Case 2:22-cv-10730-GAD-APP ECF No. 39, PageID.774 Filed 09/14/22 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`Case No.: 2:22-cv-10730
`Hon. Gershwin A. Drain
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`SCRAMOGE TECHNOLOGY,
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` Plaintiff,
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`v.
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`VOLKSWAGEN GROUP OF
`AMERICAS, INC.,
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`Defendant,
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`__________________________
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`SCHEDULING ORDER
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`This is a patent case. Involved are United States Patent Nos. 10,546,685 (the
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`“‘685 Patent”), 10, 193,392 (the “‘392 Patent”), 7,825,537 (the “‘537 Patent”), and
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`10,243,400 (the “‘400 Patent”). On September 6, 2022, the parties submitted their
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`Rule 26(f) report. ECF No. 37. The parties appeared for a Scheduling Conference
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`on September 12, 2022. At the conference, the Court set the following dates in this
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`matter:
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`YOU WILL RECEIVE NO FURTHER NOTICE OF THESE DATES
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`Rule 26(a)(i) disclosures due:
`Stipulated Protective Order:
`Defendant’s Motion to Stay due:
`Plaintiff
`serves
`preliminary
`infringement contentions in the form of
`a chart setting forth where in the
`accused product(s) each element of the
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`September 26, 2022
`September 26, 2022
`October 3, 2022
`October 11, 2022
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`Page 1 of 8
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`Volkswagen Exhibit 1034
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`Case 2:22-cv-10730-GAD-APP ECF No. 39, PageID.775 Filed 09/14/22 Page 2 of 8
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`October 18, 2022
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`October 18, 2022
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`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.
`Parties shall meet and confer regarding
`the number of claim terms to be
`construed no later than:
`Plaintiff’s Response
`to Defendant’s
`Motion to Stay due:
`Defendant’s Reply
`Motion to Stay due:
`Defendant serves 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, and (2) an identification of any
`limitations the Defendant contends are
`indefinite or lack written description
`under section 112. Defendant shall also
`produce (1) all prior art referenced in
`the
`invalidity contentions, and (2)
`technical
`documents,
`including
`software where applicable, sufficient to
`show the operation of the accused
`product(s).
`Amendment of pleadings and joinder
`of additional parties:
`Exchange proposed claim terms to be
`construed:
`claim
`preliminary
`Exchange
`constructions and extrinsic evidence:1
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`1 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 identify the
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`December 20, 2022
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`in support of
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`October 26, 2022
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`December 6, 2022
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`December 20, 2022
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`January 10, 2023
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`Page 2 of 8
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`Case 2:22-cv-10730-GAD-APP ECF No. 39, PageID.776 Filed 09/14/22 Page 3 of 8
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`claim
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`claim
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`Deadline for first meet and confer to
`narrow terms in dispute and exchange
`revised list of terms/constructions:
`Defendant’s
`Opening
`claim
`construction brief due, including any
`arguments that any claim terms are
`indefinite:
`Responsive
`Plaintiff’s
`construction brief due:
`Defendant’s Reply claim construction
`brief due:
`Sur-Reply
`Plaintiff’s
`construction brief:
`Markman hearing:
`Facilitation2:
`Fact Discovery Cutoff:
`Initial Expert Disclosures and Expert
`Reports due:
`Expert Rebuttal Reports due:
`Cutoff for Expert Discovery:
`Dispositive Motion Cutoff (including
`motions
`for
`summary
`judgment,
`Daubert motions, and motions to strike
`expert reports):
`Responses to Dispositive Motions due:
`Replies
`in support of dispositive
`motions due:
`Settlement Conference with Magistrate
`Judge Anthony P. Patti:
`Pretrial filings, including those
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`January 17, 2023
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`January 24, 2023
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`February 14, 2023
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`February 28, 2023
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`March 14, 2023
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`TBD
`No later than April 8, 2024
`October 24, 2023
`November 7, 2023
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`December 5, 2023
`December 21, 2023
`January 9, 2024
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`January 30, 2024
`February 6, 2024
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`July of 2024
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`May 27, 2024
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`scope of the topics for the witness’s expected testimony. Any party may utilize a
`rebuttal expert in response to a brief where expert testimony is relied upon by the
`other party. 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. 
`2 The parties shall submit a proposed order submitting the case to facilitation no
`later than November 1, 2023. The proposed order shall identify the name of the
`facilitator and the date set for the facilitation.   
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`Page 3 of 8
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`Case 2:22-cv-10730-GAD-APP ECF No. 39, PageID.777 Filed 09/14/22 Page 4 of 8
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`required pursuant to Rule 26(a)(3)(A):
`Witness lists
`Exhibit lists
`Deposition designations
`Proposed voir dire questions
`Proposed jury instructions
`Proposed verdict forms
`Objections, oppositions, and rebuttals
`to pretrial filings
`Objections to rebuttal pretrial filings
`Pre-trial motions, including in limine
`Oppositions
`to pre-trial motions,
`including in limine
`Final Pretrial Order due:
`Final Pretrial Conference:
`Jury Trial:
`Estimated Length of Trial:
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`I.
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`June 10, 2024
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`June 17, 2024
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`June 24, 2024
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`July 1, 2024
`July 15, 2024 at 2:00 p.m.
`August 13, 2024 at 9:00 a.m.
`5-6 days
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`TIME. Computation of time under this order and under any notice of any
`scheduling order or notice in this case shall be in conformity and accordance
`with Federal Rule of Civil Procedure 6(a).
`FILING OF PAPERS. The Court requires strict compliance with Local
`II.
`Rule 5.1(a)(3). Therefore, any filings that fail to comply with the font
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`requirements described in the rule will be immediately stricken. See E.D.
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`Mich. L.R. 5.1(a)(3) (requiring filings to contain type size for all text and
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`footnotes to “be no smaller than 10 and ½ characters per inch (non-
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`proportional) or 14 point (proportional)).
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`III. DISCOVERY. Discovery shall be completed on or before the date set forth
`in the scheduling order. The court will not order discovery to take place
`subsequent to the discovery cutoff date. The discovery deadline may only
`be extended by filing a timely written motion with the court. Extensions or
`adjournments of all other dates will also only be considered upon the filing
`of a timely written motion for good cause shown. Local Rule 26.2 generally
`prohibits filing discovery materials with the Clerk. Violation of this rule
`may result in sanctions. The parties shall propose a separate order providing
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`Case 2:22-cv-10730-GAD-APP ECF No. 39, PageID.778 Filed 09/14/22 Page 5 of 8
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`stipulations regarding production of ESI, which is not to include email. The
`parties reserve the right, however, to later make a particularized request to
`the Court for email discovery if a unique need for such discovery arises. The
`parties shall work cooperatively on drafting a Stipulated Protective Order,
`which they shall submit pursuant to the schedule above.
`IV. OTHER DISCOVERY ISSUES
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`Apart from the limits imposed by the Federal Rules of Civil Procedure, the
`limits discussed in Sections C and D, and the deadlines listed above, no
`other limits are imposed on discovery at this time.
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`(a) Expert Discovery:
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`A. The parties agree that testifying experts’ drafts reports, notes, and
`outlines of draft reports shall not be subject to discovery in this case, nor
`shall any such drafts, notes, or outlines of draft reports that the testifying
`expert prepared in other cases be subject to discovery in this case.
`Discovery of materials provided to testifying experts shall be limited to
`those materials, facts, consulting expert opinions, and other matters actually
`relied upon by the testifying expert in forming his or her final report, trial or
`deposition testimony, or any opinion in this case. No conversations or
`communications between counsel and any testifying will be subject to
`discovery unless the conversations or communications are relied upon by
`such experts in formulating opinions that are presented in reports, trial or
`deposition testimony in this case. Materials, communications, and other
`information exempt from discovery under this paragraph shall be treated as
`attorney-work product for the purposes of this litigation. This provision
`does not change the existing protections for expert discovery and exceptions
`thereto set forth in Fed. R. Civ. P. 26(b)(4).
`(b) Authenticity:
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`For purposes of this case only, the parties agree that documents and source
`code produced by third-parties pursuant to a subpoena are presumptively
`authentic; to the extent that any party has a good faith basis to believe that a
`document produced by a third party is not authentic, it will give written
`notice to the other side and the parties will promptly meet and confer in an
`attempt to resolve the objection.
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`Case 2:22-cv-10730-GAD-APP ECF No. 39, PageID.779 Filed 09/14/22 Page 6 of 8
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`V.
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`FINAL PRETRIAL CONFERENCE AND FINAL PRETRIAL
`ORDER. The Final Pretrial Order must be submitted through the document
`utilities function of the CM/ECF on or before the date set by this order. All
`witnesses must be listed in the Final Pretrial Order. Witnesses may only be
`added to the Final Pretrial Order by stipulation of the parties and leave of
`court. Counsel shall follow the procedure outlined below to prepare for the
`final pretrial conference and the Final Pretrial Order:
`A.
`Counsel for all parties are directed to confer in person (face to face) at
`their earliest convenience in order to (1) reach any possible
`stipulations narrowing the issues of law and fact, (2) deal with non-
`stipulated issues in the manner stated in this paragraph, and (3)
`exchange documents that will be offered in evidence at trial. It shall
`be the duty of counsel for plaintiff to initiate that meeting and the duty
`of opposing counsel to respond to plaintiff’s counsel and to offer full
`cooperation and assistance. If, after reasonable effort, any party
`cannot obtain the cooperation of opposing counsel, it shall be his or
`her duty to communicate with the court. The Final Pretrial Order
`shall fulfill the parties’ disclosure obligations under Federal Rule of
`Civil Procedure 26(a)(3), unless the Judge orders otherwise. All
`objections specified in Rule 26(a)(3) shall be made in this order.
`Counsel for plaintiff shall prepare a draft Final Pretrial Order and
`submit it to opposing counsel, after which all counsel will jointly
`submit the proposed order. The Final Pretrial Order should provide
`for the signature of the court, which, when signed, will become an
`Order of the court. The proposed Final Pretrial Order shall strictly
`comply with the requirements of Local Rule 16.2.
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`* Pursuant to Local Rule 16.2(b)(9), any objection based on foundation
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`or authenticity will be deemed waived if not raised before trial.
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`B. The following persons shall personally attend the final pretrial
`conference:
`1) Trial counsel for each party;
`2) All parties who are natural persons;
`3) A representative on behalf of any other party;
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`4) A representative of any insurance carrier that has undertaken the
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`prosecution or defense of the case and has contractually reserved to
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`itself the ability to settle the action.
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`Representatives must possess full authority to engage in settlement
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`discussions and to agree upon a full and final settlement. “Personal attendance” by
`each party is not satisfied by (1) trial counsel professing to have full authority on
`behalf of the client or (2) a party being available by telephone.
`VI. At least ONE WEEK prior to the beginning of trial, counsel shall furnish to
`the court the following:
`A.
`In jury cases, any requests for VOIR DIRE, proposed JOINT JURY
`INSTRUCTIONS and the VERDICT FORM. The parties shall file
`with the court a single set of proposed, stipulated jury instructions and
`a single, proposed verdict form. The instructions are to be typewritten
`and double spaced and shall contain references to authority (e.g.,
`“Devitt and Blackmar, Section 11.08"). Additionally, each party shall
`separately file any additional proposed instructions to which any other
`party objects. Judge’s courtesy copies and disc required. The parties
`must make a concerted, good faith effort to narrow the areas of
`dispute and to discuss each instruction with a view to reaching an
`agreement as to an acceptable form.
`In a non-jury case, proposed FINDINGS OF FACT and
`CONCLUSIONS OF LAW.
`C. A statement of claims or defenses, no longer than two pages, suitable
`to be read to the jury during opening instructions.
`VII. EXHIBITS. Counsel are required to mark all proposed exhibits in advance
`of trial. Plaintiff’s exhibits shall use numbers and Defendant’s exhibits shall
`use letters. A consecutive number and lettering system should be used by
`each party. The parties are required to exchange marked exhibits three days
`prior to the start of trial. Counsel are also required to maintain a record of all
`admitted exhibits during trial. See attached exhibit form. Counsel for each
`party must keep custody of that party’s admitted exhibits during trial. A
`party who objects to this provision must file a written objection prior to jury
`selection.
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`B.
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`VIII. JUDGE’S COPIES. A paper copy of electronically filed motions, briefs,
`attachments, responses, replies, proposed Final Pretrial Order, and proposed
`Joint Jury Instructions (with disc) MUST be delivered directly to the Judge’s
`chambers and labeled Judge’s copy. If any filing contains more than ten
`exhibits, two Judge’s copies are required.
`IX. The court will not allow counsel not admitted in the Eastern District to
`practice upon a special motion. All inquiries regarding admission to this
`district must be directed to the Clerk’s office at (313) 234-5005.
`LOCAL COUNSEL. An attorney admitted to practice in the Eastern
`District of Michigan who appears as attorney of record and is not an active
`member of the State Bar of Michigan must specify local counsel with an
`office in this district. Local counsel must enter an appearance and otherwise
`comply with Local Rule 83.20(f).
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`X.
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`Dated: September 14, 2022
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`/s/Gershwin A. Drain
`GERSHWIN A. DRAIN
`United States District Judge
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`CERTIFICATE OF SERVICE
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`Copies of this Order were served upon attorneys of record on
`September 14, 2022, by electronic and/or ordinary mail.
`/s/ Teresa McGovern
`Deputy Clerk
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`Page 8 of 8
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