`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`FIRTIVA CORPORATION
`
`
`
`v.
`
`FUNIMATION GLOBAL GROUP, LLC
`
`§
`§
`§
`§
`§
`
`Case No. 2:21-CV-0111-JRG-RSP
`
`DOCKET CONTROL ORDER
`
`In accordance with the scheduling conference held in this case, it is hereby ORDERED
`
`that the following schedule of deadlines is in effect until further order of this Court:
`
`(cid:36)(cid:48)(cid:40)(cid:49)(cid:39)(cid:40)(cid:39)
`(cid:39)(cid:36)(cid:55)(cid:40)
`
`(cid:50)(cid:53)(cid:44)(cid:42)(cid:44)(cid:49)(cid:36)(cid:47)(cid:3)(cid:39)(cid:36)(cid:55)(cid:40)
`
`May 23, 2022
`
`April 25, 2022
`
`April 19, 2022
`
`April 11, 2022
`
`*Jury Selection – 9:00 a.m. in Marshall,
`Texas(cid:3)(cid:69)(cid:72)(cid:73)(cid:82)(cid:85)(cid:72)(cid:3)(cid:45)(cid:88)(cid:71)(cid:74)(cid:72)(cid:3)(cid:42)(cid:76)(cid:79)(cid:86)(cid:87)(cid:85)(cid:68)(cid:83)
`
`* If a juror questionnaire is to be used, an
`editable (in Microsoft Word format)
`questionnaire shall be jointly submitted to
`the Deputy Clerk in Charge by this date.1
`
`in
`*Pretrial Conference – 9:00 a.m.
`Marshall, Texas before Judge Roy Payne
`
`*Notify Court of Agreements Reached
`During Meet and Confer
`
`The parties are ordered to meet and confer
`on any outstanding objections or motions
`in limine. The parties shall advise the
`Court of any agreements reached no later
`than 1:00 p.m. three (3) business days
`before the pretrial conference.
`
`1 The Parties are referred to the Court’s Standing Order Regarding Use of Juror Questionnaires in
`Advance of Voir Dire.
`
`Petitioner Samsung Ex-1043, 0001
`
`
`
`Case 2:21-cv-00111-JRG-RSP Document 23 Filed 08/02/21 Page 2 of 7 PageID #: 138
`
`April 11, 2022
`
`April 4, 2022
`
`*File Joint Pretrial Order, Joint Proposed
`Jury Instructions, Joint Proposed Verdict
`Form, Responses to Motions in Limine,
`Updated Exhibit Lists, Updated Witness
`Lists,
`and
`Updated
`Deposition
`Designations
`
`for Daily
`*File Notice of Request
`Transcript or Real Time Reporting.
`
`If a daily transcript or real time reporting of
`court proceedings is requested for trial, the
`party or parties making said request shall
`file a notice with the Court and e-mail the
`Court Reporter, Shawn McRoberts, at
`shawn_mcroberts@txed.uscourts.gov.
`
`March 28, 2022
`
`File Motions in Limine
`
`The parties shall limit their motions in
`limine
`to
`issues
`that
`if
`improperly
`introduced at trial would be so prejudicial
`that the Court could not alleviate the
`prejudice
`by
`giving
`appropriate
`instructions to the jury.
`
`Serve Objections
`Disclosures
`
`to Rebuttal Pretrial
`
`Serve Objections to Pretrial Disclosures;
`and Serve Rebuttal Pretrial Disclosures
`
`Serve Pretrial Disclosures (Witness List,
`Deposition Designations, and Exhibit List)
`by the Party with the Burden of Proof
`
`March 28, 2022
`
`March 21, 2022
`
`March 7, 2022
`
`- 2 -
`
`Petitioner Samsung Ex-1043, 0002
`
`
`
`Case 2:21-cv-00111-JRG-RSP Document 23 Filed 08/02/21 Page 3 of 7 PageID #: 139
`
`February 28, 2022
`
`February 14, 2022
`
`to Dispositive Motions
`*Response
`(including Daubert Motions). Responses to
`dispositive motions that were filed prior to
`the dispositive motion deadline, including
`Daubert Motions,
`shall be due
`in
`accordance with Local Rule CV-7(e), not
`to exceed the deadline as set forth in this
`Docket Control Order.2 Motions
`for
`Summary Judgment shall comply with
`Local Rule CV-56.
`
`*File Motions to Strike Expert Testimony
`(including
`Daubert
`Motions)
`
`No motion to strike expert testimony
`(including a Daubert motion) may be filed
`after this date without leave of the Court.
`
`February 14, 2022
`
`*File Dispositive Motions
`
`No dispositive motion may be filed after
`this date without leave of the Court.
`
`Motions shall comply with Local Rule CV-
`56 and Local Rule CV-7. Motions to
`extend page limits will only be granted in
`exceptional circumstances. Exceptional
`circumstances
`require more
`than
`agreement among the parties.
`
`February 7, 2022
`
`Deadline to Complete Expert Discovery
`
`January 24, 2022
`
`January 3, 2022
`
`Serve Disclosures for Rebuttal Expert
`Witnesses
`
`Deadline to Complete Fact Discovery and
`File Motions to Compel Discovery
`
`2 The parties are directed to Local Rule CV-7(d), which provides in part that “[a] party’s failure to
`oppose a motion in the manner prescribed herein creates a presumption that the party does not
`controvert the facts set out by movant and has no evidence to offer in opposition to the motion.”
`If the deadline under Local Rule CV 7(e) exceeds the deadline for Response to Dispositive
`Motions, the deadline for Response to Dispositive Motions controls.
`
`- 3 -
`
`Petitioner Samsung Ex-1043, 0003
`
`
`
`Case 2:21-cv-00111-JRG-RSP Document 23 Filed 08/02/21 Page 4 of 7 PageID #: 140
`
`January 3, 2022
`
`December 27, 2021
`
`December 3, 2021
`
`November 19, 2021
`
`November 12, 2021
`
`November 5, 2021
`
`October 22, 2021
`
`November 5, 2021
`
`October 22, 2021
`
`October 12, 2021
`
`October 8, 2021
`
`Serve Disclosures for Expert Witnesses by
`the Party with the Burden of Proof
`
`Comply with P.R. 3-7 (Opinion of Counsel
`Defenses)
`
`*Claim Construction Hearing – 9:00 a.m.
`in Marshall, Texas before Judge Roy
`Payne
`
`*Comply with P.R. 4-5(d) (Joint Claim
`Construction Chart)
`
`*Comply with P.R. 4-5(c) (Reply Claim
`Construction Brief)
`
`Comply with P.R. 4-5(b) (Responsive
`Claim Construction Brief)
`
`Comply with P.R. 4-5(a) (Opening Claim
`Construction Brief) and Submit Technical
`Tutorials (if any)
`
`Good cause must be shown to submit
`technical tutorials after the deadline to
`comply with P.R. 4-5(a).
`
`to Substantially Complete
`Deadline
`Document Production and Exchange
`Privilege Logs
`
`Counsel are expected to make good faith
`efforts to produce all required documents
`as soon as they are available and not wait
`until the substantial completion deadline.
`
`to
`Comply with P.R. 4-4 (Deadline
`Complete Claim Construction Discovery)
`
`October 1, 2021
`
`File Response to Amended Pleadings
`
`September 17, 2021
`
`*File Amended Pleadings
`
`It is not necessary to seek leave of Court to
`amend pleadings prior to this deadline
`unless the amendment seeks to assert
`additional patents.
`
`- 4 -
`
`Petitioner Samsung Ex-1043, 0004
`
`
`
`Case 2:21-cv-00111-JRG-RSP Document 23 Filed 08/02/21 Page 5 of 7 PageID #: 141
`
`September 24, 2021
`
`September 10, 2021
`
`September 3, 2021
`
`August 20, 2021
`
`August 13, 2021
`
`July 30, 2021
`
`September 9, 2021
`
`August 26, 2021
`
`September 9, 2021
`
`August 26, 2021
`
`August 5, 2021
`
`July 29, 2021
`
`Comply with P.R. 4-3 (Joint Claim
`Construction Statement)
`
`(Exchange
`Comply with P.R. 4-2
`Preliminary Claim Constructions)
`
`Comply with P.R. 4-1 (Exchange Proposed
`Claim Terms)
`
`Comply with Standing Order Regarding
`Subject-Matter Eligibility Contentions3
`
`Comply with P.R. 3-3 & 3-4 (Invalidity
`Contentions)
`
`*File Proposed Protective Order and
`Comply with Paragraphs 1 & 3 of the
`Discovery Order (Initial and Additional
`Disclosures)
`
`The Proposed Protective Order shall be
`filed as a separate motion with the caption
`indicating whether or not the proposed
`order is opposed in any part.
`
`*File Proposed Docket Control Order and
`Proposed Discovery Order
`
`The Proposed Docket Control Order and
`Proposed Discovery Order shall be filed as
`separate motions with
`the
`caption
`indicating whether or not the proposed
`order is opposed in any part.
`
`September 17, 2021
`
`July 22, 2021
`
`Join Additional Parties
`
`July 1, 2021
`
`Comply with P.R. 3-1 & 3-2 (Infringement
`Contentions)
`
`3_http://www.txed.uscourts.gov/sites/default/files/judgeFiles/EDTX%20Standing%20Order%20
`Re%20Subject%20Matter%20Eligibility%20Contentions%20.pdf
`[https://perma.cc/RQN2-
`YU5P]
`
`- 5 -
`
`Petitioner Samsung Ex-1043, 0005
`
`
`
`Case 2:21-cv-00111-JRG-RSP Document 23 Filed 08/02/21 Page 6 of 7 PageID #: 142
`
`(*) indicates a deadline that cannot be changed without showing good cause. Good cause is
`not shown merely by indicating that the parties agree that the deadline should be changed.
`
`ADDITIONAL REQUIREMENTS
`
`Mediation: While certain cases may benefit from mediation, such may not be appropriate
`for every case. The Court finds that the Parties are best suited to evaluate whether mediation will
`benefit the case after the issuance of the Court’s claim construction order. Accordingly, the Court
`ORDERS the Parties to file a Joint Notice indicating whether the case should be referred for
`mediation within fourteen days of the issuance of the Court’s claim construction order. As a
`part of such Joint Notice, the Parties should indicate whether they have a mutually agreeable
`mediator for the Court to consider. If the Parties disagree about whether mediation is appropriate,
`the Parties should set forth a brief statement of their competing positions in the Joint Notice.
`
`Summary Judgment Motions, Motions to Strike Expert Testimony, and Daubert
`Motions: For each motion, the moving party shall provide the Court with two (2) hard copies of
`the completed briefing (opening motion, response, reply, and if applicable, sur-reply), excluding
`exhibits, in D-three-ring binders, appropriately tabbed. All documents shall be single-sided and
`must include the CM/ECF header. These copies shall be delivered to the Court within three (3)
`business days after briefing has completed. For expert-related motions, complete digital copies of
`the relevant expert report(s) and accompanying exhibits shall be submitted on a single flash drive
`to the Court. Complete digital copies of the expert report(s) shall be delivered to the Court no later
`than the dispositive motion deadline.
`
`Indefiniteness: In lieu of early motions for summary judgment, the parties are directed to
`include any arguments related to the issue of indefiniteness in their Markman briefing, subject to
`the local rules’ normal page limits.
`
`Lead Counsel: The Parties are directed to Local Rule CV-11(a)(1), which provides that
`
`“[o]n the first appearance through counsel, each party shall designate a lead attorney on the
`pleadings or otherwise.” Additionally, once designated, a party’s lead attorney may only be
`changed by the filing of a Motion to Change Lead Counsel and thereafter obtaining from the Court
`an Order granting leave to designate different lead counsel.
`
`Motions for Continuance: The following excuses will not warrant a continuance nor
`justify a failure to comply with the discovery deadline:
`
`(a)
`
`(b)
`
`(c)
`
`The fact that there are motions for summary judgment or motions to dismiss pending;
`
`The fact that one or more of the attorneys is set for trial in another court on the same day,
`unless the other setting was made prior to the date of this order or was made as a special
`provision for the parties in the other case;
`
`The failure to complete discovery prior to trial, unless the parties can demonstrate that it
`was impossible to complete discovery despite their good faith effort to do so.
`
`- 6 -
`
`Petitioner Samsung Ex-1043, 0006
`
`
`
`Case 2:21-cv-00111-JRG-RSP Document 23 Filed 08/02/21 Page 7 of 7 PageID #: 143
`
`Amendments to the Docket Control Order (“DCO”): Any motion to alter any date on
`the DCO shall take the form of a motion to amend the DCO. The motion to amend the DCO shall
`include a proposed order that lists all of the remaining dates in one column (as above) and the
`proposed changes to each date in an additional adjacent column (if there is no change for a date
`the proposed date column should remain blank or indicate that it is unchanged). In other words,
`the DCO in the proposed order should be complete such that one can clearly see all the remaining
`deadlines and the changes, if any, to those deadlines, rather than needing to also refer to an earlier
`version of the DCO.
`
`Proposed DCO: The Parties’ Proposed DCO should also follow the format described
`above under “Amendments to the Docket Control Order (‘DCO’).”
`
`Joint Pretrial Order: In the contentions of the Parties included in the Joint Pretrial Order,
`the Plaintiff shall specify all allegedly infringed claims that will be asserted at trial. The Plaintiff
`shall also specify the nature of each theory of infringement, including under which subsections of
`35 U.S.C. § 271 it alleges infringement, and whether the Plaintiff alleges divided infringement or
`infringement under the doctrine of equivalents. Each Defendant shall indicate the nature of each
`theory of invalidity, including invalidity for anticipation, obviousness, subject-matter eligibility,
`written description, enablement, or any other basis for invalidity. The Defendant shall also specify
`each prior art reference or combination of references upon which the Defendant shall rely at trial,
`with respect to each theory of invalidity. The contentions of the Parties may not be amended,
`supplemented, or dropped without leave of the Court based upon a showing of good cause.
`
`SIGNED this 2nd day of August, 2021.
`
`____________________________________
`________ ___________________ _________________ __________________________
`ROY S. PAYNE
`ROY S. PAYAYAYAYAYNE
`UNITED STATES MAGISTRATE JUDGE
`
`- 7 -
`
`Petitioner Samsung Ex-1043, 0007
`
`