Case 3:20-cv-06754-WHA Document 67 Filed 10/08/21 Page 1 of 9
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`GOOGLE LLC,
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`Plaintiff,
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`v.
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`SONOS, INC.,
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`Defendant.
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`No. C 20-06754 WHA
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`CASE MANAGEMENT ORDER,
`REFERENCE TO MAGISTRATE
`JUDGE FOR DISCOVERY
`SUPERVISION
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`After a case management conference, the Court enters the following order pursuant to
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`Rule 16 of the Federal Rules of Civil Procedure (“FRCP”) and Civil Local Rule 16-10:
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`1. No motions under Rule 12 or 56 shall be filed without the advance permission from the
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`undersigned judge. Such permission may be sought via a three-page precis summarizing
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`the proposed motion and explaining how it will advance the resolution of the overall
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`case. Within 48 hours, the other side may submit a response (also limited to three pages).
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`No footnotes, attachments, enclosures or declarations shall be permitted for either
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`submission.
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`2. All initial disclosures under FRCP 26 must be completed by NOVEMBER 12, 2021, on
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`pain of preclusion, including full and faithful compliance with FRCP 26(a)(1)(A)(iii).
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`3.
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`Leave to add any new parties or to amend pleadings must be sought by DECEMBER 23,
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`2021.
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`SONOS EXHIBIT 2003
`GOOGLE v. SONOS (IPR2021-01563)
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`Case 3:20-cv-06754-WHA Document 67 Filed 10/08/21 Page 2 of 9
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`4.
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`The private mediator must be selected and on calendar by DECEMBER 3, 2021, and the
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`5.
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`6.
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`mediation must be completed by MAY 27, 2022.
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`The non-expert discovery cut-off date shall be NOVEMBER 30, 2022.
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`The deadline for producing opinions of counsel under Patent Local Rule 3-7 shall be
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`28 calendar days before the non-expert discovery cut-off, irrespective of the timeline in
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`said rule.
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`7.
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`Subject to the exception in the next paragraph, the last date for designation of expert
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`testimony and disclosure of full expert reports under FRCP 26(a)(2) as to any issue on
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`which a party has the burden of proof (“opening reports”) shall be NOVEMBER 30, 2022.
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`Within fourteen calendar days of said deadline, all other parties must disclose any
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`expert reports on the same issue (“opposition reports”). Within seven calendar days
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`thereafter, the party with the burden of proof must disclose any reply reports rebutting
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`specific material in opposition reports. Reply reports must be limited to true rebuttal and
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`should be very brief. They should not add new material that should have been placed in
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`the opening report and the reply material will ordinarily be reserved for the rebuttal or
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`sur-rebuttal phase of the trial. If the party with the burden of proof neglects to make a
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`timely disclosure, the other side, if it wishes to put in expert evidence on the same issue
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`anyway, must disclose its expert report within the fourteen-day period. In that event, the
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`party with the burden of proof on the issue may then file a reply expert report within the
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`seven-day period, subject to possible exclusion for “sandbagging” and, at all events, any
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`such reply material may be presented at trial only after, if at all, the other side actually
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`presents expert testimony to which the reply is responsive. The cutoff for all expert
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`discovery shall be fourteen calendar days after the deadline for reply reports. In aid of
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`preparing an opposition or reply report, a responding party may depose the adverse expert
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`sufficiently before the deadline for the opposition or reply report so as to use the
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`testimony in preparing the response. Experts must make themselves readily available for
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`such depositions. Alternatively, the responding party can elect to depose the expert later
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`in the expert-discovery period. An expert, however, may be deposed only once unless
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`Case 3:20-cv-06754-WHA Document 67 Filed 10/08/21 Page 3 of 9
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`the expert is used for different opening and/or opposition reports, in which case the
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`expert may be deposed independently on the subject matter of each report. At least
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`28 calendar days before the due date for opening reports, each party shall serve a list of
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`issues on which it will offer any expert testimony in its case-in-chief (including from
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`non-retained experts). This is so that all parties will be timely able to obtain counter-
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`experts on the listed issues and to facilitate the timely completeness of all expert reports.
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`Failure to so disclose may result in preclusion.
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`8. As to damages studies, the cut-off date for past damages will be as of the expert report
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`(or such earlier date as the expert may select). In addition, the experts may try to project
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`future damages (i.e., after the cut-off date) if the substantive standards for future damages
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`can be met. With timely leave of Court or by written stipulation, the experts may update
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`their reports (with supplemental reports) to a date closer to the time of trial.
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`9. At trial, the opening testimony of experts on direct examination will be limited to the
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`matters disclosed in their reports (and any reply reports may be covered only on rebuttal
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`or sur-rebuttal). Omitted material may not ordinarily be added on direct examination.
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`This means the reports must be complete and sufficiently detailed. Illustrative
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`animations, diagrams, charts and models may be used on direct examination only if they
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`were part of the expert’s report, with the exception of simple drawings and tabulations
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`that plainly illustrate what is already in the report, which can be drawn by the witness at
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`trial or otherwise shown to the jury. If cross-examination fairly opens the door, however,
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`an expert may go beyond the written report on cross-examination and/or redirect
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`examination. By written stipulation, of course, all sides may relax these requirements.
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`For trial, an expert must learn and testify to the full amount of billing and unbilled time
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`by him or his firm on the engagement.
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`10. To head off a recurring problem, experts lacking percipient knowledge should avoid
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`vouching for the credibility of witnesses, i.e., whose version of the facts in dispute is
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`correct. This means that they may not, for example, testify that based upon a review of
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`fact depositions and other material supplied by counsel, a police officer did (or did not)
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`violate standards. Rather, the expert should be asked for his or her opinion based —
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`explicitly — upon an assumed fact scenario. This will make clear that the witness is not
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`attempting to make credibility and fact findings and thereby to invade the province of the
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`jury. Of course, a qualified expert can testify to relevant customs, usages, practices,
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`recognized standards of conduct, and other specialized matters beyond the ken of a lay
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`jury. This subject is addressed further in the trial guidelines referenced below.
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`11. Counsel need not request a motion hearing date and may notice non-discovery motions
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`for any Thursday (except holidays) at 8:00 a.m. The Court sometimes rules on the
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`papers, issuing a written order and vacating the hearing. If a written request for oral
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`argument is filed before a ruling, stating that a lawyer of four or fewer years out of law
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`school will conduct the oral argument or at least the lion's share, then the Court will hear
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`oral argument, believing that young lawyers need more opportunities for appearances
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`than they usually receive. Unless discovery supervision has been referred to a magistrate
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`judge, discovery motions should be as per the supplemental order referenced below.
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`12. The last day to file dispositive motions shall be JANUARY 26, 2023.
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`13. The final pretrial conference shall be held on MAY 3, 2023, at 2:00 p.m. Although the
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`Court encourages argument and participation by younger attorneys, lead trial counsel
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`must attend the final pretrial conference. For the form of submissions for the final
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`pretrial conference and trial, please see below.
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`14. A jury shall begin on MAY 10, 2023, at 7:30 a.m., in Courtroom 12, 19th Floor,
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`450 Golden Gate Avenue, San Francisco, California, 94102. The trial schedule and time
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`limits shall be set at the final pretrial conference. Although almost all trials proceed on
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`the date scheduled, it may be necessary on occasion for a case to trail, meaning the trial
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`may commence a few days or even a few weeks after the date stated above, due to
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`calendar congestion and the need to give priority to criminal trials. Counsel and the
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`parties should plan accordingly, including advising witnesses.
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`15. Counsel may not stipulate around the foregoing dates without Court approval.
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`16. For many years, the Court conducted a claim construction hearing about mid-way
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`through the fact-discovery period. While this timing gave some guidance to counsel and
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`experts, it had the distinct disadvantage of requiring abstract rulings without the benefit
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`of a more complete record, thus increasing the risk of a claim construction error and a re-
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`trial (and, for that matter, subsequent second appeal). Instead of a stand-alone claim
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`construction hearing, claim construction will now be done on summary judgment or at
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`trial in settling the jury instructions. In this way, the Court will better understand the as-
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`applied meaning of terms advanced by counsel as claim constructions.
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`17. After receiving the other side’s preliminary claim construction disclosure under Rule 4-2,
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`each party must move promptly to disclose any back-up contentions it may wish (or
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`eventually wish) to make for its infringement or invalidity case in the event the other
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`side’s claim construction is thereafter adopted or else any such back-up contentions will
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`be deemed waived. Promptly means within 28 days at the latest. A party, of course, is
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`not required to have a back-up theory and may rest entirely on its own claim construction,
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`but in the event the other side’s claim construction prevails, such party will not be
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`allowed to assert back-up theories at that later juncture.
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`18. A mere letter, email, or disclosure other than the formal disclosure imposes no duty to
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`amend (nor will it satisfy the Patent Local Rules duty to disclose). What triggers the
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`obligation to amend infringement or invalidity contentions is the formal claim
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`construction disclosure. The obligation does not extend to any alternative claim
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`constructions set forth by an opponent, even those in a formal disclosure, for that would
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`invite rambling claim construction disclosures that would tend to burden or trap. It
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`extends only to a cogent claim construction without variables or alternatives. Nor does a
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`contention waiver apply in the event the other side modifies its claim construction later in
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`its joint statement or opening brief under Rules 4-3 and 4-5. Any such modification
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`would offer a new opportunity to move to amend to assert backup contingent
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`infringement or invalidity contentions. For further explanation, the parties shall please
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`refer to Fluidigm v. IONpath, No. C 19-05639 WHA, Dkt. No. 128 (Aug. 25, 2020).
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`19. Each party (or group of related parties) shall be entitled to one summary judgment
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`motion. If it is granted in full or nearly so, then that party (or group) may ask for leave to
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`file another summary judgment motion as long as the deadline to file one has not passed.
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`Any summary judgment motion must be limited to 25 pages of briefing and 120 pages of
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`declarations and exhibits (not counting the patent itself). The opposition must be limited
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`to 25 pages of briefing and 140 pages of declarations and exhibits. The reply must be
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`limited to fifteen pages of briefing and twenty pages of declarations and exhibits. In the
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`case of voluminous documents and transcripts attached as exhibits, counsel may append
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`only the pages of the document necessary to support the assertions in the briefing and
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`provide reasonable context, along with pages sufficient to identify the documents. Any
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`judicially noticed material will count as an exhibit, but counsel may rely on exhibits and
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`declarations already filed on the same motion by the other side without counting them
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`against counsel’s limit. All briefing and declarations must be double-spaced with number
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`twelve font with only occasional single-spaced quotes and footnotes.
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`20. A movant may move before the summary judgment deadline and before the end of
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`discovery. If it does so, however, it should ordinarily alert the other side of the specific
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`grounds for its contemplated motion reasonably in advance of the motion and cooperate
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`in all discovery the opposing side reasonably needs to meet the issues raised. Once the
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`opposing side is on notice of the contemplated motion, it must act with diligence to
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`investigate and to conduct discovery to meet the anticipated motion. Lack of diligence
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`will undermine any application to postpone the summary judgment motion under
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`FRCP 56(d). Again, if the motion is largely granted, then the prevailing party may
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`seek permission to file yet another summary judgment motion, but if it is largely denied,
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`no further summary judgment motions will be allowed to that party, for a movant should
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`base its motion on its best ground for summary relief. Permission may be sought by
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`filing a five-page application setting forth the ground for the new motion. Any
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`opposition must be filed within three court days.
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`21. The Court realizes that counsel would prefer to go into a trial or summary judgment
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`knowing how the jury will be instructed as to all claims terms, but even under other case
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`management approaches, that preference is rarely attainable. Postponing claim
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`construction until after the judge has the benefit of the trial evidence or at least the benefit
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`of the summary judgment record is more likely to avoid a mistake in claim construction.
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`Moreover, it is customary in trials of all types for counsel and experts to learn only at the
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`instructions-settling conference near the end of the evidence what instructions will or will
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`not be given. As is routinely done in non-patent trials, patent trial counsel should adjust
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`their trial plan and their expert presentations to account for the risk that their favored
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`claim constructions will be rejected or modified in the final instructions.
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`22. Although claim construction will only be done in the context of summary judgment (or
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`settling the jury instructions), the infringement and invalidity procedures of our Patent
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`Local Rules must still be followed, including Rules 3-1 to 3-6, and 4-1 to 4-4 (except that
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`the Court prefers six terms rather than ten). Claim construction briefs must still be filed
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`under the schedule provided by Rule 4-5 but on summary judgment, the pertinent parts of
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`the claim construction briefs shall be extracted out and/or cited as relevant. As stated
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`above, the claim construction hearing under Rule 4-6 shall occur along with summary
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`judgment. If the action originated in a different district and was subsequently transferred
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`here, then plaintiff must timely refile its infringement contentions to conform to our Rule
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`3-1, which filing shall trigger the due date for the invalidity contentions.
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`23. While the Court encourages the parties to engage in settlement discussions, please do not
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`ask for any extensions on the ground of settlement discussions or on the ground that the
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`parties experienced delays in scheduling settlement conferences, mediation or ene. The
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`parties should proceed to prepare their cases for trial. No continuance (even if stipulated)
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`shall be granted on the ground of incomplete preparation without competent and detailed
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`declarations setting forth good cause.
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`24. To avoid any misunderstanding with respect to the final pretrial conference and trial, the
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`Court wishes to emphasize that all filings and appearances must be made — on pain of
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`dismissal, default or other sanction — unless and until a dismissal fully resolving the case
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`is received. It will not be enough to inform the clerk that a settlement in principle has
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`been reached or to lodge a partially executed settlement agreement or to lodge a fully
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`executed agreement (or dismissal) that resolves less than the entire case.
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`Where, however, a fully-executed settlement agreement clearly and fully disposing of the
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`entire case is lodged reasonably in advance of the pretrial conference or trial and only a
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`ministerial act remains, the Court will arrange a telephone conference to work out an
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`alternate procedure pending a formal dismissal.
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`25.
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`If you have not already done so, please read and follow the “Supplemental Order to Order
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`Setting Initial Case Management Conference in Civil Cases Before Judge William
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`Alsup” and other orders issued by the Clerk’s office when this action was commenced.
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`Among other things, the supplemental order explains when submissions are to go to the
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`Clerk’s Office (the general rule) versus when submissions may go directly to chambers
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`(rarely). With respect to the final pretrial conference and trial, please read and follow the
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`“Guidelines For Trial and Final Pretrial Conference in Civil [Jury/Bench] Cases Before
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`The Honorable William Alsup.” All orders and guidelines referenced in the paragraph
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`are available on the district court’s website at http://www.cand.uscourts.gov. The
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`website also includes other guidelines for attorney’s fees motions and the necessary form
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`of attorney time records for cases before Judge Alsup. If you do not have access to the
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`Internet, you may contact Deputy Clerk Angela DiIenno at (415) 522-2020 to learn how
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`to pick up a hard copy.
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`26. This case is referred to a magistrate judge to be assigned for resolution of all discovery
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`motions. The deadline for bringing all discovery motions or extension motions based on
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`discovery violations will be 45 calendar days prior to the fact discovery cutoff (for fact
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`discovery) and ten calendar days prior to the expert discovery cutoff (for expert
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`discovery). The purpose of these lead times is to allow briefing, resolution and follow-
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`up, to the extent practical, before the discovery cutoffs. It is the responsibility of counsel
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`to stay on top of discovery and attendant problems and timely bring the problems to the
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`attention of the magistrate judge in order to avoid delays in the schedule, including giving
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`the magistrate judge enough time to rule.
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`27. All pretrial disclosures under FRCP 26(a)(3) and objections required by FRCP 26(a)(3)
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`must be made on the schedule established by said rule.
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`IT IS SO ORDERED.
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`Dated: October 8, 2021.
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`WILLIAM ALSUP
`UNITED STATES DISTRICT JUDGE
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`GOOGLE v. SONOS (IPR2021-01563)
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