`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`ORCKIT CORPORATION,
`
`Plaintiff,
`
`V.
`
`CISCO SYSTEMS, INC.,
`
`Defendant.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`Case No. 2:22-cv-00276-JRG-RSP
`
`FIRST AMENDED DOCKET CONTROL ORDER
`
`In accordance with the Joint Motion (Dkt. No. 45), it is hereby ORDERED that the
`
`following schedule of deadlines is in effect until further order of this Court:
`
`March 4, 2024
`
`7 days before
`Jury Selection
`
`10 days before
`Jury Selection
`
`February 5,
`2024
`
`January 30,
`2024
`
`* Jury Selection - 9:00 a.m. in Marshall, Texas
`
`*Defendant to disclose final invalidity theories,
`final prior art references/combinations, andfinal
`equitable defenses. 1
`
`*Plaintiff to disclose final election of Asserted
`Claims.2
`
`* 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. 3
`
`*Pretrial Conference - 1 :30 p.m. in Marshall,
`Texas before Judge Roy Payne
`
`1 The proposed DCO shall include this specific deadline. The deadline shall read, "7 days before Jury
`Selection," and shall not include a specific date.
`2 Given the Court's past experiences with litigants dropping claims and defenses during or on the eve of trial,
`the Court is of the opinion that these additional deadlines are necessary. The proposed DCO shall include this
`specific deadline. The deadline shall read, "l O days before Jury Selection," and shall not include a specific date.
`3 The Parties are referred to the Court's Standing Order Regarding Use of Juror Questionnaires in Advance of
`Vair Dire.
`
`Exhibit 1011
`Cisco v. Orckit – IPR2023-00554
`Page 1 of 6
`
`
`
`Case 2:22-cv-00276-JRG-RSP Document 46 Filed 01/15/23 Page 2 of 6 PagelD #: 528
`
`January 22,
`2024
`
`January 22,
`2024
`
`January 16,
`2024
`
`January 12,
`2024
`
`January 12,
`2024
`
`January 9,
`2024
`
`December 18,
`2023
`
`*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.
`
`*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,
`Shawn
`McRoberts,
`at
`shawn _ mcroberts@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
`Disclosures
`
`to Rebuttal
`
`Pretrial
`
`Serve Objections to Pretrial Disclosures; and
`Serve Rebuttal Pretrial Disclosures
`
`(Witness List,
`Serve Pretrial Disclosures
`Deposition Designations, and Exhibit List) by
`the Party with the Burden of Proof
`
`2
`
`Exhibit 1011
`Cisco v. Orckit – IPR2023-00554
`Page 2 of 6
`
`
`
`Case 2:22-cv-00276-JRG-RSP Document 46 Filed 01/15/23 Page 3 of 6 PagelD #: 529
`
`December 11,
`2023
`
`November 27,
`2023
`
`November 27,
`2023
`
`November 20,
`2023
`
`November 9,
`2023
`
`October 19,
`2023
`
`October 19,
`2023
`
`September 28,
`2023
`
`September 7,
`2023
`
`*Response to Dispositive Motions (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.4 Motions
`for
`Summary Judgment shall comply with Local
`Rule CV-56.
`
`*File Motions to Strike Expert Testimony
`Motions)
`(including
`Daubert
`
`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
`reguire 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
`
`Comply with P.R. 3-7 (Opinion of Counsel
`Defenses)
`
`*Claim Construction Hearing - 9:00 a.m. in
`Marshall, Texas before Judge Roy Payne
`
`4 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
`
`Exhibit 1011
`Cisco v. Orckit – IPR2023-00554
`Page 3 of 6
`
`
`
`Case 2:22-cv-00276-JRG-RSP Document 46 Filed 01/15/23 Page 4 of 6 PagelD #: 530
`
`August 24,
`2023
`
`August 17,
`2023
`
`August 10,
`2023
`
`July 27, 2023
`
`July 13, 2023
`
`June 29, 2023
`
`July 6, 2023
`
`June 22, 2023
`
`June 7, 2023
`
`May 25, 2023
`
`May 4, 2023
`
`January 19,
`2023
`
`*Comply with P.R. 4-5(d)
`Construction Chart)
`
`(Joint Claim
`
`*Comply with P.R. 4-5(c)
`Construction Brief)
`
`(Reply Claim
`
`Comply with P.R. 4-5(b) (Responsive Claim
`Construction Brief)
`
`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. 4-5(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).
`
`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)
`
`Comply with P.R. 4-2 (Exchange Preliminary
`Claim Constructions)
`
`Comply with P.R. 4-1 (Exchange Proposed
`Claim Terms)
`
`February 2, 2023
`
`Comply with Standing Order Regarding
`Subject-Matter Eligibility Contentions5
`
`5http://www.txed.uscourts.gov/sites/default/files/judgeFiles/EDTX%20Standing%200rder%20Re%20Subject%
`20Matter%20Eligibility%20Contentions%20. pdf [https://perma.cc/RQN2-YU SP]
`
`4
`
`Exhibit 1011
`Cisco v. Orckit – IPR2023-00554
`Page 4 of 6
`
`
`
`Case 2:22-cv-00276-JRG-RSP Document 46 Filed 01/15/23 Page 5 of 6 PagelD #: 531
`
`January 19,
`2023
`
`February 2, 2023
`
`Comply with P.R. 3-3 & 3-4 (Invalidity
`Contentions)
`
`January 19, 2023
`
`Plaintiff to serve Supplemental Infringement
`Contentions in accordance with the Parties'
`agreement
`
`(*) indicates a deadline that cannot be changed without an acceptable showing of 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 withip fourteen days of the issuance of the Court's claim
`copstructiop 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-1 l(a)(l), 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. The true lead counsel
`should be designated early and should not expect to parachute in as lead once the case has been
`largely developed.
`
`Motiops for Coptipuapce; The following will not warrant a continuance nor justify a
`failure to comply with the discovery deadline:
`
`(a)
`
`(b)
`
`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
`
`5
`
`Exhibit 1011
`Cisco v. Orckit – IPR2023-00554
`Page 5 of 6
`
`
`
`Case 2:22-cv-00276-JRG-RSP Document 46 Filed 01/15/23 Page 6 of 6 PagelD #: 532
`
`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;
`
`( c)
`
`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.
`
`Proposed DCO; The Parties' Proposed DCO should also follow the format described
`above under "Amendments to the Docket Control Order ('DCO')."
`
`.Joipt 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 of35 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.
`
`Trial: All parties must appear in person at trial. All non-individual (including but not
`limited to corporate) parties must appear at trial through the presence in person of a designated
`representative. Once they have appeared, any representative of a non-individual party shall not
`be replaced or substituted without express leave of Court.
`
`SIGNED this 15th day of January, 2023.
`
`UNITED STATES MAGISTRATE JUDGE
`
`6
`
`Exhibit 1011
`Cisco v. Orckit – IPR2023-00554
`Page 6 of 6
`
`