Case 2:17-cv-00516-JRG Document 45 Filed 10/13/17 Page 1 of 8 PageID #: 374
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`Case No. 2:17-CV-0516-JRG
`
`§§§§§
`
`AGIS SOFTWARE DEVELOPMENT LLC
`
`v.
`
`APPLE, INC.
`
`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)
`
`(c)
`
`the correct names of the parties to the lawsuit;
`
`the name, address, and telephone number of any potential parties;
`
`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 THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`Case No. 2:17-CV-0516-JRG
`
`§§§§§
`
`AGIS SOFTWARE DEVELOPMENT LLC
`
`v.
`
`APPLE, INC.
`
`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)
`
`(c)
`
`the correct names of the parties to the lawsuit;
`
`the name, address, and telephone number of any potential parties;
`
`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
`
`
`
`Case 2:17-cv-00516-JRG Document 45 Filed 10/13/17 Page 2 of 8 PageID #: 375
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`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
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`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).
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`3.
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`Additional Disclosures. Without awaiting a discovery request,1 each party will make
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`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
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`software limitation, the party need not comply with P.R. 3-1 for those
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`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
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`1 The Court anticipates that this disclosure requirement will obviate the need for requests
`for production.
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`- 2 -
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`
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`Case 2:17-cv-00516-JRG Document 45 Filed 10/13/17 Page 3 of 8 PageID #: 376
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`basis for each asserted claim, what source code of each Accused
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`Instrumentality allegedly satisfies the software limitations of the asserted
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`claim elements.
`
`ii.
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`If a party claiming patent infringement exercises the provisions of
`
`Paragraph 3(a)(i) of this Discovery Order, the party opposing a claim of
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`patent infringement may serve, not later than 30 days after receipt of a
`
`Paragraph 3(a)(i) disclosure, supplemental “Invalidity Contentions” that
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`amend only those claim elements identified as software limitations by the
`
`party claiming patent infringement.
`
`(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
`
`that are relevant to the pleaded claims or defenses involved in this action, except
`
`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:
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`- 3 -
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`
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`Case 2:17-cv-00516-JRG Document 45 Filed 10/13/17 Page 4 of 8 PageID #: 377
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`(a) The parties are permitted up to 25 interrogatories per side.
`
`(b) The parties are permitted up to 40 requests for admission per side, except
`
`requests for admission directed to the authentication of documents and things,
`
`which shall be unlimited.
`
`(c) Plaintiff may take up to 70 total hours of deposition testimony (inclusive of
`
`both 30(b)(1) and 30(b)(6) depositions) of Defendant2. Defendant may take
`
`up to 70 total 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.
`
`(d) Depositions on written questions of custodians of business records for third
`
`parties.
`
`(e) Plaintiff and Defendant are each limited to 4 testifying expert witnesses per
`
`side. The parties are permitted to depose each of the opposing side’s experts
`
`for up to 7 hours for each report submitted. “Side” means a party or a group
`
`of parties with a common interest.
`
`(f) 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
`
`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
`
`2
`
`“Defendant” refers to Apple, Inc.
`
`- 4 -
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`
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`Case 2:17-cv-00516-JRG Document 45 Filed 10/13/17 Page 5 of 8 PageID #: 378
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`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.
`
`(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
`
`- 5 -
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`
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`Case 2:17-cv-00516-JRG Document 45 Filed 10/13/17 Page 6 of 8 PageID #: 379
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`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
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`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. 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
`
`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)
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`Counsel shall promptly notify the Court of the results of that meeting by filing a
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`joint report of no more than two pages. Unless excused by the Court, each party’s
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`- 6 -
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`
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`Case 2:17-cv-00516-JRG Document 45 Filed 10/13/17 Page 7 of 8 PageID #: 380
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`lead attorney shall attend any discovery motion hearing set by the Court (though
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`the lead attorney is not required to argue the motion).
`
`(e)
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`Any change to a party’s lead attorney designation must be accomplished by
`
`motion and order.
`
`(f)
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`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).
`
`
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`10.
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`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.
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`11.
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`Filings. Only upon request from chambers shall counsel submit to the court courtesy
`
`copies of any filings.
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`12.
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`Proposed Stipulations by the Parties Regarding Discovery. The parties stipulate to
`
`the following:
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`(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
`
`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 3
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`- 7 -
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`
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`Case 2:17-cv-00516-JRG Document 45 Filed 10/13/17 Page 8 of 8 PageID #: 381
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`business days’ notice of the selected court reporting agency to allow for the
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`coordination of remote depositions, including the logistics of soft copy exhibits.
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`(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.
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`(c) The parties agree to accept service by email to all counsel of record for the party
`
`to be served.
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`(d) The parties will submit a proposed e-discovery order within 30 days after the
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`Scheduling Conference.
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`13.
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`Standing Orders. The parties and counsel are charged with notice of and are required to
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`fully comply with each of the Standing Orders of this Court. Such are posted on the
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`Court’s website at http://www.txed.uscourts.gov/?q=court-annexed-mediation-plan. The
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`substance of some such orders may be included expressly within this Discovery
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`Order, while others (including the Court’s Standing Order Regarding Protection of
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`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
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`binding on the parties and counsel, regardless of whether they are expressly included
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`herein or made a part hereof by reference.
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`- 8 -
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