Case 2:23-cv-00202-JRG-RSP Document 95 Filed 09/16/24 Page 1 of 7 PageID #: 2771
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`XR COMMUNICATIONS, LLC, dba
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`VIVATO TECHNOLOGIES,
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`SECOND AMENDED DOCKET CONTROL ORDER
`Considering the Joint Motion (Dkt. No. 93), it is hereby ORDERED that the
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`CASE NO. 2:23-CV-00202-JRG-RSP
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`(LEAD CASE)
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`Plaintiff,
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`v.
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`AT&T SERVICES INC.; AT&T
`MOBILITY LLC; and AT&T CORP.,
`Defendants,
`NOKIA OF AMERICA
`CORPORATION and ERICSSON
`INC.,
`Intervenors.
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`following schedule of deadlines is in effect for the six cases consolidated herein until further
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`order of this court:
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`Current Date Amended Date
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`Event
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`July 21, 2025
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`7 days before
`Jury Selection
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`10 days before
`Jury Selection
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`June 23, 2025
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`*Jury Selection - 9:00 a.m. in Marshall, Texas
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`*Defendant to disclose final invalidity theories, final
`prior art references/combinations, and final equitable
`defenses.
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`*Plaintiff to disclose final election of Asserted Claims.
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`* 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
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`1 The Parties are referred to the Court’s Standing Order Regarding Use of Juror Questionnaires in Advance of Voir Dire.
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`Case 2:23-cv-00202-JRG-RSP Document 95 Filed 09/16/24 Page 2 of 7 PageID #: 2772
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`June 16, 2025
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`June 9, 2025
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`June 9, 2025
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`May 27, 2025
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`May 27, 2025
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`May 27, 2025
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`May 19, 2025
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`May 5, 2025
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`*Pretrial Conference - 9:00 a.m. in Marshall, Texas
`before Judge Roy Payne
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`*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.
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`*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
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`*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.
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`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
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`Serve Objections to Rebuttal Pretrial Disclosures
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`Serve Objections to Pretrial Disclosures; and Serve
`Rebuttal Pretrial Disclosures
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`Serve Pretrial Disclosures (Witness List, Deposition
`Designations, and Exhibit List) by the Party with the
`Burden of Proof
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`Case 2:23-cv-00202-JRG-RSP Document 95 Filed 09/16/24 Page 3 of 7 PageID #: 2773
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`April 14, 2025
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`April 14, 2025
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`April 7, 2025
`March 27, 2025
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`February 28,
`2025
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`February 14,
`2025
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`February 25,
`2025
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`February 4,
`2025
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`*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.
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`*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.
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`April 14, 2025
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`Defendants narrow prior art grounds to not more than 26
`total prior art grounds.
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`April 11, 2025
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`Plaintiff narrows asserted claims to no more than 18
`claims.
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`Deadline to Complete Expert Discovery
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`Serve Disclosures for Rebuttal Expert Witnesses
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`Serve Disclosures for Expert Witnesses by the Party with
`the Burden of Proof
`Defendants narrow prior art grounds to not more than 40
`total prior art grounds.
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`February 21,
`2025
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`Plaintiff narrows asserted claims to no more than 24
`claims.
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`Deadline to Complete Fact Discovery and File Motions to
`Compel Discovery
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`Comply with P.R. 3-7 (Opinion of
`Counsel Defenses)
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`*Claim Construction Hearing - 9:00 a.m. in Marshall,
`Texas before Judge Roy Payne
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`Case 2:23-cv-00202-JRG-RSP Document 95 Filed 09/16/24 Page 4 of 7 PageID #: 2774
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`January 21,
`2025
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`January 16,
`2025
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`January 9, 2025
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`December 12,
`2024
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`December 24,
`2024
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`November 21,
`2024
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`December 3,
`2024
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`November 19,
`2024
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`*Comply with P.R. 4-5(d)
`(Joint Claim Construction Chart)
`*Comply with P.R. 4-5(c)
`(Reply Claim Construction Brief)
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`Comply with P.R. 4-5(b)
`(Responsive Claim Construction Brief)
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`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).
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`to Substantially Complete Document
`Deadline
`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.
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`Comply with P.R. 4-4 (Deadline to Complete Claim
`Construction Discovery)
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`File Response to Amended Pleadings
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`November 21,
`2024
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`Deadline for Parties to serve 30(b)(1) and 30(b)(6)
`deposition notices.
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`*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.
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`November 4,
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`Comply with P.R. 4-3
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`Case 2:23-cv-00202-JRG-RSP Document 95 Filed 09/16/24 Page 5 of 7 PageID #: 2775
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`2024
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`October 10,
`2024
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`(Joint Claim Construction Statement)
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`Comply with P.R. 4-2
`(Exchange Preliminary Claim Constructions)
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`September 26,
`2024
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`Comply with P.R. 4-1
`(Exchange Proposed Claim Terms)
`(*) 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.
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`ADDITIONAL REQUIREMENTS
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`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 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.
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`Lead Counsel: The Parties are directed to Local Rule CV-11(a)(1), which provides that
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`Case 2:23-cv-00202-JRG-RSP Document 95 Filed 09/16/24 Page 6 of 7 PageID #: 2776
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`“[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.
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`Motions for Continuance: The following will not warrant a continuance nor justify a
`failure to comply with the discovery deadline:
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`(a) The fact that there are motions for summary judgment or motions to dismiss pending;
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`(b) 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;
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`(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.
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`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.
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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’).”
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`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.
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`Case 2:23-cv-00202-JRG-RSP Document 95 Filed 09/16/24 Page 7 of 7 PageID #: 2777
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`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.
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