Case 6:20-cv-00075-ADA Document 26 Filed 06/11/20 Page 1 of 9
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`NO: WA:20-CV-00075-ADA
`
`§§§§§
`
`ECOFACTOR, INC.
`
`vs.
`
`GOOGLE LLC
`
`ORDER GOVERNING PROCEEDINGS – PATENT CASE
`
`This Order shall govern proceedings in this case. The following deadlines are hereby set:
`
`1. This case is SET for a telephonic Rule 16 Case Management Conference on Friday, June
`26, 2020 at 2:00 p.m.. Participants shall dial into the following number 5 minutes before
`the scheduled time: (866) 434-5269; access code 9678090. Lead counsel for each party,
`and all unrepresented parties, shall be present. Client representatives are welcome to
`attend, but such attendance is not required. In person attendance is permitted, but not
`required. Anyone planning to attend in person should so inform the Court by contacting
`chambers not later than two court days before the scheduled hearing so the Court can
`evaluate whether to hold the conference in the courtroom, or in chambers. The Court
`expects the parties to be prepared to discuss:
`
`a.
`
`b.
`
`c.
`
`d.
`
`an overview of the claims and defenses, including any unique issues the parties
`believe should be addressed at this stage of the case;
`
`issues involving the case schedule and potential amendments to the Court’s default
`scheduling order, including the date for the Markman Hearing;
`
`issues relating to claim construction, including whether a live tutorial would be of
`benefit to the Court;
`
`issues relating to discovery, including potential amendments to the Court’s default
`discovery limits or Protective Order; and,
`
`e. any other issues the parties believe would lead to the just, speedy and inexpensive
`determination of this action.
`
`2.
`
`(Not later than 7 days before the CMC). Plaintiff shall serve preliminary infringement
`contentions in the form of a chart setting forth where in the accused product(s) each
`element of the asserted claim(s) are found. Plaintiff shall also identify the priority date
`(i.e. the earliest date of invention) for each asserted claim and produce: (1) all documents
`evidencing conception and reduction to practice for each claimed invention, and (2) a
`copy of the file history for each patent in suit.
`
`3.
`
`(Not later than 3 business days before the CMC). Lead counsel for each party shall meet
`
`GOOGLE 1019
`
`

`

`Case 6:20-cv-00075-ADA Document 26 Filed 06/11/20 Page 2 of 9
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`and confer (either in person or by telephone), to discuss whether they believe the Court’s
`default Scheduling Order and default Discovery Limits are appropriate for this case, and
`any issues relating to the management of this case they intend to raise at the CMC.
`
`4.
`
`(Two weeks after the CMC). The Parties shall submit an agreed Scheduling Order. If the
`parties cannot agree, the parties shall submit a separate Joint Motion for entry of each
`Order briefly setting forth their respective positions on items where they cannot agree.
`Absent agreement of the parties, the Plaintiff shall be responsible for the timely
`submission of this and other Joint filings.
`
`5.
`
`(Two weeks after the CMC). Deadline for Motions to Transfer. The Court also adopts
`the following page limits and briefing schedule of Motions to Transfer:
`
`a. Opening - 15 pages
`
`b. Reponse - 15 pages, due 14 days after the Opening brief
`
`c. Reply - 5 pages, due 7 days after the Response brief
`
`6.
`
`(Seven weeks after the CMC). Defendant shall serve preliminary invalidity contentions
`in the form of (1) a chart setting forth where in the prior art references each element of the
`asserted claim(s) are found, (2) an identification of any limitations the Defendant
`contends are indefinite or lack written description under section 112, and (3) an
`identification of any claims the Defendant contends are directed to ineligible subject
`matter under section 101. Defendant shall also produce (1) all prior art referenced in the
`invalidity contentions, (2) technical documents, including software where applicable,
`sufficient to show the operation of the accused product(s), and (3) summary, annual sales
`information for the accused product(s) for the two years preceeding the filing of the
`Complaint,1 unless the parties agree to some other timeframe.
`
`DISCOVERY
`
`Except with regard to discovery necessary for claim construction, all other discovery is stayed
`until after the Markman hearing. Notwithstanding this general stay of discovery, the Court will
`permit limited discovery by agreement of the parties, or upon request, where exceptional
`circumstances warrant. For example, if discovery outside the United States is contemplated, the
`Court will be inclined to allow such discovery to commence before the Markman hearing.
`
`__________________________
`1With regard to expired patents, the sales information shall be provided for the two years
`preceding expiration.
`
`

`

`Case 6:20-cv-00075-ADA Document 26 Filed 06/11/20 Page 3 of 9
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`Following the Markman hearing, the following discovery limits will apply to this case. The
`Court will consider reasonable requests to increase these limits should circumstances warrant.
`
`Interrogatories: 30 per side2
`1.
`2. Requests for Admission: 45 per side
`3. Requests for Production: 75 per side
`4. Fact Depositions: 70 hours per side (for both party and non-party witnesses combined)
`5. Expert Depositions: 7 hours per report3
`
`Electronically Stored Information. As a preliminary matter, the Court will not require general
`search and production of email or other electronically stored information (ESI), absent a showing
`of good cause. If a party believes targeted email/ESI discovery is necessary, it shall propose a
`procedure identifying custodians and search terms it believes the opposing party should search.
`The opposing party can oppose, or propose an alternate plan. If the parties cannot agree, they
`shall contact chambers to schedule a call with the Court to discuss their respective positions.
`
`DISCOVERY DISPUTES
`
`A party may not file a Motion to Compel discovery unless: (1) lead counsel have met and
`conferred in good faith to try to resolve the dispute, and (2) the party has contacted the Court's
`law clerk (with opposing counsel) to arrange a telephone conference with the Court to summarize
`the dispute and the parties respective positions. After hearing from the parties, the Court will
`determine if further briefing is required.
`
`PROTECTIVE ORDER
`
`Pending entry of the final Protective Order, the Court issues the following interim Protective
`Order to govern the disclosure of confidential information in this matter:
`
`If any document or information produced in this matter is deemed confidential by the
`producing party and if the Court has not entered a protective order, until a protective
`order is issued by the Court, the document shall be marked “confidential” or with some
`other confidential designation (such as “Confidential – Outside Attorneys Eyes Only”) by
`the disclosing party and disclosure of the confidential document or information shall be
`limited to each party’s outside attorney(s) of record and the employees of such outside
`attorney(s).
`__________________________
`2 A "side" shall mean the plaintiff (or related plaintiffs suing together) on the one hand, and the
`defendant (or related defendants sued togther) on the other hand. In the event that the Court
`consolidates related cases for pretrial purposes, with regard to calculating limits imposed by this
`Order, a "side" shall be interpreted as if the cases were proceeding individually. For example, in
`consolidated cases the plaintiff may serve up to 30 interrogatories on each defendant, and each
`defendant may serve up to 30 interrogatories on the plaintiff.
`3 For example, if a single technical expert submits reports on both infringement and invalidity,
`he or she may be deposed for up to 14 hours in total.
`
`

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`Case 6:20-cv-00075-ADA Document 26 Filed 06/11/20 Page 4 of 9
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`If a party is not represented by an outside attorney, disclosure of the confidential
`document or information shall be limited to one designated “in house” attorney, whose
`identity and job functions shall be disclosed to the producing party 5 days prior to any
`such disclosure, in order to permit any motion for protective order or other relief
`regarding such disclosure. The person(s) to whom disclosure of a confidential document
`or information is made under this local rule shall keep it confidential and use it only for
`purposes of litigating the case.
`
`CLAIM CONSTRUCTION ISSUES
`
`Terms for Construction. The Court does not have a specific limit on the number of asserted
`claims or claim terms to be construed; however, the Court encourages the parties to focus on
`their top ten claim terms in order of importance. In cases with an unusually large number of
`patents or asserted claims, the Court may revisit this topic and will be open to suggestions from
`the parties.
`
`Claim Construction Briefing. The Court will require simultaneous claim construction briefing
`with the following default page limits; however, where exceptional circumstances warrant, the
`Court will consider reasonable requests to adjust these limits. These page limits shall also apply
`collectively for consolidated cases; however, the Court will consider reasonable requests to
`adjust page limits in consolidated cases where circumstances warrant. In addition, the Court is
`very familiar with the law of claim construction and encourages the parties to forego lengthy
`recitations of the underlying legal authorities and instead focus on the substantive issues unique
`to each case.
`
`Unless otherwise agreed by the parties, all simultaneeous filings will take place at 5:00 p.m. CT.
`
`Page Limits for Markman Briefs
`
`Brief
`Opening
`
`1-2 Patents
`20 pages
`
`3-5 Patents
`30 pages
`
`Response
`
`20 pages
`
`30 pages
`
`Reply
`
`10 pages
`
`15 pages
`
`More than 5 patents
`30 pages, plus 5
`additional pages for
`each patent over 5 up
`to a maximum of 45
`pages
`30 pages, plus 5
`additional pages for
`each patent over 5 up
`to a maximum of 45
`pages
`15 pages, plus 2
`additional pages for
`each patent over 5 up
`to a maximum of 21
`pages
`
`

`

`Case 6:20-cv-00075-ADA Document 26 Filed 06/11/20 Page 5 of 9
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`Conduct of the Markman Hearing. The Court intends to set aside one half day for the
`Markman hearing; however, the Court is open to reserving more or less time, depending on the
`complexity of the case and input from the parties. The Court is open to the presentation of live
`technology tutorials when they may be of benefit. The parties may also submit tutorials in
`electronic form by the deadline for submission of the Joint Claim Construction Statement. If a
`party intends to present a live tutorial, it should be (1) directed to the underlying technology
`(rather than argument related to infringement or validity), and (2) limited to 15 minutes per side
`at the start of the Markman hearing. For the Court's convenience, the tutorial may be recorded,
`but will not be part of the record. Parties may not rely on or cite to the tutorial in other aspects of
`the litigation.
`
`The Court will consider the parties suggestions on the order of argument at the Markman
`hearing. However, if the parties do not suggest a different procedure, the Court will allow the
`Plaintiff to pick the first term and then alternate by term. As a general rule, if one side proposes
`“plain and ordinary meaning” as its construction or asserts that a term is indefinite, the other
`party shall go first.
`
`GENERAL ISSUES
`
`1. The Court does not have a limit on the number of motions for summary judgment (MSJs);
`however, absent leave of Court, the cumulative page limit for Opening Briefs for all MSJs is
`40 pages per side.
`
`2. The Court encourages the submission of Markman briefs via audio file so that the Court can
`listen to the arguments. The recordings shall be made in a neutral fashion, shall be verbatim
`transcriptions without additional colloquy (except that citations and legal authority sections
`need not be included), and each such file shall be served on opposing counsel. The Court
`does not have a preference for the manner of recording and has found automated software
`recordings, as well as attorney recordings, to be more than satisfactory. Austio files shall be
`submitted via USB drive, Dropbox (not another cloud-storage), or email to the law clerk
`(with a cc to opposing counsel) and should be submitted in mp3 format.
`
`3. The Court will entertain reasonable requests to streamline the case schedule and discovery
`and encourages the parties to contact the Court's law clerk (with opposing counsel) to arrange
`a call with the Court when such interaction might help streamline the case.
`
`
`
`ORDERED this 11th day of June, 2020.
`
`______________________________
`ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
`
`

`

`Case 6:20-cv-00075-ADA Document 26 Filed 06/11/20 Page 6 of 9
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`APPENIDX A – DEFAULT SCHEDULE
`
`Deadline
`
`Item
`
`7 days before CMC
`
`Plaintiff serves preliminary4 infringement contentions in the
`form of a chart setting forth where in the accused product(s)
`each element of the asserted claim(s) are found. Plaintiff shall
`also identify the earliest priority date (i.e. the earliest date of
`invention) for each asserted claim and produce: (1) all
`documents evidencing conception and reduction to practice
`for each claimed invention, and (2) a copy of the file history
`for each patent in suit.
`
`2 weeks after CMC
`
`Deadline for Motions to Transfer
`
`7 weeks after CMC
`
`Defendant serves preliminary invalidity contentions in the
`form of (1) a chart setting forth where in the prior art
`references each element of the asserted claim(s) are found, (2)
`an identification of any limitations the Defendant contends are
`indefinite or lack written description under section 112, and
`(3) an identification of any claims the Defendant contends are
`directed to ineligible subject matter under section 101.
`Defendant shall also produce (1) all prior art referenced in the
`invalidity contentions, (2) technical documents, including
`software where applicable, sufficient to show the operation of
`the accused product(s), and (3) summary, annual sales
`information for the accused product(s) for the prior two years,
`unless the parties agree to some other timeframe.
`
`9 weeks after CMC
`
`Parties exchange claim terms for construction.
`
`11 weeks after CMC
`
`Parties exchange proposed claim constructions.
`
`_________________________
`4The parties may amend preliminary infringement contentions and preliminary invalidity contentions without leave
`of the court so long as counsel certifies that it undertook reasonable efforts to prepare its preliminary contentions and
`the amendment is based on material identified after those preliminary contentions were served, and should do so
`seasonably upon identifying any such material. Any amendment to add patent claims requires leave of court so that
`the Court can address any scheduling issues.
`
`

`

`Case 6:20-cv-00075-ADA Document 26 Filed 06/11/20 Page 7 of 9
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`12 weeks after CMC
`
`13 weeks after CMC
`
`14 weeks after CMC
`
`Parties disclose extrinsic evidence. The parties shall disclose
`any extrinsic evidence, including the identity of any expert
`witness they may rely upon with respect to claim construction
`or indefiniteness. With respect to any expert identified, the
`parties shall also provide a summary of the witness’s expected
`testimony including the opinions to be expressed and a general
`description of the basis and reasons therefore. A failure to
`summarize the potential expert testimony in a good faith,
`informative fashion may result in the exclusion of the
`proffered testimony. With respect to items of extrinsic
`evidence, the parties shall identify each such item by
`production number or produce a copy of any such item if not
`previously produced.
`Deadline to meet and confer to narrow terms in dispute and
`exchange revised list of terms/constructions.
`
`Parties file Opening claim construction briefs, including any
`arguments that any claim terms are indefinite.
`
`17 weeks after CMC
`
`Parties file Responsive claim construction briefs.
`
`19 weeks after CMC
`
`Parties file Reply claim construction briefs.
`
`20 weeks after CMC
`
`Parties submit Joint Claim Construction Statement. In
`addition to filing, the parties shall jointly submit, via USB
`drive, cloud-storage, or email to the law clerk pdf versions of
`all as-filed briefing and exhibits. Absent agreement of the
`parties, the Plaintiff shall be responsible for the timely
`submission of this and other Joint filings.
`
`24 weeks after CMC (or as
`soon as practicable)
`
`Markman Hearing at [9:00 a.m. or 1:00 p.m.]
`
`1 week after Markman
`hearing
`
`Fact Discovery opens; deadline to serve Initial Disclosures per
`Rule 26(a).
`
`6 weeks after Markman
`hearing
`
`8 weeks after Markman
`hearing
`
`Deadline to add parties.
`
`Deadline to serve Final Infringement and Invalidity
`Contentions. After this date, leave of Court is required for any
`amendment to Infringement or Invalidity contentions. This
`deadline does not relieve the Parties of their obligation to
`seasonably amend if new information is identified after initial
`contentions.
`
`

`

`Case 6:20-cv-00075-ADA Document 26 Filed 06/11/20 Page 8 of 9
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`12 weeks after Markman
`hearing
`
`Deadline to amend pleadings. A motion is not required unless
`the amendment adds patents or claims.
`
`30 weeks after Markman
`hearing
`
`31 weeks after Markman
`hearing
`
`35 weeks after Markman
`hearing
`
`38 weeks after Markman
`hearing
`
`39 weeks after Markman
`hearing
`
`40 weeks after Markman
`hearing
`
`Close of Fact Discovery.
`
`Opening Expert Reports.
`
`Rebuttal Expert Reports.
`
`Close of Expert Discovery.
`
`Deadline to meet and confer to discuss narrowing the number
`of claims asserted and prior art references at issue. The parties
`shall file a Joint Report within 5 business days regarding the
`results of the meet and confer.
`
`Dispositive motion deadline and Daubert motion deadline.
`
`42 weeks after Markman
`hearing
`
`Serve Pretrial Disclosures (jury instructions, exhibits lists,
`witness lists, discovery and deposition designations).
`
`44 weeks after Markman
`hearing
`
`Serve objections to pretrial disclosures/rebuttal disclosures.
`
`45 weeks after Markman
`hearing
`
`Serve objections to rebuttal disclosures and File Motions in
`limine.
`
`46 weeks after Markman
`hearing
`
`File Joint Pretrial Order and Pretrial Submissions (jury
`instructions, exhibits lists, witness lists, discovery and
`deposition designations); file oppositions to motions in limine
`
`47 weeks after Markman
`hearing
`
`Deadline to meet and confer regarding remaining objections
`and disputes on motions in limine.
`
`3 business days before
`Final Pretrial Conference
`
`File joint notice identifying remaining objections to pretrial
`disclosures and disputes on motions in limine.
`
`

`

`Case 6:20-cv-00075-ADA Document 26 Filed 06/11/20 Page 9 of 9
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`49 weeks after Markman
`hearing (or as soon as
`practicable)
`
`52 weeks after Markman
`hearing (or as soon as
`practicable)5
`
`Final Pretrial Conference. The Court expects to set this date
`at the conclusion of the Markman Hearing.
`
`Jury Selection/Trial. The Court expects to set this date at the
`conclusion of the Markman Hearing.
`
`________________________
`5If the actual trial date materially differs from the Court's default schedule, the Court will
`consider reasonable amendments to the case schedule post-Markman that are consistent with the
`Court's default deadlines in light of the actual trial date.
`
`

`

`
`
`
`Addendum to Schedule filed July 16, 2020
`
`(This page is not part of the Court’s record)
`
`

`

`Case 6:20-cv-00075-ADA Document 33 Filed 07/16/20 Page 1 of 2
`
`EcoFactor Schedules
`
`—_ Pro » osed date
`Submit to Court a eed u n schedulinr order
`7-13-2020
`Deadline for Motions to Transfer
`7-13-2020
`
`8-17-2020
`
`9-1-2020
`
`9-15-2020
`
`9-22—2020
`
`Defendant serves preliminary invalidity contentions in the form of (1)
`a chart setting forth where in the prior art references each element of
`the asserted claim(s) are found, (2) an identification of any limitations
`the Defendant contends are indefinite or lack written description under
`section 112, and
`
`(3) an identification of any claims the Defendant contends are directed
`to ineligible subject matter under section 101. Defendant shall also
`produce (1) all prior art referenced in the invalidity contentions, (2)
`technical documents, including software where applicable, sufficient to
`show the operation of the accused product(s), and (3) summary, annual
`sales information for the accused product(s) for the prior two years,
`unless the parties agree to some other tirneframe.
`Parties exchan e claim terms for construction.
`
`Parties exchan - e ro uosed claim constructions.
`
`Parties disclose extrinsic evidence. The parties shall disclose any
`extrinsic evidence, including the identity of any expert witness they
`may rely upon with respect to claim construction or indefiniteness.
`With respect to any expert identified, the parties shall also provide a
`summary of the witness’s expected testimony including the opinions to
`be expressed and a general description of the basis and reasons
`therefore. A failure to summarize the potential expert testimony in a
`good faith, informative fashion may result in the exclusion of the
`proffered testimony. With respect to items of extrinsic evidence, the
`parties shall identify each such item by production number or produce
`of an such item if not reviousl
`roduced.
`
`12—8—2020
`
`Deadline to meet and confer to narrow terms in dispute and exchange
`revised list of terms-constructions.
`
`Parties file Opening claim construction briefs, including any arguments
`that any claim terms are indefinite.
`Parties file Res u nsive claim construction briefs.
`
`Parties file R 1 claim construction briefs.
`
`Parties submit Joint Claim Construction Statement. In addition to
`
`9-29-2020
`
`10-6—2020
`
`10-27-2020
`
`11-10-2020
`
`11-17-2020
`
`filing, the parties shall jointly submit, via USB drive, cloud—storage,
`or email to the law clerk pdf versions of all as-filed briefing and
`exhibits. Absent agreement of the parties, the Plaintiff shall be
`responsible for the timely submission of this and other Joint filings.
`
`Technology Tutorial DUE
`
`Court will provide preliminary claim constructions (ideally by 5 PM
`
`

`

`Case 6:20-cv-00075-ADA Document 33 Filed 07/16/20 Page 2 of 2
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`__-_
`
`Fact Discovery opens; deadline to serve Initial Disclosures per Rule
`26 a .
`
`Deadline to add narties.
`
`Deadline to serve Final Infringement and Invalidity Contentions. After
`this date, leave of Court is required for any amendment to Infringement
`or Invalidity contentions. This deadline does not relieve the Parties of
`their obligation to seasonably amend if new information is identified
`after initial contentions.
`
`Deadline to amend pleadings. A motion is not required unless the
`amendment adds patents or claims.
`Close of Fact Discove
`.
`
`noenin EXnert Renorts.
`
`Rebuttal Ex n ert Re n orts.
`
`Close of Ex n ert Discove
`
`.
`
`12-16-2020
`
`1-20-2021
`
`2-3-2021
`
`3-3-2021
`
`7-7-202 1
`
`8-11-2021
`
`9—1-2021
`
`9-8—2021
`
`9—15-2021
`
`9-29-2021
`
`10-13—2021
`10-20-2021
`
`10-27—2021
`
`11-3—2021
`
`11-12—2021
`
`11—17-2021
`
`7—14-202 l
`
`Deadline to meet and confer to discuss narrowing the number of claims
`asserted and prior art references at issue. The parties shall file a Joint
`Report within 5 business days regarding the results of the meet and
`confer.
`
`Dis 0nsitive motion deadline and Daubert motion deadline.
`
`Serve Pretrial Disclosures (jury instructions, exhibits lists, witness lists,
`discove
`and de nosition desi u ations
`Serve ob'ections to retrial disclosures-rebuttal disclosures.
`Serve ob'ections to rebuttal disclosures and File Motions in Iimine.
`
`File Joint Pretrial Order and Pretrial Submissions (jury instructions,
`exhibits lists, witness lists, discovery and deposition designations);
`file 0 n n nsitions to motions in Iimine
`
`Deadline to meet and confer regarding remaining objections and
`dis nutes on motions in limine.
`
`File joint notice identifying remaining objections to pretrial disclosures
`and dis nutes on motions in Iimine.
`
`Final Pretrial Conference. The Court expects to set this date at the
`conclusion of the Markman Hearin ' .
`
`Jury Selection-Trial. The Court expects to set this date at the conclusion
`of the Mariana" Hearinn .
`
`12-6-2021
`
`