`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT
`LLC,
`
` Plaintiff,
`
`v.
`
`T-MOBILE USA, INC. and T-MOBILE
`US, INC.,
`
`UBER TECHNOLOGIES, INC., d/b/a
`UBER,
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`Case No. 2:21-cv-00072-JRG-RSP
` (LEAD CASE)
`
`Case No. 2:21-cv-00026-JRG-RSP
` (MEMBER CASE)
`
`ORDER
`
`Before the Court is the Sixth Motion to Amend the DCO filed by Plaintiff
`
`AGIS Software Development LLC. Dkt. No. 241. The Court acknowledges Uber’s
`
`concerns related to timing of the close of expert discovery, the deadline to file motions
`
`to strike, and response to dispositive motions including Daubert motions. Therefore, the Court
`
`only GRANTS-IN-PART AGIS’s motion to amend the DCO. In addition to the schedule
`
`below, the Court ORDERS that the page limit for replies and sur-replies is extend for
`
`dispositive from 10 pages to 15 pages and for non-dispositive motions from 5 pages to 10
`
`pages.
`
`It is further ORDERED that the following schedule of deadlines is in effect
`
`relative to AGIS and Uber u ntil further order of this Court:
`
`
`
`Case 2:21-cv-00072-JRG-RSP Document 257 Filed 12/14/21 Page 2 of 5 PageID #: 11242
`
`Current Date
`
`New Date
`
`Event
`
`March 7, 2022
`
`February 7, 2022
`
`February 2, 2022
`
`January 24, 2022
`
`January 24, 2022
`
`January 18, 2022
`
`January 14, 2022
`
`*Jury Selection – 9:00 a.m. in Marshall, Texas
`
`*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.1
`
`*Pretrial Conference – 9:00 a.m. in Marshall,
`Texas before Judge Roy Payne
`
`*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.
`
`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.
`
`January 21, 2022
`
`Serve Objections to Rebuttal Pretrial Disclosures.
`
`1 The Parties are referred to the Court’s Standing Order Regarding Use of Juror
`Questionnaires in Advance of Voir Dire.
`
`
`
`Case 2:21-cv-00072-JRG-RSP Document 257 Filed 12/14/21 Page 3 of 5 PageID #: 11243
`
`Current Date
`
`New Date
`
`Event
`
`January 17, 2022
`
`January 5, 2022
`
`December 30, 2021
`
`January 7, 2022
`
`December 13, 2021 December 31,
`2021
`
`December 13, 2021
`
`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
`CV7(e), not to exceed the deadline as set forth in
`this Docket Control Order.2 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.
`
`*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.
`
`December 8, 2021
`
`December 22,
`2021
`(*) 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.
`
`Deadline to Complete Expert Discovery
`
`2 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.
`
`
`
`Case 2:21-cv-00072-JRG-RSP Document 257 Filed 12/14/21 Page 4 of 5 PageID #: 11244
`
`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) 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 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)11, 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)
`
`The fact that there are motions for summary judgment or motions to dismiss pending;
`
`(b)
`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;
`
`(c)
`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
`
`
`
`Case 2:21-cv-00072-JRG-RSP Document 257 Filed 12/14/21 Page 5 of 5 PageID #: 11245
`
`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.
`
`