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Case 2:17-cv-00513-JRG Document 63 Filed 12/18/17 Page 1 of 11 PageID #: 1356
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT, LLC
`
`
`
`Plaintiff,
`
`v.
`
`HUAWEI DEVICE USA INC., HUAWEI
`DEVICE CO., LTD. AND HUAWEI DEVICE
`(DONGGUAN) CO., LTD.
`
`Defendants.
`
`LEAD CASE NO. 2:17-cv-513-JRG
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`AGIS SOFTWARE DEVELOPMENT, LLC
`
`Plaintiff,
`
`v.
`
`LG ELECTRONICS, INC.
`
`Defendant.
`
`MEMBER CASE NO. 2:17-cv-515-JRG
`
`
`JURY TRIAL DEMANDED
`
`
`DISCOVERY ORDER
`After a review of the pleaded claims and defenses in this action, in furtherance of the
`
`management of the Court’s docket under Federal Rule of Civil Procedure 16, and after receiving
`
`the input of the parties to this action, it is ORDERED AS FOLLOWS:
`
`1.
`
`Initial Disclosures. In lieu of the disclosures required by Federal Rule of Civil
`
`Procedure 26(a)(1), each party shall disclose to every other party the following
`
`information:
`
`(a)
`
`(b)
`
`the correct names of the parties to the lawsuit;
`
`the name, address, and telephone number of any potential parties;
`
`

`

`Case 2:17-cv-00513-JRG Document 63 Filed 12/18/17 Page 2 of 11 PageID #: 1357
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`(c)
`
`the legal theories and, in general, the factual bases of the disclosing party’s claims
`
`or defenses (the disclosing party need not marshal all evidence that may be
`
`offered at trial);
`
`(d)
`
`the name, address, and telephone number of persons having knowledge of
`
`relevant facts, a brief statement of each identified person’s connection with the
`
`case, and a brief, fair summary of the substance of the information known by any
`
`such person;
`
`(e)
`
`any indemnity and insuring agreements under which any person or entity carrying
`
`on an insurance business may be liable to satisfy part or all of a judgment entered
`
`in this action or to indemnify or reimburse for payments made to satisfy the
`
`judgment;
`
`(f)
`
`(g)
`
`any settlement agreements relevant to the subject matter of this action; and
`
`any statement of any party to the litigation.
`
`2.
`
`Disclosure of Expert Testimony. A party must disclose to the other parties the identity
`
`of any witness it may use at trial to present evidence under Federal Rule of Evidence 702,
`
`703 or 705, and:
`
`(a)
`
`if the witness is one retained or specially employed to provide expert testimony in
`
`the case or one whose duties as the party’s employee regularly involve giving
`
`expert testimony, provide the disclosures required by Federal Rule of Civil
`
`Procedure 26(a)(2)(B) and Local Rule CV-26; and
`
`(b)
`
`for all other such witnesses, provide the disclosure required by Federal Rule of
`
`Civil Procedure 26(a)(2)(C).
`
`

`

`Case 2:17-cv-00513-JRG Document 63 Filed 12/18/17 Page 3 of 11 PageID #: 1358
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`3.
`
`Additional Disclosures. Without awaiting a discovery request,1 each party will make
`
`the following disclosures to every other party:
`
`(a)
`
`provide the disclosures required by the Patent Rules for the Eastern District of
`
`Texas with the following modifications to P.R. 3-1 and P.R. 3-3:
`
`i.
`
`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.
`
`ii.
`
`If a party claiming patent infringement exercises the provisions of
`
`Paragraph 3(a)(i) of this Discovery Order, the party opposing a claim of
`
`patent infringement may serve, not later than 30 days after receipt of a
`
`Paragraph 3(a)(i) disclosure, supplemental “Invalidity Contentions” that
`
`amend only those claim elements identified as software limitations by the
`
`party claiming patent infringement.
`
`(b)
`
`produce or permit the inspection of all documents, electronically stored
`
`information, and tangible things in the possession, custody, or control of the party
`
`that are relevant to the pleaded claims or defenses involved in this action, except
`
`
`1
`The Court anticipates that this disclosure requirement will obviate the need for requests
`for production.
`
`

`

`Case 2:17-cv-00513-JRG Document 63 Filed 12/18/17 Page 4 of 11 PageID #: 1359
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`to the extent these disclosures are affected by the time limits set forth in the Patent
`
`Rules for the Eastern District of Texas; and
`
`(c)
`
`provide a complete computation of any category of damages claimed by any party
`
`to the action, and produce or permit the inspection of documents or other
`
`evidentiary material on which such computation is based, including materials
`
`bearing on the nature and extent of injuries suffered, except that the disclosure of
`
`the computation of damages may be deferred until the time for Expert Disclosures
`
`if a party will rely on a damages expert.
`
`4.
`
`5.
`
`Protective Orders. The Court will enter the parties’ Agreed Protective Order.
`
`Discovery Limitations. The discovery in this cause is limited to the disclosures
`
`described in Paragraphs 1-3 together with:
`
`(a) Definition of “Defendant”: For purposes of this section, the “Huawei
`
`Defendants” collectively refers to Huawei Device USA Inc., Huawei Device
`
`Co. Ltd., and Huawei Device (Dongguan) Co. Ltd.) and the “LG Defendant”
`
`refers to LG (LG Electronics, Inc.).
`
`(b) Interrogatories: Plaintiff may serve 30 interrogatories on the Huawei
`
`Defendants and on the LG Defendant. The Huawei Defendants and the LG
`
`Defendant collectively may serve 20 interrogatories on Plaintiff, and
`
`separately each may serve an additional 10 interrogatories on Plaintiff.
`
`(c) Requests for Admission: Plaintiff may serve 30 requests for admission on the
`
`Huawei Defendants and on the LG Defendant. The Huawei Defendants and
`
`the LG Defendant collectively may serve 20 requests for admission on
`
`Plaintiff, and separately each may serve and additional 10 requests for
`
`

`

`Case 2:17-cv-00513-JRG Document 63 Filed 12/18/17 Page 5 of 11 PageID #: 1360
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`admission on Plaintiff. Requests for admissions for authentication of
`
`documents and things and/or whether a document qualifies as a printed
`
`publication under 35 U.S.C. § 102 shall be unlimited. Should the receiving
`
`party object to any requests for admissions directly solely towards the
`
`authentication of documents and things as unnecessary, unreasonable, and/or
`
`directed at issues other than authentication, the receiving party must make
`
`such objections in writing within ten (10) days of receiving such requests,
`
`after which the parties are required to meet and confer in good faith to
`
`determine whether the requests are necessary, reasonable, and/or properly
`
`directed towards authentication only.
`
`(d) Fact Depositions: Plaintiff may take up to 45 total hours of deposition
`
`testimony (inclusive of both 30(b)(1) and 30(b)(6) depositions) of the Huawei
`
`Defendants and the LG Defendant. The Huawei Defendants and the LG
`
`Defendant may collectively take up to 35 hours of deposition testimony of
`
`Plaintiff (inclusive of both 30(b)(1) and 30(b)(6) depositions), and separately
`
`each may take an additional 10 hours of deposition testimony of Plaintiff
`
`(inclusive of both 30(b)(1) and 30(b)(6) depositions). Depositions of experts
`
`and third parties do not count against these limits (see ¶ 5(f) below). Any
`
`deposition of Malcolm Beyer in his individual capacity shall count against the
`
`35-hour limit for all Defendants.
`
`(e) Depositions on written questions of custodians of business records for third
`
`parties shall not count against the deposition hours limits set forth in
`
`Paragraph 5(d) hereof.
`
`

`

`Case 2:17-cv-00513-JRG Document 63 Filed 12/18/17 Page 6 of 11 PageID #: 1361
`
`(f) Expert Depositions: Plaintiff is limited to four testifying expert witnesses.
`
`The Huawei Defendants and the LG Defendant each are limited to four
`
`testifying expert witnesses or two individual testifying expert witnesses plus
`
`two testifying expert witnesses common to other Defendants. Plaintiff may
`
`depose each of Defendant’s experts for up to 7 hours, except that Plaintiff may
`
`depose an expert witness common to more than one Defendant for up to 10
`
`hours. Defendants as a group may collectively depose each of Plaintiff’s
`
`validity experts for up to 10 hours. Each Defendant may depose each of
`
`Plaintiff’s infringement experts for up to 7 hours. Each Defendant may
`
`depose each of Plaintiff’s damages experts for up to 7 hours.
`
`(g) Third Parties: Plaintiff, the Huawei Defendants and the LG Defendant may
`
`each take up to 40 hours of non-party deposition testimony. Any deposition
`
`of non-party Advanced Ground Information Systems, Inc. or depositions of
`
`Huawei or LG entities that are not currently parties to this lawsuit shall be
`
`counted against this limit. The parties agree to meet and confer in good faith
`
`in the event that a party seeks a reasonable enlargement of the agreed-upon
`
`hours of non-party deposition testimony based upon case developments after
`
`the date of this Order.
`
`(h) Any party may later move to modify these limitations for good cause.
`
`6.
`
`Privileged Information. There is no duty to disclose privileged documents or
`
`information. However, the parties are directed to meet and confer concerning privileged
`
`documents or information after the Status Conference. By the deadline set in the Docket
`
`Control Order, the parties shall exchange privilege logs identifying the documents or
`
`

`

`Case 2:17-cv-00513-JRG Document 63 Filed 12/18/17 Page 7 of 11 PageID #: 1362
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`information and the basis for any disputed claim of privilege in a manner that, without
`
`revealing information itself privileged or protected, will enable the other parties to assess
`
`the applicability of the privilege or protection. Any party may move the Court for an
`
`order compelling the production of any documents or information identified on any other
`
`party’s privilege log. If such a motion is made, the party asserting privilege shall respond
`
`to the motion within the time period provided by Local Rule CV-7. The party asserting
`
`privilege shall then file with the Court within 30 days of the filing of the motion to
`
`compel any proof in the form of declarations or affidavits to support their assertions of
`
`privilege, along with the documents over which privilege is asserted for in camera
`
`inspection.
`
`7.
`
`Signature. The disclosures required by this Order shall be made in writing and signed by
`
`the party or counsel and shall constitute a certification that, to the best of the signer’s
`
`knowledge, information and belief, such disclosure is complete and correct as of the time
`
`it is made. If feasible, counsel shall meet to exchange disclosures required by this Order;
`
`otherwise, such disclosures shall be served as provided by Federal Rule of Civil
`
`Procedure 5. The parties shall promptly file a notice with the Court that the disclosures
`
`required under this Order have taken place.
`
`8.
`
`Duty to Supplement. After disclosure is made pursuant to this Order, each party is
`
`under a duty to supplement or correct its disclosures immediately if the party obtains
`
`information on the basis of which it knows that the information disclosed was either
`
`incomplete or incorrect when made, or is no longer complete or true.
`
`9.
`
`Discovery Disputes.
`
`

`

`Case 2:17-cv-00513-JRG Document 63 Filed 12/18/17 Page 8 of 11 PageID #: 1363
`
`(a)
`
`Except in cases involving claims of privilege, any party entitled to receive
`
`disclosures (“Requesting Party”) may, after the deadline for making disclosures,
`
`serve upon a party required to make disclosures (“Responding Party”) a written
`
`statement, in letter form or otherwise, of any reason why the Requesting Party
`
`believes that the Responding Party’s disclosures are insufficient. The written
`
`statement shall list, by category, the items the Requesting Party contends should
`
`be produced. The parties shall promptly meet and confer. If the parties are
`
`unable to resolve their dispute, then the Responding Party shall, within 7 days
`
`after service of the written statement upon it, serve upon the Requesting Party a
`
`written statement, in letter form or otherwise, which identifies (1) the requested
`
`items that will be disclosed, if any, and (2) the reasons why any requested items
`
`will not be disclosed. The Requesting Party may thereafter file a motion to
`
`compel.
`
`(b) An opposed discovery related motion, or any response thereto, shall not exceed 7
`
`pages. Attachments to a discovery related motion, or a response thereto, shall not
`
`exceed 5 pages per attachment, exclusive of the discovery requests and/or
`
`responses at issue which may exceed 5 pages. No further briefing is allowed
`
`absent a request or order from the Court.
`
`(c)
`
`Prior to filing any discovery related motion, the parties must fully comply with
`
`the substantive and procedural conference requirements of Local Rule CV-7(h)
`
`and (i). Within 72 hours of the Court setting any discovery motion for a hearing,
`
`each party’s lead attorney (see Local Rule CV-11(a)) and local counsel shall meet
`
`

`

`Case 2:17-cv-00513-JRG Document 63 Filed 12/18/17 Page 9 of 11 PageID #: 1364
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`and confer in person or by telephone, without the involvement or participation of
`
`other attorneys, in an effort to resolve the dispute without Court intervention.
`
`(d)
`
`Counsel shall promptly notify the Court of the results of that meeting by filing a
`
`joint report of no more than two pages. Unless excused by the Court, each party’s
`
`lead attorney shall attend any discovery motion hearing set by the Court (though
`
`the lead attorney is not required to argue the motion).
`
`(e)
`
`Any change to a party’s lead attorney designation must be accomplished by
`
`motion and order.
`
`(f)
`
`Counsel are directed to contact the chambers of the undersigned for any “hot-line”
`
`disputes before contacting the Discovery Hotline provided by Local Rule CV-
`
`26(e). If the undersigned is not available, the parties shall proceed in accordance
`
`with Local Rule CV-26(e).
`
`
`
`10.
`
`No Excuses. A party is not excused from the requirements of this Discovery Order
`
`because it has not fully completed its investigation of the case, or because it challenges
`
`the sufficiency of another party’s disclosures, or because another party has not made its
`
`disclosures. Absent court order to the contrary, a party is not excused from disclosure
`
`because there are pending motions to dismiss, to remand or to change venue.
`
`11.
`
`Filings. Only upon request from chambers shall counsel submit to the court courtesy
`
`copies of any filings.
`
`12.
`
`Proposed Stipulations by the Parties Regarding Discovery.
`
`(a) The parties agree that they will serve each other with copies of any subpoena or
`
`deposition notice directed to a third-party. A party receiving documents from a
`
`third party will provide copies of those documents to each other party within 5
`
`

`

`Case 2:17-cv-00513-JRG Document 63 Filed 12/18/17 Page 10 of 11 PageID #: 1365
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`business days of receiving those documents. The parties agree to consult with
`
`each other before scheduling any third-party deposition and to provide at least 5
`
`business days’ notice of the selected court reporting agency to allow for the
`
`coordination of remote depositions, including the logistics of soft copy exhibits.
`
`(b) The parties agree that, unless good cause is shown, the parties shall not be
`
`required to log any privileged documents created on or after June 21, 2017.
`
`(c) The parties agree to accept service by email to all counsel of record for the party
`
`to be served.
`
`(d) The parties will submit a proposed e-discovery order within 30 days after the
`
`Scheduling Conference.
`
`(e) Pursuant to Federal Rule of Evidence 502(d), inadvertent production of materials
`
`covered by the attorney-client privilege or work-product protection is not a waiver
`
`in the pending case or any other federal or state proceeding. For example, the
`
`mere production of privilege or work-product protected documents in this case as
`
`part of a mass production is not itself a waiver in this case or any other federal or
`
`state proceeding. A producing party may assert privilege or protection over
`
`inadvertently produced documents within a reasonable time after becoming aware
`
`of the inadvertent production by notifying the receiving party of the assertion of
`
`privilege or protection in writing. In case of inadvertent production, at the
`
`producing party’s request, the receiving party shall immediately return or destroy
`
`the inadvertently produced materials. The producing party will provide a privilege
`
`log in accordance with Paragraph 6.
`
`

`

`Case 2:17-cv-00513-JRG Document 63 Filed 12/18/17 Page 11 of 11 PageID #: 1366
`
`13.
`
`Standing Orders. The parties and counsel are charged with notice of and are required to
`
`fully comply with each of the Standing Orders of this Court. Such are posted on the
`
`Court’s website at http://www.txed.uscourts.gov/page1.shtml?location=info:judge&judge=17.
`
`The substance of some such orders may be included expressly within this Discovery
`
`Order, while others (including the Court’s Standing Order Regarding Protection of
`
`Proprietary and/or Confidential Information to Be Presented to the Court During Motion
`
`and Trial Practice) are incorporated herein by reference. All such standing orders shall be
`
`binding on the parties and counsel, regardless of whether they are expressly included
`
`herein or made a part hereof by reference.
`
`

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