Case 2:17-cv-00140-RWS-RSP Document 33-2 Filed 08/03/17 Page 1 of 10 PageID #: 656
`Case 2:17-cv—00140-RWS—RSP Document 33-2 Filed 08/03/17 Page 1 of 10 PageID #: 656
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`EXHIBIT B
`EXHIBIT B
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`Case 2:17-cv—00140-RWS—RSP Document 33-2 Filed 08/03/17 Page 1 of 10 PageID #: 656
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`EXHIBIT B
`EXHIBIT B
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`Case 2:17-cv-00140-RWS-RSP Document 33-2 Filed 08/03/17 Page 2 of 10 PageID #: 657
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CYWEE GROUP LTD.,
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`Plaintiff,
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`SAMSUNG ELECTRONICS CO., LTD. AND
`SAMSUNG ELECTRONICS AMERICA, INC.
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`Defendants.
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` CASE NO. 2:17-cv-00140-RWS-RSP
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`JURY TRIAL DEMANDED
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`[PROPOSED] DISCOVERY ORDER
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`After a review of the pleaded claims and defenses in this action, in furtherance of the
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`management of the Court’s docket under Federal Rule of Civil Procedure 16, and after receiving
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`the input of the parties to this action, it is ORDERED AS FOLLOWS:
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`1.
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`Initial Disclosures. In lieu of the disclosures required by Federal Rule of Civil Procedure
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`26(a)(1), each party shall disclose to every other party the following information:
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`(a)
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`the correct names of the parties to the lawsuit;
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`(b)
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`the name, address, and telephone number of any potential parties;
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`(c)
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`the legal theories and, in general, the factual bases of the disclosing party’s claims
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`or defenses (the disclosing party need not marshal all evidence that may be
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`offered at trial);
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`(d)
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`the name, address, and telephone number of persons having knowledge of
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`relevant facts, a brief statement of each identified person’s connection with the
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`case, and a brief, fair summary of the substance of the information known by any
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`such person;
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`(e)
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`any indemnity and insuring agreements under which any person or entity carrying
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`on an insurance business may be liable to satisfy part or all of a judgment entered
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`Case 2:17-cv-00140-RWS-RSP Document 33-2 Filed 08/03/17 Page 3 of 10 PageID #: 658
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`in this action or to indemnify or reimburse for payments made to satisfy the
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`judgment;
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`(f)
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`any settlement agreements relevant to the subject matter of this action; and
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`(g)
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`any statement of any party to the litigation.
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`2.
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`Disclosure of Expert Testimony. A party must disclose to the other parties the identity
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`of any witness it may use at trial to present evidence under Federal Rule of Evidence 702,
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`703 or 705, and:
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`(a)
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`if the witness is one retained or specially employed to provide expert testimony in
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`the case or one whose duties as the party’s employee regularly involve giving
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`expert testimony, provide the disclosures required by Federal Rule of Civil
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`Procedure 26(a)(2)(B) and Local Rule CV-26; and
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`(b)
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`for all other such witnesses, provide the disclosure required by Federal Rule of
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`Civil Procedure 26(a)(2)(C).
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`3.
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`Additional Disclosures. Without awaiting a discovery request,1 each party will make the
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`following disclosures to every other party:
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`(a)
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`provide the disclosures required by the Patent Rules for the Eastern District of
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`Texas with the following modifications to P.R. 3-1 and P.R. 3-3:
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`P.R. 3-1(g): If a party claiming patent infringement asserts that a
`claim element is a software limitation, the party need not comply
`with P.R. 3-1 for those claim elements until 30 days after source
`code for each Accused Instrumentality is produced by the opposing
`party. Thereafter, the party claiming patent infringement shall
`identify, on an element-by-element basis for each asserted claim,
`what source code of each Accused Instrumentality allegedly
`satisfies the software limitations of the asserted claim elements.
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`1 The Court anticipates that this disclosure requirement will obviate the need for requests for production.
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`Case 2:17-cv-00140-RWS-RSP Document 33-2 Filed 08/03/17 Page 4 of 10 PageID #: 659
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`4.
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`5.
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`P.R. 3-3(e): If a party claiming patent infringement exercises the
`provisions of P.R. 3-1(g), the party opposing a claim of patent
`infringement may serve, not later than 30 days after receipt of a
`P.R. 3-1(g) disclosure, supplemental “Invalidity Contentions” that
`amend only those claim elements identified as software limitations
`by the party claiming patent infringement.
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`(b)
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`produce or permit the inspection of all documents, electronically stored
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`information, and tangible things in the possession, custody, or control of the party
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`that are relevant to the pleaded claims or defenses involved in this action, except
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`to the extent these disclosures are affected by the time limits set forth in the Patent
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`Rules for the Eastern District of Texas; and
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`(c)
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`provide a complete computation of any category of damages claimed by any party
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`to the action, and produce or permit the inspection of documents or other
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`evidentiary material on which such computation is based, including materials
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`bearing on the nature and extent of injuries suffered, except that the disclosure of
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`the computation of damages may be deferred until the time for Expert Disclosures
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`if a party will rely on a damages expert.
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`Protective Orders. The Court will enter the parties’ Agreed Protective Order.
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`Discovery Limitations. The discovery in this cause is limited to the disclosures
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`described in Paragraphs 1-3 together with:
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`(a)
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`Forty (40) interrogatories per Side.2
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`(b)
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`Forty (40) requests for admissions per Side. Notwithstanding this limitation, any
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`party may serve an unlimited number of requests for admissions that seek an
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`admission as to the authenticity of a document.
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`2 “Side” means Plaintiff or the group of all Defendants.
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`Case 2:17-cv-00140-RWS-RSP Document 33-2 Filed 08/03/17 Page 5 of 10 PageID #: 660
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`(c)
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`Depositions of each Side, including depositions under Rule 30(b)(6), are not to
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`exceed fifty-five (55) hours per Side.
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`(d)
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`A non-translated deposition will not go longer than seven (7) hours per day on the
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`record on any given day, unless agreed to by the party being deposed, who shall
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`not unreasonably withhold consent to allow additional time if needed to fairly
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`examine the deponent and such additional time is no more than sixty (60)
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`minutes. This seven-hour per day limitation does not mean that a corporate
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`representative who is designated on more than one topic will be limited to seven
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`hours total time for his/her deposition.
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`(e)
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`Each testifying expert may be deposed for up to 7 hours of deposition time for
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`each report on a separate subject or separate party (e.g., if an expert opines on
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`infringement and validity, 14 hours of deposition testimony would be permitted).
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`(f)
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`(g)
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`(h)
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`For depositions using an interpreter, the provisions of § 12(a) apply.
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`Sixty (60) hours of non-party depositions per Side.
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`The parties will negotiate in good faith regarding additional deposition time
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`should any party reasonably believe that a specific need for additional time exists.
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`(i)
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`Unlimited depositions on written questions of custodians of business records for
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`non-parties.
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`(j)
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`Any party may later move to modify these limitations for good cause.
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`6.
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`Privileged Information. There is no duty to disclose privileged documents or
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`information. However, the parties are directed to meet and confer concerning privileged
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`documents or information after the Status Conference. By the deadline set in the Docket
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`Control Order, the parties shall exchange privilege logs identifying the documents or
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`Case 2:17-cv-00140-RWS-RSP Document 33-2 Filed 08/03/17 Page 6 of 10 PageID #: 661
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`information and the basis for any disputed claim of privilege in a manner that, without
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`revealing information itself privileged or protected, will enable the other parties to assess
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`the applicability of the privilege or protection. Any party may move the Court for an
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`order compelling the production of any documents or information identified on any other
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`party’s privilege log. If such a motion is made, the party asserting privilege shall respond
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`to the motion within the time period provided by Local Rule CV-7. The party asserting
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`privilege shall then file with the Court within 30 days of the filing of the motion to
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`compel any proof in the form of declarations or affidavits to support their assertions of
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`privilege, along with the documents over which privilege is asserted for in camera
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`inspection.
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`7.
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`Signature. The disclosures required by this Order shall be made in writing and signed by
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`the party or counsel and shall constitute a certification that, to the best of the signer’s
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`knowledge, information and belief, such disclosure is complete and correct as of the time
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`it is made. If feasible, counsel shall meet to exchange disclosures required by this Order;
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`otherwise, such disclosures shall be served as provided by Federal Rule of Civil
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`Procedure 5. The parties shall promptly file a notice with the Court that the disclosures
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`required under this Order have taken place.
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`8.
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`Duty to Supplement. After disclosure is made pursuant to this Order, each party is under
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`a duty to supplement or correct its disclosures immediately if the party obtains
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`information on the basis of which it knows that the information disclosed was either
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`incomplete or incorrect when made, or is no longer complete or true.
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`9.
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`Discovery Disputes.
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`Case 2:17-cv-00140-RWS-RSP Document 33-2 Filed 08/03/17 Page 7 of 10 PageID #: 662
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`(a)
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`Except in cases involving claims of privilege, any party entitled to receive
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`disclosures (“Requesting Party”) may, after the deadline for making disclosures,
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`serve upon a party required to make disclosures (“Responding Party”) a written
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`statement, in letter form or otherwise, of any reason why the Requesting Party
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`believes that the Responding Party’s disclosures are insufficient. The written
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`statement shall list, by category, the items the Requesting Party contends should
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`be produced. The parties shall promptly meet and confer. If the parties are unable
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`to resolve their dispute, then the Responding Party shall, within 14 days after
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`service of the written statement upon it, serve upon the Requesting Party a written
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`statement, in letter form or otherwise, which identifies (1) the requested items that
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`will be disclosed, if any, and (2) the reasons why any requested items will not be
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`disclosed. The Requesting Party may thereafter file a motion to compel.
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`(b)
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`In addition to the requirements of Local Rule CV-7(h) and (i), within 72 hours of
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`the Court setting any discovery motion for a hearing, each party’s lead attorney
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`(see Local Rule CV-11(a)) and local counsel shall meet and confer in person or by
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`telephone, without the involvement or participation of other attorneys, in an effort
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`to resolve the dispute without Court intervention.
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`(c)
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`Counsel are directed to contact the chambers of the undersigned for any “hot-line”
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`disputes before contacting the Discovery Hotline provided by Local Rule CV-
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`26(e). If the undersigned is not available, the parties shall proceed in accordance
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`with Local Rule CV-26(e).
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`10.
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`No Excuses. A party is not excused from the requirements of this Discovery Order
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`because it has not fully completed its investigation of the case, or because it challenges
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`Case 2:17-cv-00140-RWS-RSP Document 33-2 Filed 08/03/17 Page 8 of 10 PageID #: 663
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`the sufficiency of another party’s disclosures, or because another party has not made its
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`disclosures. Absent court order to the contrary, a party is not excused from disclosure
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`because there are pending motions to dismiss, to remand or to change venue.
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`11.
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`Filings. Only upon request from chambers shall counsel submit to the court courtesy
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`copies of any filings.
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`12.
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`Proposed Stipulations by the Parties Regarding Discovery:
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`(a)
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`For depositions using an interpreter, time will be measured using a 1.5x
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`multiplier. For example, the seven-hour time limit will be increased to 10.5 hours
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`for depositions with an interpreter, but will only count for 7 hours against the
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`parties’ limitations on depositions.
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`(b)
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`The parties agree that documents or information created or conveyed subsequent
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`to the filing of this case that are protected by attorney-client privilege or work
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`product doctrine, including any applicable common interest or joint defense
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`privileges, do not have to be identified on a privilege log, except as provided
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`under P.R. 3-7. The parties further agree that communications after the filing of
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`the Complaint between the parties and their counsel of record regarding separate
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`proceedings in the United States Patent and Trademark Office do not need to be
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`identified or logged.
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`(c)
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`A party who serves a subpoena in this matter on a non-party shall, prior to or at
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`the same time as serving on that non-party, provide a copy of the subpoena and all
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`attachments thereto to the other party. A party who receives documents from a
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`third party pursuant to a subpoena will reproduce those documents to the other
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`party within five (5) business days. Where reproduction of documents within five
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`Case 2:17-cv-00140-RWS-RSP Document 33-2 Filed 08/03/17 Page 9 of 10 PageID #: 664
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`(5) business days is not possible, the party who received the documents will
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`provide prompt notice to the other party and will work in good faith to resolve the
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`issue on a case-by-case basis. A party scheduling the deposition of a third-party
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`shall promptly notify the parties of the date and location of the deposition and
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`make all best efforts to schedule any deposition of the third-party no earlier than
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`five (5) days after the party scheduling the deposition provides the copies of any
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`documents received from that third party; provided, however, the scheduling party
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`shall not be obligated to reschedule a deposition if the third party produces
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`documents within five days before the deposition.
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`(d)
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`The Parties agree that the following materials shall not be subject to discovery in
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`this litigation: (a) draft expert reports; (b) notes or outlines made in preparation of
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`a draft expert report; (c) communications and conversations between counsel and
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`testifying or consulting experts, unless such conversations or communications are
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`relied upon as a basis for any opinions provided in an expert report or expert
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`testimony; (d) information, analyses, opinions, or other materials from any
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`outside consultant or expert, unless such information, analyses, opinions, or other
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`materials are sent to a testifying expert witness. Materials, communications, and
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`other information exempt from discovery under this paragraph shall be treated as
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`attorney-work product privileged but need not be logged on a privilege log. In
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`addition to these provisions, the provisions in Fed. R. Civ. P. 26(b)(4) still apply.
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`(e)
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`Each party is under a duty to supplement or correct any discovery responses
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`immediately if the party obtains information on the basis of which it knows that
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`Case 2:17-cv-00140-RWS-RSP Document 33-2 Filed 08/03/17 Page 10 of 10 PageID #: 665
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`the information disclosed was either incomplete or incorrect when made, or is no
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`longer complete or true.
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`(f)
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`Subject to Local Rule CV-5(a)(3), the parties agree to electronically serve all
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`correspondence, documents filed under seal, written discovery requests, and
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`responses to written discovery requests by e-mail to counsel of record, or if the
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`documents are too voluminous, by Dropbox, FTP, or other internet file service.
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`(g)
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`The parties will use best efforts to serve documents filed under seal by e-mail, or
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`if too voluminous, by Dropbox, FTP, or other internet file service within an hour
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`of filing.
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`(h)
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`The parties are conferring regarding electronic discovery, and will provide the
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`Court with a proposed e-Discovery Order.
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