Case 2:23-cv-00437-JRG Document 40 Filed 02/06/24 Page 1 of 8 PageID #: 567
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`EMERGING AUTOMOTIVE LLC,
`
` Plaintiff,
`
`v.
`
`KIA CORPORATION, ET. AL.,
`
`Defendants
`
`EMERGING AUTOMOTIVE LLC,
`
`Plaintiff,
`
`v.
`
`TOYOTA MOTOR CORP., ET AL.
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`Case No. 2:23-CV-0437-JRG
`(Lead Case)
`
`JURY TRIAL DEMANDED
`
`Civil Action No. 2:23-cv-00434-JRG
`(Member Case)
`
`JURY TRIAL DEMANDED
`
`DOCKET CONTROL ORDER
`
`In accordance with the scheduling conference held in this case, it is hereby ORDERED
`
`that the following schedule of deadlines is in effect until further order of this Court:
`
`Court’s
`Deadline
`
`Amended
`Deadline
`
`Event
`
`July 21, 2025 Unchanged
`
`*Jury Selection – 9:00 a.m. in Marshall, Texas
`
`7 days before
`Jury Selection
`
`Unchanged
`
`*Defendant to disclose final invalidity theories, final prior
`art references/combinations, and final equitable defenses.1
`
`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.
`
`Page 1 of 8
`
`TOYOTA EXHIBIT 1011
`
`

`

`Case 2:23-cv-00437-JRG Document 40 Filed 02/06/24 Page 2 of 8 PageID #: 568
`
`Court’s
`Deadline
`
`Amended
`Deadline
`
`Event
`
`10 days before
`Jury Selection
`
`Unchanged
`
`*Plaintiff to disclose final election of Asserted Claims.2
`
`June 23, 2025 Unchanged
`
`June 16, 2025 Unchanged
`
`June 9, 2025
`
`Unchanged
`
`June 9, 2025
`
`Unchanged
`
`June 2, 2025
`
`Unchanged
`
`* 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 – 9:00 a.m. in Marshall, Texas
`before Judge Rodney Gilstrap
`
`*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, Shelly Holmes,
`at
`shelly_holmes@txed.uscourts.gov.
`
`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, “10 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 Voir Dire.
`
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`

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`Case 2:23-cv-00437-JRG Document 40 Filed 02/06/24 Page 3 of 8 PageID #: 569
`
`Court’s
`Deadline
`
`Amended
`Deadline
`
`Event
`
`May 27, 2025 Unchanged
`
`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.
`
`May 27, 2025 Unchanged
`
`Serve Objections to Rebuttal Pretrial Disclosures
`
`May 19, 2025 Unchanged
`
`May 5, 2025
`
`Unchanged
`
`April 28, 2025 Unchanged
`
`April 14, 2025 Unchanged
`
`Serve Objections to Pretrial Disclosures; and Serve
`Rebuttal Pretrial Disclosures
`
`Serve Pretrial Disclosures (Witness List, Deposition
`Designations, and Exhibit List) by the Party with the
`Burden of Proof
`
`*Response to Dispositive Motions (including Daubert
`Motions). Responses to dispositive motions that were filed
`prior to the dispositive motion deadline, 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 (including
`Daubert
`Motions)
`
`No motion to strike expert testimony (including a Daubert
`motion) may be filed after this date without leave of the
`Court.
`
`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.
`
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`Page 3 of 8
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`

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`Case 2:23-cv-00437-JRG Document 40 Filed 02/06/24 Page 4 of 8 PageID #: 570
`
`Court’s
`Deadline
`
`Amended
`Deadline
`
`Event
`
`April 14, 2025 Unchanged
`
`*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.
`
`April 7, 2025
`
`Unchanged
`
`Deadline to Complete Expert Discovery
`
`March 24,
`2025
`
`Unchanged
`
`Serve Disclosures for Rebuttal Expert Witnesses
`
`March 3, 2025 Unchanged
`
`March 3, 2025 Unchanged
`
`Deadline to Complete Fact Discovery and File Motions to
`Compel Discovery
`
`Serve Disclosures for Expert Witnesses by the Party with
`the Burden of Proof
`
`February 6,
`2025
`
`January 16,
`2025
`
`January 2,
`2025
`
`December 26,
`2024
`
`December 19,
`2024
`
`December 5,
`2024
`
`Unchanged
`
`Comply with P.R. 3-7 (Opinion of Counsel Defenses)
`
`Unchanged
`
`Unchanged
`
`Unchanged
`
`Unchanged
`
`Unchanged
`
`*Claim Construction Hearing – 9:00 a.m. in Marshall,
`Texas before Judge Rodney Gilstrap
`
`*Comply with P.R. 4-5(d) (Joint Claim Construction
`Chart)
`
`*Comply with P.R. 4-5(c) (Reply Claim Construction
`Brief)
`
`Comply with P.R. 4-5(b) (Responsive Claim Construction
`Brief)
`
`Comply with P.R. 4-5(a) (Opening Claim Construction
`Brief) and Submit Technical Tutorials (if any)
`
`Good cause must be shown to submit technical tutorials
`after the deadline to comply with P.R. 4-5(a).
`
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`Case 2:23-cv-00437-JRG Document 40 Filed 02/06/24 Page 5 of 8 PageID #: 571
`
`Court’s
`Deadline
`
`Amended
`Deadline
`
`Event
`
`December 5,
`2024
`
`Unchanged
`
`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.
`
`Unchanged
`
`Comply with P.R. 4-4 (Deadline to Complete Claim
`Construction Discovery)
`
`Unchanged
`
`File Response to Amended Pleadings
`
`Unchanged
`
`*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)
`
`Unchanged
`
`Unchanged
`
`Unchanged
`
`Comply with P.R. 4-1 (Exchange Proposed Claim Terms)
`
`Unchanged
`
`Comply with Standing Order Regarding Subject-Matter
`Eligibility Contentions5
`
`Unchanged
`
`Comply with P.R. 3-3 & 3-4 (Invalidity Contentions)
`
`November 21,
`2024
`
`November 14,
`2024
`
`October 31,
`2024
`
`October 24,
`2024
`
`October 3,
`2024
`
`September 12,
`2024
`
`March 28,
`2024 (per ECF
`No. 17)
`
`March 28,
`2024 (per ECF
`No. 17)
`
`5http://www.txed.uscourts.gov/sites/default/files/judgeFiles/EDTX%20Standing%20Order%20R
`e%20Subject%20Matter%20Eligibility%20Contentions%20.pdf [https://perma.cc/RQN2-YU5P]
`
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`Case 2:23-cv-00437-JRG Document 40 Filed 02/06/24 Page 6 of 8 PageID #: 572
`
`Court’s
`Deadline
`
`Amended
`Deadline
`
`Event
`
`February 8,
`2024
`
`Unchanged
`
`*File Proposed Protective Order and Comply with
`Paragraphs 1 & 3 of the Discovery Order (Initial and
`Additional Disclosures)
`
`The Proposed Protective Order shall be filed as a separate
`motion with the caption indicating whether or not the
`proposed order is opposed in any part.
`
`February 1,
`2024
`
`Unchanged
`
`*File Proposed Docket Control Order and Proposed
`Discovery Order
`
`The Proposed Docket Control Order and Proposed
`Discovery Order shall be filed as separate motions with the
`caption indicating whether or not the proposed order is
`opposed in any part.
`
`January 25,
`2024
`
`Unchanged
`
`Join Additional Parties
`
`Unchanged
`
`January 18,
`2024
`(*) 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.
`
`Comply with P.R. 3-1 & 3-2 (Infringement Contentions)
`
`ADDITIONAL REQUIREMENTS
`
`Mediation: While certain cases may benefit from mediation, such may not be appropriate
`for every case. The Court finds that the Parties are best suited to evaluate whether mediation will
`benefit the case after the issuance of the Court’s claim construction order. Accordingly, the Court
`ORDERS the Parties to file a Joint Notice indicating whether the case should be referred for
`mediation within fourteen days of the issuance of the Court’s claim construction order. As a
`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
`
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`Case 2:23-cv-00437-JRG Document 40 Filed 02/06/24 Page 7 of 8 PageID #: 573
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`to the Court. Complete digital copies of the expert report(s) shall be delivered to the Court no later
`than the dispositive motion deadline.
`
`Indefiniteness: In lieu of early motions for summary judgment, the parties are directed to
`include any arguments related to the issue of indefiniteness in their Markman briefing, subject to
`the local rules’ normal page limits.
`
`Lead Counsel: The Parties are directed to Local Rule CV-11(a)(1), which provides that
`
`“[o]n the first appearance through counsel, each party shall designate a lead attorney on the
`pleadings or otherwise.” Additionally, once designated, a party’s lead attorney may only be
`changed by the filing of a Motion to Change Lead Counsel and thereafter obtaining from the Court
`an Order granting leave to designate different lead counsel.
`
`
`Motions for Continuance: The following excuses will not warrant a continuance nor
`justify a failure to comply with the discovery deadline:
`
`(a)
`
`(b)
`
`(c)
`
`The fact that there are motions for summary judgment or motions to dismiss pending;
`
`The fact that one or more of the attorneys is set for trial in another court on the same day,
`unless the other setting was made prior to the date of this order or was made as a special
`provision for the parties in the other case;
`
`The failure to complete discovery prior to trial, unless the parties can demonstrate that it
`was impossible to complete discovery despite their good faith effort to do so.
`
`Amendments to the Docket Control Order (“DCO”): Any motion to alter any date on
`the DCO shall take the form of a motion to amend the DCO. The motion to amend the DCO shall
`include a proposed order that lists all of the remaining dates in one column (as above) and the
`proposed changes to each date in an additional adjacent column (if there is no change for a date
`the proposed date column should remain blank or indicate that it is unchanged). In other words,
`the DCO in the proposed order should be complete such that one can clearly see all the remaining
`deadlines and the changes, if any, to those deadlines, rather than needing to also refer to an earlier
`version of the DCO.
`
`Proposed DCO: The Parties’ Proposed DCO should also follow the format described
`above under “Amendments to the Docket Control Order (‘DCO’).”
`
`Joint Pretrial Order: In the contentions of the Parties included in the Joint Pretrial Order,
`the Plaintiff shall specify all allegedly infringed claims that will be asserted at trial. The Plaintiff
`shall also specify the nature of each theory of infringement, including under which subsections of
`35 U.S.C. § 271 it alleges infringement, and whether the Plaintiff alleges divided infringement or
`infringement under the doctrine of equivalents. Each Defendant shall indicate the nature of each
`theory of invalidity, including invalidity for anticipation, obviousness, subject-matter eligibility,
`written description, enablement, or any other basis for invalidity. The Defendant shall also specify
`each prior art reference or combination of references upon which the Defendant shall rely at trial,
`with respect to each theory of invalidity. The contentions of the Parties may not be amended,
`supplemented, or dropped without leave of the Court based upon a showing of good cause.
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`Case 2:23-cv-00437-JRG Document 40 Filed 02/06/24 Page 8 of 8 PageID #: 574
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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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`
`So Ordered this
`Feb 6, 2024
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`Page 8 of 8
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