Case 1:23-cv-00087-CJB Document 20 Filed 03/28/23 Page 1 of 21 PageID #: 343
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 23-087 (CJB)
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`)))))))))
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`ATTENTIVE MOBILE INC.,
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`Plaintiff,
`
`v.
`
`STODGE INC. d/b/a POSTSCRIPT,
`
`Defendant.
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`SCHEDULING ORDER
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`This 27th day of March, 2023, the Court having conducted an initial Rule 16
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`scheduling and planning conference pursuant to Federal Rule of Civil Procedure 16(b) and
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`Local Rule 16.1 on N/A, 2023, and the parties having determined after discussion that the
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`matter cannot be resolved at this juncture by settlement, voluntary mediation, or binding
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`arbitration;
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`IT IS ORDERED that:
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`1.
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`Rule 26(a)(1) Initial Disclosures and E-Discovery Default Standard. Unless
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`otherwise agreed to by the parties, the parties shall make their initial disclosures pursuant to
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`Federal Rule of Civil Procedure 26(a)(1) within five (5) days of the date of this Order. If they
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`have not already done so, the parties are to review the Court’s Default Standard for Discovery,
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`Including Discovery of Electronically Stored Information (“ESI”), which is posted on Magistrate
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`Judge Burke’s section of the Court’s website (http://www.ded.uscourts.gov) under the
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`“Guidelines” tab, and is incorporated herein by reference.
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`2.
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`Joinder of Other Parties and Amendment of Pleadings. All motions to join other
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`parties, and to amend or supplement the pleadings shall be filed on or before October 27, 2023.
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`POSTSCRIPT 1027
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`001
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`

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`Case 1:23-cv-00087-CJB Document 20 Filed 03/28/23 Page 2 of 21 PageID #: 344
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`3.
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`Application to Court for Protective Order. Should counsel find it will be
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`necessary to apply to the Court for a protective order specifying terms and conditions for the
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`disclosure of confidential information, counsel should confer and attempt to reach an agreement
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`on a proposed form of order and file it with the Court on or before April 26, 2023. Should counsel
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`be unable to reach an agreement on a proposed form of order, counsel must follow the provisions
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`of Paragraph 7(g) below.
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`Any proposed protective order must include the following paragraph:
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`Other Proceedings. By entering this order and limiting the
`disclosure of information in this case, the Court does not intend to
`preclude another court from finding that information may be
`relevant and subject to disclosure in another case. Any person or
`party subject to this order who becomes subject to a motion to
`disclose another party’s information designated “confidential” [the
`parties should list any other level of designation, such as “highly
`confidential,” which may be provided for in the protective order]
`pursuant to this order shall promptly notify that party of the motion
`so that the party may have an opportunity to appear and be heard
`on whether that information should be disclosed.
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`4.
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`Papers Filed Under Seal. When filing papers under seal, counsel shall follow the
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`District Court’s policy on Filing Sealed Civil Documents in CM/ECF and section G of the
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`Administrative Procedures Governing Filing and Service by Electronic Means. A redacted version
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`of any sealed document shall be filed electronically within seven (7) days of the filing of the sealed
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`document.
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`Should any party intend to request to seal or redact all or any portion of a transcript of a
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`court proceeding (including a teleconference), such party should expressly note that intent at the
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`start of the court proceeding. Should the party subsequently choose to make a request for sealing
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`or redaction, it must, promptly after the completion of the transcript, file with the Court a motion
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`for sealing/redaction, and include as attachments: (1) a copy of the complete transcript highlighted
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`so the Court can easily identify and read the text proposed to be sealed/redacted; and (2) a copy of
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`2
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`002
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`

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`Case 1:23-cv-00087-CJB Document 20 Filed 03/28/23 Page 3 of 21 PageID #: 345
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`the proposed redacted/sealed transcript. With its request, the party seeking redactions must
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`demonstrate why there is good cause for the redactions and why disclosure of the redacted material
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`would work a clearly defined and serious injury to the party seeking redaction.
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`5.
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`Courtesy Copies. The parties shall provide to the Court two (2) courtesy copies of
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`all briefs and any other document filed in support of any briefs (i.e., appendices, exhibits,
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`declarations, affidavits, etc.). This provision also applies to papers filed under seal. Unless ordered
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`differently by the Court, such copies must be provided to the Court by no later than noon the
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`business day after the filing is made electronically.
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`6.
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`Disclosures. Absent agreement among the parties, and approval of the Court:
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`a.
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`If one or more of the patents-in-suit have already been licensed or the
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`subject of a settlement agreement, either: (1) Plaintiff shall provide the licenses and/or settlement
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`agreements to Defendant on or before April 26, 2023, or (2) if Plaintiff requires a Court Order to
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`make such disclosures, Plaintiff shall file any necessary proposed orders no later than on or before
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`April 12, 2023. Plaintiff shall represent in the scheduling order that it is complying or has complied
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`with this requirement.
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`b.
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`By April 26, 2023, Plaintiff shall identify the accused product(s), including
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`accused methods and systems, and its damages model, as well as the asserted patent(s) that the
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`accused product(s) allegedly infringe(s). Plaintiff shall also produce the file history for each
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`asserted patent.
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`c.
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`By May 26, 2023, Defendant shall produce core technical documents
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`related to the accused product(s), sufficient to show how the accused product(s) work(s), including
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`but not limited to non-publicly available operation manuals, product literature, schematics, and
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`specifications. Defendant shall produce sales figures for the accused product(s).
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`3
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`003
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`Case 1:23-cv-00087-CJB Document 20 Filed 03/28/23 Page 4 of 21 PageID #: 346
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`d.
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`By June 28, 2023, Plaintiff shall produce an initial claim chart relating each
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`known accused product to the asserted claims each such product allegedly infringes.
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`e.
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`By July 27, 2023, Defendant shall produce its initial invalidity contentions
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`for each asserted claim, as well as the known related invalidating references.
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`f.
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`Plaintiff shall provide final infringement contentions within 30 days after
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`the Court issues its Order on Claim Construction.
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`g.
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`Defendant shall provide final invalidity contentions within 21 days after
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`Plaintiff serves its final infringement contentions.
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`h.
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`The parties, if they think it necessary, should set times in the schedule for
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`reducing the number of asserted claims and asserted prior art used for anticipation and obviousness
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`combinations. The usual points where the Court will consider such limits are before claim
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`construction and after a ruling on claim construction.
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`7.
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`Discovery. Unless otherwise ordered by the Court, the limitations on discovery set
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`forth in Local Rule 26.1 shall be strictly observed.
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`a.
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`Discovery Cut Off. All fact discovery in this case shall be initiated so that
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`it will be completed by the later of April 30, 2024 or 14 days after Defendant serves its final
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`invalidity contentions.
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`b.
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`Document Production. Document production shall be substantially
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`complete by January 17, 2024.
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`c.
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`Requests for Admission. A maximum of 25 requests for admission are
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`permitted for each side. This limit does not apply to requests for admission on issues of
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`authentication.
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`4
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`004
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`Case 1:23-cv-00087-CJB Document 20 Filed 03/28/23 Page 5 of 21 PageID #: 347
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`d.
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`Interrogatories.
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`i.
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`A maximum of 25
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`interrogatories,
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`including contention
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`interrogatories, are permitted for each side.
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`ii.
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`The Court encourages the parties to serve and respond to contention
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`interrogatories early in the case. In the absence of agreement among the parties, contention
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`interrogatories, if served, shall first be addressed by the party with the burden of proof. The
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`adequacy of all interrogatory answers shall, in part, be judged by the level of detail each party
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`provides; i.e., the more detail a party provides, the more detail a party shall receive.
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`e.
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`Depositions.
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`i.
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`Limitation on Hours for Deposition Discovery. Each side is limited
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`to a total of 70 hours of taking fact witness testimony by deposition upon oral examination. For
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`the avoidance of doubt, this limit shall not apply to expert depositions and/or third-party
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`depositions.
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`ii.
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`Location of Depositions. Any party or representative (officer,
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`director, or managing agent) of a party filing a civil action in this Court must ordinarily be required,
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`upon request, to submit to a deposition at a place designated within this district. Exceptions to this
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`general rule may be made by order of the Court. A defendant who becomes a counterclaimant,
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`cross-claimant, or third-party plaintiff shall be considered as having filed an action in this Court
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`for the purpose of this provision.
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`f.
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`Disclosure of Expert Testimony.
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`i.
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`Expert Reports. For the party who has the initial burden of proof on
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`the subject matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on or
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`before June 14, 2024. The supplemental disclosure to contradict or rebut evidence on the same
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`5
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`005
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`Case 1:23-cv-00087-CJB Document 20 Filed 03/28/23 Page 6 of 21 PageID #: 348
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`matter identified by another party is due on or before July 12, 2024. Reply expert reports from
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`the party with the initial burden of proof are due on or before July 26, 2024. No other expert
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`reports will be permitted without either the consent of all parties or leave of the Court. Along with
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`the submissions of the expert reports, the parties shall advise of the dates and times of their experts’
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`availability for deposition. All expert discovery, including any deposition, shall be completed on
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`or before August 23, 2024.
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`ii.
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`Expert Report Supplementation. The parties agree they will not
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`permit expert declarations to be filed in connection with motions briefing (including case-
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`dispositive motions).
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`iii.
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`Objections to Expert Testimony.
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`To the extent any objection to expert testimony is made pursuant to the
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`principles announced in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), as
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`incorporated in Federal Rule of Evidence 702, it shall be made by motion no later than the deadline
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`for dispositive motions set forth herein, unless otherwise ordered by the Court. Briefing on such
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`motions is subject to the page limits set out in connection with briefing of case dispositive motions.
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`g.
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`Discovery Matters and Disputes Relating to Protective Orders.
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`i.
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`Any discovery motion filed without first complying with the
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`following procedures will be denied without prejudice to renew pursuant to these procedures.
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`ii.
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`Should counsel find, after good faith efforts—including verbal
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`communication among Delaware and Lead Counsel for all parties to the dispute—that they are
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`unable to resolve a discovery matter or a dispute regarding a protective order (other than that
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`involving the initial drafting of a protective order, which is discussed further below), the parties
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`6
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`006
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`Case 1:23-cv-00087-CJB Document 20 Filed 03/28/23 Page 7 of 21 PageID #: 349
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`involved in the discovery matter or protective order dispute shall file a joint letter in substantially
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`the following form:
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`Dear Judge Burke:
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`The parties in the above-referenced matter
`write to request the scheduling of a discovery
`teleconference.
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`The following attorneys, including at least
`one Delaware Counsel and at least one Lead
`Counsel per party, participated in a verbal
`meet-and-confer
`(in person and/or by
`telephone) on the following date(s):
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`Delaware Counsel: ___________________
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`Lead Counsel: _______________________
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`The disputes requiring judicial attention are
`listed below:
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`[provide here a non-argumentative list of
`disputes requiring judicial attention]
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`iii.
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`The moving party (i.e., the party seeking relief from the Court)
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`should also file a “Motion For Teleconference To Resolve Discovery Dispute.” The suggested text
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`for this motion can be found in Judge Burke’s section of the Court’s website, in the “Forms” tab,
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`under the heading “Discovery Matters - Motion to Resolve Discovery Dispute.”
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`iv.
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`The Court will thereafter set a discovery dispute telephone
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`conference and a briefing schedule. The movant’s opening letter brief shall include as attachments:
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`(1) a proposed order, attached as an exhibit, setting out the nature of the relief requested of the
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`Court; and (2) to the extent that the dispute relates to responses to certain discovery requests, an
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`attached exhibit (or exhibits) containing the requests and the responses in dispute. To the extent
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`that factual issues are disputed or are otherwise central to the Court’s analysis, the parties shall
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`7
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`007
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`Case 1:23-cv-00087-CJB Document 20 Filed 03/28/23 Page 8 of 21 PageID #: 350
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`attach as an exhibit (or exhibits) to their letter briefs sworn declarations or affidavits regarding
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`those issues. The parties should also consult and follow Judge Burke’s “Guidelines for Discovery
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`Disputes,” which is found in the “Guidelines” tab on Judge Burke’s section of the District Court’s
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`website. The parties shall also comply with paragraph 5 regarding the submission of courtesy
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`copies; if they fail to do so, the telephone conference may be cancelled.
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`v.
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`Should the Court find further briefing necessary upon the conclusion
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`of the telephone conference, the Court will order it. Alternatively, the Court may choose to resolve
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`the dispute prior to the telephone conference and will, in that event, cancel the conference.
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`vi.
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`Should counsel find, after good faith efforts—including verbal
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`communication among Delaware and Lead Counsel for all parties to the dispute—that they are
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`unable to resolve a dispute regarding the initial drafting of a protective order, the parties involved
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`in the dispute shall file a joint letter in substantially the following form:
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`Dear Judge Burke:
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`The parties in the above-referenced matter
`write
`to request
`the scheduling of a
`teleconference to resolve a protective order
`dispute.
`
`The following attorneys, including at least
`one Delaware Counsel and at least one Lead
`Counsel per party, participated in a verbal
`meet-and-confer
`(in person and/or by
`telephone) on the following date(s):
`
`Delaware Counsel: ___________________
`
`Lead Counsel: _______________________
`
`The disputes requiring judicial attention are
`listed below:
`
`[provide here a non-argumentative list of
`disputes requiring judicial attention]
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`8
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`008
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`

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`Case 1:23-cv-00087-CJB Document 20 Filed 03/28/23 Page 9 of 21 PageID #: 351
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`vii.
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`The parties shall also file a “Joint Motion For Teleconference To
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`Resolve Protective Order Dispute.” The suggested text for this motion can be found in Judge
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`Burke’s section of the Court’s website, in the “Forms” tab, under the heading “Discovery Matters
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`- Joint Motion to Resolve Protective Order Dispute.”
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`viii.
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`The Court will
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`thereafter set a protective order dispute
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`teleconference and a briefing schedule. Along with their respective letter briefs, each side should
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`include as an attachment the side’s proposal as to how the content of the disputed portion(s) of the
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`protective order should read. The parties shall also comply with paragraph 5 regarding the
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`submission of courtesy copies; if they fail to do so, the telephone conference may be cancelled.
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`ix.
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`Should the Court find further briefing necessary upon the conclusion
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`of the telephone conference, the Court will order it. Alternatively, the Court may choose to resolve
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`the dispute prior to the telephone conference and will, in that event, cancel the conference.
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`8.
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`Motions to Amend.
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`a.
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`Any motion to amend a pleading shall NOT be accompanied by an opening
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`brief but shall, instead, be accompanied by a letter, not to exceed three (3) single-spaced pages,
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`describing the basis for the requested relief, and shall attach the proposed amended pleading as
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`well as a “blackline” comparison to the prior pleading.
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`b.
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`Within seven (7) days after the filing of a motion in compliance with this
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`Order, any party opposing such a motion shall file a responsive letter, not to exceed five (5) single-
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`spaced pages.
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`c.
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`Within three (3) days thereafter, the moving party may file a reply letter,
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`not to exceed two (2) single-spaced pages, and, by this same date, the parties may file a letter
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`requesting a teleconference to address the motion to amend.
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`9
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`009
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`9.
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`Motions to Strike.
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`a.
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`Any motion to strike any pleading or other document or testimony shall
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`NOT be accompanied by an opening brief but shall, instead, be accompanied by a letter, not to
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`exceed three (3) single-spaced pages, describing the basis for the requested relief, and shall attach
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`the document to be stricken.
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`b.
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`Within seven (7) days after the filing of a motion in compliance with this
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`Order, any party opposing such a motion shall file a responsive letter, not to exceed five (5) single-
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`spaced pages.
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`c.
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`Within three (3) days thereafter, the moving party may file a reply letter,
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`not to exceed two (2) single-spaced pages, and, by this same date, the parties may file a letter
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`requesting a teleconference to address the motion to strike.
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`10. Motions to Stay.
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`a.
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`Any motion to stay shall NOT be accompanied by an opening brief but
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`shall, instead, be accompanied by a letter, not to exceed three (3) single-spaced pages, describing
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`the basis for the requested relief.
`
`b.
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`Within seven (7) days after the filing of a motion in compliance with this
`
`Order, any party opposing such a motion shall file a responsive letter, not to exceed five (5) single-
`
`spaced pages.
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`c.
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`Within three (3) days thereafter, the moving party may file a reply letter,
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`not to exceed two (2) single-spaced pages, and, by this same date, the parties may file a letter
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`requesting a teleconference to address the motion to stay.
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`11.
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`Tutorial Describing the Technology and Matters in Issue. The parties may
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`(though they are not required to) provide the Court, no later than the date on which the Joint Claim
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`10
`
`010
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`

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`Case 1:23-cv-00087-CJB Document 20 Filed 03/28/23 Page 11 of 21 PageID #: 353
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`Construction Brief is due, with a tutorial on the technology at issue. In this regard, the parties may
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`separately submit a DVD/flash drive containing a tutorial that is not more than 30 minutes in
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`length. The tutorial should focus on the technology at issue and should not be used to argue claim
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`construction contentions. The parties may choose to file their tutorial(s) under seal, subject to any
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`protective order in effect. Each party may comment, in writing (in no more than 5 pages) on the
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`opposing party’s tutorial. Any such comment shall be filed no later than seven days after the Joint
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`Claim Construction Brief is due. As to the format selected, the parties should confirm the Court’s
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`technical abilities to access the information contained in the tutorial.
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`12.
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`Claim Construction Issue Identification. On September 29, 2023, the parties
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`shall exchange a list of those claim term(s)/phrase(s) that they believe need construction and their
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`proposed claim construction of those term(s)/phrase(s). This document will not be filed with the
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`Court. Subsequent to exchanging that list, the parties will meet and confer to prepare a Joint Claim
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`Construction Chart to be filed with the Court on October 13, 2023. The Joint Claim Construction
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`Chart,
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`in Word
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`format,
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`shall
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`be
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`e-mailed
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`simultaneously with
`
`filing
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`to
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`Deborah_Benyo@ded.uscourts.gov. The parties’ Joint Claim Construction Chart should identify
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`for the Court the term(s)/phrase(s) of the claim(s) in issue, and should include each party’s
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`proposed construction of the disputed claim language with citation(s) only to the intrinsic evidence
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`in support of their respective proposed constructions. A copy of the patent(s) at issue as well as
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`those portions of the intrinsic record relied upon shall be submitted with this Joint Claim
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`Construction Chart. In this joint submission, the parties shall not provide argument. Each party
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`shall file concurrently with the Joint Claim Construction Chart a “Motion for Claim Construction”
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`that requests the Court to adopt the claim construction position(s) of that party set forth in the Joint
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`Claim Construction Chart. The motion shall not contain any argument and shall simply state that
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`11
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`011
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`

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`Case 1:23-cv-00087-CJB Document 20 Filed 03/28/23 Page 12 of 21 PageID #: 354
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`the party “requests that the Court adopt the claim construction position[s] of [the party] set forth
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`in the Joint Claim Construction Chart (D.I. [ ]).”
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`13.
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`Claim Construction Briefing. Plaintiff shall serve, but not file, its opening brief,
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`not to exceed 20 pages, on claim construction on or before November 3, 2023. Defendant shall
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`serve, but not file, its answering claim construction brief, not to exceed 30 pages, on or before
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`November 17, 2023. Plaintiff shall serve, but not file, its reply brief, not to exceed 20 pages, on
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`or before November 27, 2023. Defendant shall serve, but not file, its sur-reply brief, not to exceed
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`10 pages, on or before December 4, 2023. No later than December 8, 2023, the parties shall file
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`a Joint Claim Construction Brief. The parties shall copy and paste their unfiled briefs into one
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`brief, with their positions on each claim term in sequential order, in substantially the form below:
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`I.
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`II.
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`A.
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`Agreed-upon Constructions
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`Disputed Constructions
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`[TERM 1]
`
`1.
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`2.
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`3.
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`4.
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`Plaintiff’s Opening Position
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`Defendant’s Answering Position
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`Plaintiff’s Reply Position
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`Defendant’s Sur-Reply Position
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`B.
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`[TERM 2]
`
`1.
`
`2.
`
`3.
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`4.
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`Plaintiff’s Opening Position
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`Defendant’s Answering Position
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`Plaintiff’s Reply Position
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`Defendant’s Sur-Reply Position
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`12
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`012
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`

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`Case 1:23-cv-00087-CJB Document 20 Filed 03/28/23 Page 13 of 21 PageID #: 355
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`The parties need not include any general summaries of the law relating to claim construction. If
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`there are any materials that would be submitted in an appendix, the parties shall file them in a joint
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`appendix.
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`14. Hearing on Claim Construction. Beginning at 11:00 am, on January 9,
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`2024, the Court will hear argument on claim construction. The parties shall notify the Court, by
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`joint letter submission, no later than the date on which the Joint Claim Construction Brief is due:
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`(i) whether they request leave to present testimony at the hearing; (ii) the amount of time they are
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`requesting be allocated to them for the hearing; and (iii) the order in which they intend to present
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`the claim terms at issue, including which side will present first for each term. Provided that the
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`parties comply with all portions of this Scheduling Order, and any other orders of the Court, the
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`Court will endeavor to issue its claim construction order within sixty (60) days of the conclusion
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`of the claim construction hearing.
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`15.
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`Interim Status Report. On April 12, 2024, counsel shall file a joint letter with the
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`Court with an interim report on the nature of the matters in issue and the progress of discovery to
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`date. Thereafter, if the Court deems it necessary, it will schedule a status conference.
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`16.
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`Supplementation. Absent agreement among the parties, and approval of the Court,
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`no later than April 12, 2024, the parties must finally supplement, inter alia, the identification of
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`all accused products and of all invalidity references.
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`17.
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`Case Dispositive Motions.
`
`a.
`
`All case dispositive motions, an opening brief, and affidavits, if any, in
`
`support of the motion shall be served and filed on or before September 12, 2024. Briefing will
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`be presented pursuant to the Court’s Local Rules, as modified by this Order.
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`13
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`013
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`

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`Case 1:23-cv-00087-CJB Document 20 Filed 03/28/23 Page 14 of 21 PageID #: 356
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`b.
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`No early motions without leave. No case dispositive motion under Rule 56
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`may be filed more than ten (10) days before the above date without leave of the Court. A party
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`seeking leave to file a case dispositive motion prior to ten (10) days before the deadline set forth
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`above shall do so by filing a motion and an accompanying letter brief with the Court of no more
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`than four (4) single-spaced pages, explaining the reasons why an earlier-filed motion should be
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`permitted. If any party wishes to contest this request, it may do so by filing a responsive letter brief
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`of no more than four (4) single-spaced pages, within seven (7) days from the date the requesting
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`party filed its brief. No reply briefs shall be filed.
`
`c.
`
`Concise Statement of Facts Requirement. Any motion for summary
`
`judgment shall be accompanied by a separate concise statement, not to exceed six pages, which
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`details each material fact that the moving party contends is essential for the Court’s resolution of
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`the summary judgment motion (not the entire case) and as to which the moving party contends
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`there is no genuine issue to be tried. Each fact shall be set forth in a separate numbered paragraph
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`and shall be supported by specific citation(s) to the record.
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`Any party opposing the motion shall include with its opposing papers a response to
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`the moving party’s concise statement, not to exceed six pages, which admits or disputes the facts
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`set forth in the moving party’s concise statement on a paragraph-by-paragraph basis. To the extent
`
`a fact is disputed, the basis of the dispute shall be supported by specific citation(s) to the record.
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`Failure to respond to a fact presented in the moving party’s concise statement of facts shall indicate
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`that fact is not in dispute for purposes of summary judgment. The party opposing the motion may
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`also include with its opposing papers a separate concise statement, not to exceed four pages, which
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`sets forth material facts as to which the opposing party contends there is a genuine issue to be tried.
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`14
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`014
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`Case 1:23-cv-00087-CJB Document 20 Filed 03/28/23 Page 15 of 21 PageID #: 357
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`Each fact asserted by the opposing party shall also be set forth in a separate numbered paragraph
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`and shall be supported by specific citation(s) to the record.
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`d.
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`The moving party shall include with its reply papers a response to the
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`opposing party’s concise statement of facts, not to exceed four pages, on a paragraph-by-paragraph
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`basis.
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`e.
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`Page limits combined with Daubert motion page limits. Each party is
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`permitted to file as many case dispositive motions as desired; provided, however, that each SIDE
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`will be limited to a combined total of 40 pages for all opening briefs, a combined total of 40 pages
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`for all answering briefs, and a combined total of 20 pages for all reply briefs regardless of the
`
`number of case dispositive motions that are filed. In the event that a party files, in addition to a
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`case dispositive motion, a Daubert motion to exclude or preclude all or any portion of an expert’s
`
`testimony, the total amount of pages permitted for all case dispositive and Daubert motions shall
`
`be increased to 50 pages for all opening briefs, 50 pages for all answering briefs, and 25 pages for
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`all reply briefs for each SIDE.1
`
`f.
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`Hearing. The Court will hear argument on all pending case dispositive and
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`Daubert motions on November 7, 2024, beginning at 11:00 a.m.
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`18.
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`Applications by Motion. Except as otherwise specified herein, any application to
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`the Court shall be by written motion filed with the Court. Any non-dispositive motion should
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`contain the statement required by Local Rule 7.1.1.
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`The parties must work together to ensure that the Court receives no more than a
`1
`total of 250 pages (i.e., 50 + 50 + 25 regarding one side’s motions, and 50 + 50 + 25 regarding the
`other side’s motions) of briefing on all case dispositive motions and Daubert motions that are
`covered by this scheduling order and any other scheduling order entered in any related case that is
`proceeding on a consolidated or coordinated pretrial schedule.
`
`15
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`015
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`Case 1:23-cv-00087-CJB Document 20 Filed 03/28/23 Page 16 of 21 PageID #: 358
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`19.
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`Pretrial Conference. On March 21, 2025, the Court will hold a pretrial
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`conference in court with counsel beginning at 1:00 p.m. Unless otherwise ordered by the
`
`Court, the parties should assume that filing the pretrial order satisfies the pretrial disclosure
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`requirement of Federal Rule of Civil Procedure 26(a)(3). The parties shall file with the Court the
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`joint proposed final pretrial order with the information required by the form of Patent Pretrial
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`Order, which can be found in the “Forms” tab on Judge Burke’s section of the Court’s
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`website(www.ded.uscourts.gov), on or before March 14, 2025. Unless otherwise ordered by
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`the Court, the parties shall comply with the timeframes set forth in Local Rule 16.3(d)(1)-(3) for
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`the preparation of the joint proposed final pretrial order.
`
`As noted in the Patent Pretrial Order, the parties shall include in their joint proposed pretrial
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`order, among other things:
`
`a.
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`a request for a specific number of hours for their trial presentations, as well
`
`as a requested number of days, based on the assumption that in a typical jury trial day (in which
`
`there is not jury selection, jury instruction, or deliberations), there will be 5 ½ to 6 ½ hours of trial
`
`time, and in a typical bench trial day there will be 6 to 7 hours of trial time;
`
`b.
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`their position as to whether the Court should allow objections to efforts to
`
`impeach a witness with prior testimony, including objections based on lack of completeness and/or
`
`lack of inconsistency;
`
`c.
`
`their position as to whether the Court should rule at trial on objections to
`
`expert testimony as beyond the scope of prior expert disclosures, taking time from the parties’ trial
`
`presentation to argue and decide such objections, or defer ruling on all such objections unless
`
`renewed in writing following trial, subject to the proviso that a party prevailing on such a post-
`
`16
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`016
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`Case 1:23-cv-00087-CJB Document 20 Filed 03/28/23 Page 17 of 21 PageID #: 359
`
`trial objection will be entitled to have all of its costs associated with a new trial paid for by the
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`party that elicited the improper expert testimony at the earlier trial; and;
`
`d.
`
`their position as to how to make motions for judgment as a matter of law,
`
`whether it be immediately at the appropriate point during trial or at a subsequent break, whether
`
`the jury should be in or out of the courtroom, and whether such motions may be supplemented in
`
`writing.
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`20. Motions in Limine. Motions in limine shall not be separately filed. All in limine
`
`requests and responses thereto shall be set forth in the proposed pretrial order. Each SIDE shall be
`
`limited to three (3) in limine requests, unless otherwise permitted by the Court. The in limine
`
`request and any response shall contain the authorities relied upon; each in limine request may be
`
`supported by a maximum of three (3) single-spaced pages of argument and may be opposed by a
`
`maximum of three (3) single-spaced pages of argument, and the party making the in limine request
`
`may add a maximum of one (1) additional single-spaced page in reply in support of its request. If
`
`more than one party is supporting or opposing an in limine request, such support or opposition
`
`shall be combined in a single three (3)-page single-spaced submission (and, if the moving party, a
`
`single one (1)-page single-spaced reply), unless otherwise ordered by the Court. No separate
`
`briefing shall be submitted on in limine requests, unless otherwise permitted by the Court.
`
`21.
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`Jury Instructions, Voir Dire, and Special Verdict Forms. Where a case is to be
`
`tried to a jury, pursuant to Local Rules 47.1 and 51.1 the parties should file (i) proposed voir dire,
`
`(ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict forms three
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`(3) full business days before the final pretrial conference. This submission shall be accompanied
`
`by a courtesy copy containing electronic files of these documents, in Word format, which may be
`
`submitted by e-mail to the trial judge’s staff.
`
`17
`
`017
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`

`

`Cas