Case 2:23-cv-00113-JRG Document 33 Filed 05/19/23 Page 1 of 7 PageID #: 530
`Case 2:23-cv-00113-JRG Document 33 Filed 05/19/23 Page 1 of 7 PagelD #: 530
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE EASTERN DISTRICT OF TEXAS
`
`MARSHALL DIVISION
`
`CIVIL ACTION NO. 2:22-MD-03042-IRG
`
`§ § §
`
`§
`§
`
`IN RE: TAASERA LICENSING LLC,
`PATENT LITIGATION
`
`THIS DOCUMENT RELATES TO ALL
`CASES
`
`FIFTH AMENDED DOCKET CONTROL ORDER
`
`It is hereby ORDEREDthat the following schedule of deadlinesis in effect until further
`
`order of this Court:
`
`Current
`
`Deadline
`
`February 5,
`2024
`
`7 days before
`Jury Selection
`
`10 days before
`Jury Selection
`
`January 17,
`2024
`
`
`
`Amended Deadline
`
`Event
`
`March15, 2024
`
`*Jury Selection — 9:00 a.m. in Marshall, Texas!
`
`*Defendant to disclose final invalidity theories,
`final prior art references/combinations, and final
`equitable defenses.”
`
`*Plaintiff to disclose final election of Asserted
`Claims.?
`
`February 20, 2024
`
`*Pretrial Conference — 9:00 a.m. in Marshall,
`Texas, before Judge Rodney Gilstrap
`
`
`
`! This date applies to only cases originally filed in the Eastern District of Texas.
`
`? The proposed DCOshallinclude this specific deadline. The deadline shall read, “7 days before
`Jury Selection,” and shall not include a specific date.
`
`3 Given the Court’s past experiences with litigants dropping claims and defenses during or on the
`eve oftrial, the Court is of the opinion that these additional deadlines are necessary. The proposed
`DCOshall includethis specific deadline. The deadline shall read, “10 days before Jury Selection,”
`and shall not include a specific date.
`
`

`

`Case 2:23-cv-00113-JRG Document 33 Filed 05/19/23 Page 2 of 7 PageID #: 531
`
`January 2,
`2024
`
`January 2,
`2024
`
`February 5, 2024
`
`February 5, 2024
`
`January 2,
`2024
`
`February 5, 2024
`
`January 2,
`2024
`
`February 5, 2024
`
`December 18,
`2023
`
`January 22, 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.4
`
`*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.
`
`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.
`
`December 18,
`2023
`
`January 22, 2024
`
`Serve Objections to Rebuttal Pretrial Disclosures
`
`
`4 The parties are referred to the Court’s Standing Order Regarding Use of Juror Questionnaires in
`Advance of Voir Dire. This applies to only cases originally filed in the Eastern District of Texas.
`
`
`
`2
`
`

`

`Case 2:23-cv-00113-JRG Document 33 Filed 05/19/23 Page 3 of 7 PageID #: 532
`
`December 11,
`2023
`
`November 27,
`2023
`
`November 13,
`2023
`
`January 15, 2024
`
`January 1, 2024
`
`December 18, 2023
`
`October 30,
`2023
`
`December 4, 2023
`
`October 30,
`2023
`
`December 4, 2023
`
`Serve Objections to Pretrial Disclosures; and
`Serve Rebuttal Pretrial Disclosures
`
`(Witness List,
`Serve Pretrial Disclosures
`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.5 Motions for Summary
`Judgment shall comply with Local Rule CV-56.
`
`to Strike Expert Testimony
`Daubert
`Motions)
`
`*File Motions
`(including
`
`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.
`
`October 23,
`2023
`
`October 10,
`2023
`
`November 27, 2023
`
`Deadline to Complete Expert Discovery
`
`November 13, 2023
`
`Serve Disclosures for Rebuttal Expert Witnesses
`
`
`5 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
`
`

`

`Case 2:23-cv-00113-JRG Document 33 Filed 05/19/23 Page 4 of 7 PageID #: 533
`
`October 23, 2023
`
`Deadline to File Motions to Compel Discovery
`
`October 23, 2023
`
`Serve Disclosures for Expert Witnesses by the
`Party with the Burden of Proof
`
`October 16, 2023
`
`Deadline to Complete Fact Discovery
`
`Comply with P.R. 3-7 (Opinion of Counsel
`Defenses)
`
`*Claim Construction Hearing – 9:00 a.m. in
`Marshall, Texas, before Judge Rodney Gilstrap
`
`*Comply with P.R. 4-5(d)
`Construction Chart)
`
`(Joint Claim
`
`*Comply with P.R. 4-5(c)
`Construction Brief)
`
`(Reply Claim
`
`Comply with P.R. 4-5(b) (Responsive Claim
`Construction Brief)
`
`Comply with P.R. 4-5(a) (Opening Claim
`Construction Brief) and Submit Technical
`Tutorials (if any)
`
`Good cause must be shown to submit technical
`tutorials after the deadline to comply with P.R. 4-
`5(a).
`
`Deadline to Substantially Complete Document
`Production and Exchange Privilege Logs
`
`Counsel are expected to make good faith efforts
`to produce all required documents as soon as they
`are available and not wait until the substantial
`completion deadline.
`
`Comply with P.R. 4-4 (Deadline to Complete
`Claim Construction Discovery)
`
`September 18,
`2023
`
`September 18,
`2023
`
`September 11,
`2023
`
`September 6,
`2023
`
`August 16,
`2023
`
`October 10, 2023
`
`September 19, 2023
`
`August 2, 2023 September 1, 2023
`
`July 26, 2023
`
`August 25, 2023
`
`July 19, 2023
`
`August 18, 2023
`
`July 5, 2023
`
`August 4, 2023
`
`July 5, 2023
`
`August 4, 2023
`
`June 21, 2023
`
`July 20, 2023
`
`June 14, 2023
`
`July 13, 2023
`
`File Response to Amended Pleadings
`
`
`
`4
`
`

`

`Case 2:23-cv-00113-JRG Document 33 Filed 05/19/23 Page 5 of 7 PageID #: 534
`
`May 31, 2023
`
`June 29, 2023
`
`*File Amended Pleadings
`
`It is not necessary to seek leave of Court to amend
`pleadings prior to this deadline unless the
`amendment seeks to assert additional patents.
`
`June 29, 2023
`
`May 31, 2023
`
`Comply with P.R. 4-3 (Joint Claim Construction
`Statement)
`(*) indicates a deadline that cannot be changed without an acceptable showing of 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 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.
`
`
`
`5
`
`

`

`Case 2:23-cv-00113-JRG Document 33 Filed 05/19/23 Page 6 of 7 PageID #: 535
`
`Motions for Continuance: The following 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 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
`
`

`

`Case 2:23-cv-00113-JRG Document 33 Filed 05/19/23 Page 7 of 7 PageID #: 536
`
`So Ordered this
`May 18, 2023
`
`