`
`NETLIST, INC,
`
`Plaintiff,
`
`v.
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`§
`§
`§
`§
`§
`§ Case No. 2:22-cv-203-JRG-RSP
`
`§§
`
`
`§
`§
`§
`
`MICRON TECHNOLOGY, INC.; MICRON
`SEMICONDUCTOR PRODUCTS, INC.;
`MICRON TECHNOLOGY TEXAS LLC,
`
`Defendants.
`
`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:
`
`Amended Deadlines
`
`Current Deadlines
`
`Items
`
`January 22, 2024
`
`December 26, 2023
`
`December 20, 2023
`
`December 11, 2023
`
`*Jury Selection – 9:00 a.m. in
`Marshall, Texas
`* 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
`* Pretrial Conference – 9:00 am in
`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
`
`1 The Parties are referred to the Court’s Standing Order Regarding Use of Juror Questionnaires in
`Advance of Voir Dire.
`
`- 1 -
`
`Petitioners
`Ex. 1075, p. 1
`
`
`
`Case 2:22-cv-00203-JRG-RSP Document 40 Filed 10/21/22 Page 2 of 7 PageID #: 2052
`
`of any agreements reached no later
`than 1:00 p.m. three (3) business
`days before the pretrial
`conference.
`*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
`*File Notice of Request for Daily
`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, Shelly
`Holmes, at
`shelly_holmes@txed.uscourts.gov.
`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 to Rebuttal
`Pretrial Disclosures
`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
`*Response to Dispositive Motions
`(including Daubert Motions).
`Responses to dispositive motions
`that were filed prior to the
`dispositive motion deadline,
`
`December 11, 2023
`
`December 4, 2023
`
`November 27, 2023
`
`November 27, 2023
`
`November 20, 2023
`
`November 6, 2023
`
`October 30, 2023
`
`- 2 -
`
`Petitioners
`Ex. 1075, p. 2
`
`
`
`Case 2:22-cv-00203-JRG-RSP Document 40 Filed 10/21/22 Page 3 of 7 PageID #: 2053
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`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.
`*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.
`Deadline to Complete Expert
`Discovery
`Serve Disclosures for Rebuttal
`Expert Witnesses
`Deadline to Complete Fact
`Discovery and File Motions to
`Compel Discovery
`Serve Disclosures for Expert
`Witnesses by the Party with the
`Burden of Proof
`
`October 16, 2023
`
`October 16, 2023
`
`October 10, 2023
`
`September 25, 2023
`
`September 5, 2023
`
`September 5, 2023
`
`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 -
`
`Petitioners
`Ex. 1075, p. 3
`
`
`
`Case 2:22-cv-00203-JRG-RSP Document 40 Filed 10/21/22 Page 4 of 7 PageID #: 2054
`
`August 9, 2023
`
`July 19, 2023
`
`July 5, 2023
`
`June 28, 2023
`
`June 21, 2023
`
`June 7, 2023
`
`June 7, 2023
`
`May 24, 2023
`
`May 17, 2023
`
`May 3, 2023
`
`April 26, 2023
`
`- 4 -
`
`Comply with P.R. 3-7 (Opinion of
`Counsel Defenses)
`*Claim Construction Hearing –
`9:00 a.m. in Marshall, Texas
`before Judge Rodney Gilstrap
`*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).
`Deadline to Substantially
`Complete 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.
`Comply with P.R. 4-4 (Deadline
`to Complete Claim Construction
`Discovery)
`File Response to Amended
`Pleadings
`*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.
`Comply with P.R. 4-3 (Joint
`Claim Construction Statement)
`
`Petitioners
`Ex. 1075, p. 4
`
`
`
`Case 2:22-cv-00203-JRG-RSP Document 40 Filed 10/21/22 Page 5 of 7 PageID #: 2055
`
`April 5, 2023
`
`March 15, 2023
`
`November 7, 2022
`
`November 21, 2022
`
`November 7, 2022
`
`October 24, 2022
`
`October 18, 2022
`
`Comply with P.R. 4-2 (Exchange
`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.
`
`(*) 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
`
`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 -
`
`Petitioners
`Ex. 1075, p. 5
`
`
`
`Case 2:22-cv-00203-JRG-RSP Document 40 Filed 10/21/22 Page 6 of 7 PageID #: 2056
`
`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.
`
`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.
`
`- 6 -
`
`Petitioners
`Ex. 1075, p. 6
`
`
`
`Case 2:22-cv-00203-JRG-RSP Document 40 Filed 10/21/22 Page 7 of 7 PageID #: 2057
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`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.
`
`- 7 -
`
`____________________________________
`ROY S. PAYNE
`UNITED STATES MAGISTRATE JUDGE
`
`SIGNED this 3rd day of January, 2012.
`
`SIGNED this 21st day of October, 2022.
`
`Petitioners
`Ex. 1075, p. 7
`
`