`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`Plaintiff,
`
`v.
`
`SAMSUNG ELECTRONICS CO., LTD., ET
`AL.,
`
`Defendants.
`
`§
`§
`§
`§ Civil Action No. 2:22-cv-00263-JRG-RSP
`§
`§
`§
`§
`§
`§
`§
`
`SECOND AMENDED DOCKET CONTROL ORDER
`
`In accordance with the Joint Motion for Second Amended Docket Control Order, Dkt.
`
`No. 119, it is hereby ORDERED that the following schedule of deadlines is in effect until
`
`further order of this Court:
`
`Original Dates
`
`March 4, 2024
`
` Amended
`Dates
`July 8, 2024
`
`7 days before Jury
`Selection
`
`10 days before
`Jury Selection
`
`Event
`
`*Jury Selection – 9:00 a.m. in Marshall, Texas
`
`*Defendant to disclose final invalidity theories, final
`prior art references/combinations, and final equitable
`defenses.1
`
`*Plaintiff to disclose final election of Asserted
`Claims.2
`
`1 The proposed DCO shall include this specific deadline. The deadline shall read, “7 days before
`Jury Selection,” and shall not include a specific date.
`
`2 Given the Court’s past experiences with litigants dropping claims and defenses during or on the
`eve of trial, the Court is of the opinion that these additional deadlines are necessary. The proposed
`DCO shall include this specific deadline. The deadline shall read, “10 days before Jury Selection,”
`and shall not include a specific date.
`
`1
`
`
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`Case 2:22-cv-00263-JRG-RSP Document 121 Filed 09/06/23 Page 2 of 6 PageID #: 9441
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`February 5, 2024 June 10, 2024
`
`January 29, 2024 June 5, 2024 at 9:00
`a.m.
`
`January 22, 2024 May 29, 2024
`
`January 22, 2024 May 29, 2024
`
`January 16, 2024 May 21, 2024
`
`*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.3
`*Pretrial Conference – 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, Shawn McRoberts, at
`shawn_mcroberts@txed.uscourts.gov.
`
`January 11, 2024 May 15, 2024
`
`File Motions in Limine
`
`January 11, 2024 May 15, 2024
`
`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.
`Serve Objections to Rebuttal Pretrial Disclosures
`
`January 5, 2024 May 8, 2024
`
`Serve Objections to Pretrial Disclosures; and Serve
`Rebuttal Pretrial Disclosures
`
`3 The Parties are referred to the Court’s Standing Order Regarding Use of Juror Questionnaires
`in Advance of Voir Dire.
`
`2
`
`
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`Case 2:22-cv-00263-JRG-RSP Document 121 Filed 09/06/23 Page 3 of 6 PageID #: 9442
`
`December 18,
`2023
`
`December 14,
`2023
`
`April 24, 2024
`
`April 16, 2024
`
`November 30,
`2023
`
`April 2, 2024
`
`November 30,
`2023
`
`April 2, 2024
`
`November 20,
`2023
`
`March 22, 2024
`
`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 CV- 7(e), not to exceed
`the deadline as set forth in this Docket Control
`Order.4 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.
`Deadline to Complete Expert Discovery
`
`November 8, 2023 March 4, 2024
`
`Serve Disclosures for Rebuttal Expert Witnesses
`
`October 18, 2023 February 13, 2024
`
`October 12, 2023 February 6, 2024
`
`Serve Disclosures for Expert Witnesses by the Party
`with the Burden of Proof
`
`Deadline to Complete Fact Discovery and File
`Motions to Compel Discovery
`
`4 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.
`
`3
`
`
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`Case 2:22-cv-00263-JRG-RSP Document 121 Filed 09/06/23 Page 4 of 6 PageID #: 9443
`
`October 4, 2023
`
`January 30, 2024
`
`Final Pre-Trial Election of Asserted Claims and Prior
`Art
`
`Plaintiff shall serve a Final Pre-Trial Election of
`Asserted Claims, which shall identify no more
`than 5 claims per asserted patent from among the
`previously identified claims and no more than 16
`claims in total.
`
`Not later than 14 days after Plaintiff’s election,
`Defendants shall elect no more than 6 prior art
`references against each patent from among the
`previously identified references and no more than 20
`references in total.
`Comply with P.R. 3-7 (Opinion of Counsel
`Defenses)
`
`September 22,
`2023
`
`November 22, 2023
`
`September 1, 2023 November 3, 2023 at
`9:00 a.m.
`
`*Claim Construction Hearing – 9:00 a.m. in
`Marshall, Texas before Judge Roy Payne
`
`October 18, 2023
`
`Revised P.R. 4-5(d) Joint Claim Construction Chart
`
`October 11, 2023
`
`October 4, 2023
`
`September 20, 2023
`
`September 5 2023
`
`Plaintiff’s Supplemental Reply Claim Construction
`Brief Addressing Any New Disputed Terms.
`
`Defendants’ Supplemental Responsive Claim
`Construction Brief Addressing Any New Disputed
`Terms.
`Plaintiff’s Supplemental Opening Claim
`Construction Brief Addressing Any New Disputed
`Terms.
`Joint notice concerning any additional disputed
`terms and proposed constructions for briefing.
`
`(*) 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.
`
`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
`4
`
`
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`Case 2:22-cv-00263-JRG-RSP Document 121 Filed 09/06/23 Page 5 of 6 PageID #: 9444
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`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) hard 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)(1), 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. The true lead counsel should be
`designated early and should not expect to parachute in as lead once the case has been largely
`developed.
`
`Motions for Continuance: The following excuses will not warrant a continuance nor
`justify a failure to comply with the discovery deadline:
`
`(a)
`
`(b)
`
`(c)
`
`The fact that there are motions for summary judgment or motions to dismiss pending;
`
`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;
`
`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 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
`5
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`
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`Case 2:22-cv-00263-JRG-RSP Document 121 Filed 09/06/23 Page 6 of 6 PageID #: 9445
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`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.
`
`Trial: All parties must appear in person at trial. All non-individual (including but not
`limited to corporate) parties must appear at trial through the presence in person of a designated
`representative. Once they have appeared, any representative of a non-individual party shall not
`be replaced or substituted without express leave of Court.
`
`6
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