Case 2:23-cv-00059-JRG Document 205 Filed 09/19/24 Page 1 of 5 PageID #: 11043
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`TOUCHSTREAM TECHNOLOGIES, INC.,
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`Plaintiff,
`
`v.
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`CHARTER COMMUNICATIONS, INC. et
`al.,
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`Defendants.
`
`TOUCHSTREAM TECHNOLOGIES, INC.,
`
`Plaintiff,
`
`v.
`
`COMCAST CABLE COMMUNICATIONS,
`LLC, D/B/A XFINITY, et al.,
`
`Defendants.
`
`Lead Case No. 2:23-cv-00059-JRG
`Member Case No. 2:23-cv-00062-JRG
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`THIRD AMENDED DOCKET CONTROL ORDER
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`Before the Court is the Joint Motion to Amend the Second Docket Control Order
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`(the "Motion"). (Dkt. No. 200.) Having considered the Motion, noting its joint nature, and
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`finding good cause, the Court finds that the Motion should be and hereby is GRANTED and
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`further ORDERS that the following schedule of deadlines be in effect until further order of
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`this Court:
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`1
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`

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`Case 2:23-cv-00059-JRG Document 205 Filed 09/19/24 Page 2 of 5 PageID #: 11044
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`
`
`Event
`*Jury Selection — 9:00 a.m. in Marshall,
`Texas
`
`Previous Deadline Amended Deadline
`December 9, 2024
`Unchanged
`
`*Defendant to disclose final invalidity theories,
`final prior art references/combinations, and final
`equitable defenses.1
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`7 days before Jury
`Selection
`
`Unchanged
`
`*Plaintiff to disclose final election of Asserted
`Claims.2
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`10 days before Jury
`Selection
`
`Unchanged
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`*Pretrial Conference — 9:00 a.m. in Marshall,
`Texas before Judge Rodney Gilstrap
`
`December 2, 2024
`
`Unchanged
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`* 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
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`*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
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`September 30, 2024 October 11, 2024
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`September 18, 2024
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`
`
`
`
`
`
`
`
`October 4, 2024
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`
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`September 18, 2024
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`October 4, 2024
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`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.
`3 The Parties are referred to the Court's Standing Order Regarding Use of Juror Questionnaires in
`Advance of Voir Dire.
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`2
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`

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`Case 2:23-cv-00059-JRG Document 205 Filed 09/19/24 Page 3 of 5 PageID #: 11045
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`Responses to Motions in Limine
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`September 18, 2024
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`Unchanged
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`3
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`

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`Case 2:23-cv-00059-JRG Document 205 Filed 09/19/24 Page 4 of 5 PageID #: 11046
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`(*) 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.
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`ADDITIONAL REQUIREMENTS
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`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.
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`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.
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`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.
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`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.
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`Motions for Continuance: The following will not warrant a continuance nor justify a failure to
`comply with the discovery deadline:
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`1. (a) The fact that there are motions for summary judgment or motions to dismiss pending;
`2. (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;
`3. (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.
`4
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`Case 2:23-cv-00059-JRG Document 205 Filed 09/19/24 Page 5 of 5 PageID #: 11047
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`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.
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`Proposed DCO: The Parties' Proposed DCO should also follow the format described above under
`"Amendments to the Docket Control Order (`DCO')."
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`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. The
`Parties in a case which has been consolidated for pre-trial purposes and which is moving towards
`a separate trial on the merits (subsequent to pre-trial) shall file, as an exhibit to the parties’ Joint
`Pretrial Order, a list identifying all docket entries from the lead case that relate to the applicable
`member case.
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`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.
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`5
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`.
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`____________________________________
`RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
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`So ORDERED and SIGNED this 19th day of September, 2024.
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