Case 2:19-cv-00118-JRG Document 41 Filed 08/07/19 Page 1 of 9 PageID #: 442
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`QUEST NETTECH CORPORATION,
`
`v.
`
`APPLE INC.,
`
`Plaintiff,
`
`Defendant.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`Case No. 2:19-cv-118-JRG
`
`JURY TRIAL DEMANDED
`
`DISCOVERY ORDER
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`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:
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`1.
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`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
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`information:
`
`(a)
`
`(b)
`
`(c)
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`the correct names of the parties to the lawsuit;
`
`the name, address, and telephone number of any potential parties;
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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
`
`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
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`such person;
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`QUEST NETTECH CORPORATION,
`
`v.
`
`APPLE INC.,
`
`Plaintiff,
`
`Defendant.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`Case No. 2:19-cv-118-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)
`
`(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;
`
`
`
`Case 2:19-cv-00118-JRG Document 41 Filed 08/07/19 Page 2 of 9 PageID #: 443
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`(e)
`
`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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`in this action or to indemnify or reimburse for payments made to satisfy the
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`judgment;
`
`(f)
`
`(g)
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`any settlement agreements relevant to the subject matter of this action; and
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`any statement of any party to the litigation.
`
`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:
`
`(a)
`
`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
`
`Procedure 26(a)(2)(B) and Local Rule CV-26; and
`
`(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:
`
`(a)
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`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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`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 2:19-cv-00118-JRG Document 41 Filed 08/07/19 Page 3 of 9 PageID #: 444
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`claim elements until 30 days after source code for each Accused
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`Instrumentality is produced by the opposing party. Thereafter, the party
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`claiming patent infringement shall identify, on an element-by-element
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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.
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`ii.
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`If a party claiming patent infringement exercises the provisions of
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`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
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`Paragraph 3(a)(i) disclosure, supplemental “Invalidity Contentions” that
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`amend only those claim elements identified as software limitations by the
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`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
`
`(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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`- 3 -
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`
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`Case 2:19-cv-00118-JRG Document 41 Filed 08/07/19 Page 4 of 9 PageID #: 445
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`4.
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`5.
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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) Interrogatories: Each Party may propound up to 25 interrogatories;
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`(b) Requests for Admissions: Each Party may propound up to 40 requests for
`
`admission, except requests for admissions directed solely to admitting or denying
`
`the authenticity of documents. Parties may propound an unlimited number of
`
`requests for admission which requests are directed solely to admitting or denying
`
`the authenticity of documents.
`
`(c) Depositions
`
`i.
`
`Party Depositions: Each Party may take up to 35 hours of depositions of
`
`the opposing Party, including both Rule 30(b)(6) depositions and
`
`depositions of the opposing Party’s employees or agents under Rule
`
`30(b)(1). Depositions of experts and non-parties do not count against
`
`these limits.
`
`ii.
`
`iii.
`
`Non-Party Depositions: The parties may take depositions of non-parties.
`
`Testifying Experts: Each Party is limited to four testifying experts. The
`
`Parties are permitted to depose each of the opposing Party’s experts for up
`
`to 7 hours for each report submitted.
`
`iv.
`
`The parties may take depositions on written questions of custodians of
`
`business records for third parties.
`
`Any party may later move to modify these limitations for good cause.
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`- 4 -
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`
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`Case 2:19-cv-00118-JRG Document 41 Filed 08/07/19 Page 5 of 9 PageID #: 446
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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
`
`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
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`required under this Order have taken place.
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`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
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`- 5 -
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`Case 2:19-cv-00118-JRG Document 41 Filed 08/07/19 Page 6 of 9 PageID #: 447
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`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
`
`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 14 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. 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,
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`- 6 -
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`Case 2:19-cv-00118-JRG Document 41 Filed 08/07/19 Page 7 of 9 PageID #: 448
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`each party’s lead attorney (see Local Rule CV-11(a)) and local counsel shall meet
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`and confer in person or by telephone, without the involvement or participation of
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`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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`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
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`motion and order.
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`(f)
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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
`
`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
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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) The parties agree that the protections provided in FRCP 26(b)(4)(B) and (C) will
`
`apply equally to expert declarations as they do to expert reports, including both
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`- 7 -
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`Case 2:19-cv-00118-JRG Document 41 Filed 08/07/19 Page 8 of 9 PageID #: 449
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`drafts of declarations and communications related to declarations. Pursuant to
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`FRCP 26(b)(4), draft expert reports, notes, outlines, and any other writings
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`leading up to an expert’s final report(s) are exempt from discovery. In addition,
`
`all communications with and all materials generated by an expert with respect to
`
`his or her work on this action are exempt from discovery unless relied upon by the
`
`expert in forming his or her opinions. If an expert produces a report, the expert
`
`must produce his or her final report and all materials on which he or she relied.
`
`(b) The parties agree that, unless good cause is shown, the parties shall not be
`
`required to log attorney-client privileged communications or work product
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`protected materials dated on or after the filing date of this action, April 12, 2019,
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`to the extent such communications/materials were generated for purposes of these
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`actions.
`
`(c) The parties agree to serve, and to accept service, by email to all counsel of record.
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`(d) A party who serves a subpoena in this matter on a third party shall immediately
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`provide any response thereto to any and all other parties to such case (including
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`any cases consolidated therewith). A party who receives documents or access to
`
`documents from a third party pursuant to a subpoena will reproduce those
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`documents to all other parties described in the preceding sentence within five (5)
`
`business days. Where reproduction of documents within five (5) business days is
`
`not possible, the party who received the documents will provide prompt notice to
`
`such other parties and will work in good faith to resolve the issue on a case-by-
`
`case basis. The parties agree to consult with each other before scheduling third
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`party depositions in a good-faith effort to accommodate attendance by interested
`
`- 8 -
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`Case 2:19-cv-00118-JRG Document 41 Filed 08/07/19 Page 9 of 9 PageID #: 450
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`parties. Nothing in the foregoing reduces any party’s obligations under Fed. R.
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`Civ. P. 45.
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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/page1.shtml?location=info:judge&judge=17.
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`The 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
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`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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`- 9 -
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`So Ordered this
`Aug 7, 2019
`
`
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