`
`feasible, counsel shall meet to exchange disclosures required by this Order; otherwise, such
`
`disclosures shall be served as provided by Federal Rule of Civil Procedure 5. The parties shall
`
`promptly file a notice with the Court that the disclosures required under this Order have taken
`
`place.
`
`8. Duty to Supplement: After disclosure is made pursuant to this Order, each party is under a
`
`duty to supplement or correct its disclosures immediately if the party obtains information on
`
`the basis of which it knows that the information disclosed was either incomplete or incorrect
`
`when made, or is no longer complete or true.
`
`9. Discovery Disputes:
`
`a. Except in cases involving claims of privilege, any party entitled to receive
`
`disclosures (“Requesting Party”) may, after the deadline for making
`
`disclosures, serve upon a party required to make disclosures (“Responding
`
`Party”) a written statement, in letter form or otherwise, of any reason why
`
`the Requesting Party believes that the Responding Party’s disclosures are
`
`insufficient. The written statement shall list, by category, the items the
`
`VARTA Ex. 2003 Page 7 of 11
`
`

`

`Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 8 of 11 PageID #: 318
`
`Requesting Party contends should be produced. The parties shall promptly
`
`meet and confer. If the parties are unable to resolve their dispute, then the
`
`Responding Party shall, within 14 days after service of the written statement
`
`upon it, serve upon the Requesting Party a written statement, in letter form
`
`or otherwise, which identifies (1) the requested items that will be disclosed,
`
`if any, and (2) the reasons why any requested items will not be disclosed.
`
`The Requesting Party may thereafter file a motion to compel.
`
`b. An opposed discovery related motion, or any response thereto, shall not
`
`exceed 7 pages. Attachments to a discovery related motion, or a response
`
`thereto, shall not exceed 5 pages. No further briefing is allowed absent a
`
`request or order from the Court.
`
`c. Prior to filing any discovery related motion, the parties must fully comply
`
`with the substantive and procedural conference requirements of Local Rule
`
`CV-7(h) and (i). Within 72 hours of the Court setting any discovery motion
`
`for a hearing, each party’s lead attorney (see Local Rule CV-11(a)) and local
`
`counsel shall meet and confer in person or by telephone, without the
`
`involvement or participation of other attorneys, in an effort to resolve the
`
`dispute without Court intervention.
`
`d. Counsel shall promptly notify the Court of the results of that meeting by
`
`filing a joint report of no more than two pages. Unless excused by the Court,
`
`each party’s lead attorney shall attend any discovery motion hearing set by
`
`the Court (though the lead attorney is not required to argue the motion).
`
`VARTA Ex. 2003 Page 8 of 11
`
`

`

`Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 9 of 11 PageID #: 319
`
`e. Any change to a party’s lead attorney designation must be accomplished by
`
`motion and order.
`
`f. Counsel are directed to contact the chambers of the undersigned for any
`
`“hot-line” disputes before contacting the Discovery Hotline provided by
`
`Local Rule CV-26(e). If the undersigned is not available, the parties shall
`
`proceed in accordance with Local Rule CV-26(e).
`
`10. No Excuses: A party is not excused from the requirements of this Discovery Order because
`
`it has not fully completed its investigation of the case, or because it challenges the sufficiency
`
`of another party’s disclosures, or because another party has not made its disclosures. Absent
`
`court order to the contrary, a party is not excused from disclosure because there are pending
`
`motions to dismiss, to remand or to change venue
`
`11. Filings: Only upon request from chambers shall counsel submit to the court courtesy copies
`
`of any filings.
`
`12. Proposed Stipulations by the Parties Regarding Discovery Orders:
`
`a. Service by Electronic Mail: The parties agree to accept service of discovery
`
`requests and responses, and other disclosures required by this Discovery
`
`Order or the Local Rules by electronic mail or through ECF, as appropriate.
`
`Where a document is too large to serve by email, the serving party shall
`
`send an email notice providing instructions for downloading the document
`
`via FTP or similar file transfer service.
`
`b. Privilege Log Limitations: Unless good cause is shown, and except as
`
`provided under P.R. 3-7, privileged documents or information created after
`
`VARTA Ex. 2003 Page 9 of 11
`
`

`

`Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 10 of 11 PageID #: 320
`
`the filing date of the earliest of these consolidated actions do not have to be
`
`identified by the parties on their respective privilege logs.
`
`c. Third Party Subpoenas: A party who serves a subpoena in any of these
`
`consolidated actions on a third party shall provide a copy to the other
`
`parties. A party who receives documents from a third party pursuant to a
`
`subpoena will reproduce those documents to the other party in its individual
`
`action within five (5) business days. Where reproduction of documents
`
`within five (5) business days is not possible, the party who received the
`
`documents will provide prompt notice to the other party in its individual
`
`action and will work in good faith to resolve the issue on a case-by-case
`
`basis.
`
`d. Federal Rule of Evidence 502(d): The Parties stipulate that Federal Rule of
`
`Evidence 502(d) shall apply to all discovery in this lawsuit – specifically,
`
`that any otherwise applicable privileges or protections are not waived by
`
`disclosure connected with this lawsuit.
`
`e. The parties agree to negotiate in good faith a proposed order governing the
`
`production of Electronically Stored Information.
`
`13. Standing Orders: The parties and counsel are charged with notice of and are required to fully
`
`comply with each of the Standing Orders of this Court. Such are posted on the Court’s website
`
`at http://www.txed.uscourts.gov/?q=court-annexed-mediation-plan. The substance of some
`
`such orders may be included expressly within this Discovery Order, while others (including
`
`the Court’s Standing Order Regarding Protection of Proprietary and/or Confidential
`
`Information to Be Presented to the Court During Motion and Trial Practice) are incorporated
`
`VARTA Ex. 2003 Page 10 of 11
`
`

`

`Case 2:20-cv-00051-JRG Document 51 Filed 06/10/20 Page 11 of 11 PageID #: 321
`
`herein by reference. All such standing orders shall be binding on the parties and counsel,
`
`regardless of whether they are expressly included herein or made a part hereof by reference.
`
`So Ordered this
`Jun 9, 2020
`
`VARTA Ex. 2003 Page 11 of 11
`
`

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