Case 2:22-cv-00277-RWS-RSP Document 171 Filed 02/26/24 Page 1 of 5 PageID #: 33043
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`AX WIRELESS LLC,
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`Plaintiff,
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`v.
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`DELL INC. ET AL.,
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`Defendants.
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`§
`§
`§
`§
`§
`§
`§
`§
`§
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`Case No. 2:22-cv-00277-RWS-RSP
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`SIXTH AMENDED DOCKET CONTROL ORDER
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`Before the Court is the Joint Motion to Amend the Docket Control Order which is
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`GRANTED. (Dkt. No. 169). It is hereby ORDERED that the following schedule of deadlines is
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`in effect until further order of this Court:
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`Original Date Amended Date Event
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`July 15, 2024
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`7 days before
`Jury Selection
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`10 days before
`Jury Selection
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`May 13, 2024
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`June 19, 2024
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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.
`Defendant’s Final Election of Asserted Prior Art shall
`identify no more than six asserted prior art references per
`patent from among the ten prior art references previously
`identified for that particular patent and no more than a
`total of twenty references. For purposes of this Final
`Election of
`Asserted Prior Art, each obviousness combination counts
`as a separate prior art reference.
`*Plaintiff to disclose final election of Asserted Claims.
`Plaintiff’s Final Election of Asserted Claims shall
`identify no more than five asserted claims per patent
`from among the eight previously identified claims and
`no more than a total of sixteen asserted claims
`*If a juror questionnaire is to be used, an editable (in
`Microsoft Word format) questionnaire shall be jointly
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`1
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`DELL-1042
`10,079,707
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`Case 2:22-cv-00277-RWS-RSP Document 171 Filed 02/26/24 Page 2 of 5 PageID #: 33044
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`Original Date Amended Date Event
`submitted to the Deputy Clerk in Charge by this date. 1
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`May 13, 2024
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`June 14, 2024
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`April 30, 2024
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`June 7, 2024
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`April 30, 2024
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`June 7, 2024
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`*Pretrial Conference – 9:00 a.m. in Marshall,
`Texas before Judge Roy Payne
`*Notify Court of Agreements Reached During Meet and
`Confer
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`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
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`April 23, 2024
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`June 5, 2024
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`*File Notice of Request for Daily Transcript or Real
`Time Reporting.
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`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.
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`April 23, 2024
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`June 5, 2024
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`File Motions in Limine
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`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
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`April 23, 2024
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`June 5, 2024
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`April 16, 2024 May 29, 2024
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`Serve Objections to Pretrial Disclosures; and Serve
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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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`2
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`Case 2:22-cv-00277-RWS-RSP Document 171 Filed 02/26/24 Page 3 of 5 PageID #: 33045
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`Original Date Amended Date Event
`Rebuttal Pretrial Disclosures
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`April 4, 2024
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`May 22, 2024
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`April 4, 2024
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`May 29, 2024
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`March 26, 2024 May 15, 2024
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`March 26, 2024 May 15, 2024
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`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, 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)
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`No motion to strike expert testimony (including a
`Daubert motion) may be filed after this date without
`leave of the Court.
`*File Dispositive Motions
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`No dispositive motion may be filed after this date
`without leave of the Court.
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`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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`March 20, 2024 May 8, 2024
`March 8, 2024 April 10, 2024
`February 15,
`March 20, 2024
`2024
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`Deadline to Complete Expert Discovery
`Serve Disclosures for Rebuttal Expert Witnesses
`Serve Disclosures for Expert Witnesses by the Party with
`the Burden of Proof
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`(*) 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.
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`2 The parties are directed 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.
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`3
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`Case 2:22-cv-00277-RWS-RSP Document 171 Filed 02/26/24 Page 4 of 5 PageID #: 33046
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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.
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`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.
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`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
`“[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:
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`(a)
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`(b)
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`(c)
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`The fact that there are motions for summary judgment or motions to dismiss pending;
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`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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`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,
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`Case 2:22-cv-00277-RWS-RSP Document 171 Filed 02/26/24 Page 5 of 5 PageID #: 33047
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`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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`5
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