Case 2:23-cv-00059-JRG Document 215 Filed 10/04/24 Page 1 of 32 PageID #: 11735
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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,
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`v.
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`CHARTER COMMUNICATIONS, INC. et
`al.,
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`Defendants.
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`TOUCHSTREAM TECHNOLOGIES, INC.,
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`Plaintiff,
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`v.
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`COMCAST CABLE COMMUNICATIONS,
`LLC, D/B/A XFINITY, et al.,
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`Defendants.
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`Lead Case No. 2:23-cv-00059-JRG
`Member Case No. 2:23-cv-00062-JRG
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`JOINT PROPOSED PRETRIAL ORDER1
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`Plaintiff Touchstream Technologies, Inc. (“Plaintiff” or “Touchstream”) and Defendants
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`Comcast Cable Communications, LLC, d/b/a Xfinity; Comcast Corporation; Comcast Cable
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`Communications Management, LLC; and Comcast of Houston, LLC (collectively “Comcast”)
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`(Touchstream and Comcast collectively, “the Parties”) submit the following proposed Joint
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`Pretrial Order pursuant to the Court’s Third Amended Docket Control Order (Dkt. 205), the
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`Federal Rules of Civil Procedure, and Local Rules of this Court. This case is scheduled for a
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`1 Submissions that are agreed to by both Touchstream and Comcast are not highlighted.
`Submissions proposed by Touchstream that are not agreed to by Comcast are bracketed and
`highlighted in green. Submissions proposed by Comcast that are not agreed to by Touchstream
`are bracketed and highlighted in yellow.
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`Case 2:23-cv-00059-JRG Document 215 Filed 10/04/24 Page 2 of 32 PageID #: 11736
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`pretrial management conference on December 2, 2024, pursuant to Local Rule CV-16 and Rule
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`16 of the Federal Rules of Civil Procedure. The Parties have stipulated to various matters
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`identified herein and having identified exhibits, witnesses, factual contentions, and triable issues.
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`I.
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`APPEARANCE OF COUNSEL
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`Attorneys for Plaintiff Touchstream Technologies, Inc.
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`Ryan D. Dykal (pro hac vice)
`Jordan T. Bergsten (pro hac vice)
`Mark Schafer (pro hac vice)
`Philip A. Eckert (pro hac vice)
`Anita Liu (TX State Bar No. 24134054)
`BOIES SCHILLER FLEXNER LLP
`1401 New York Ave, NW
`Washington, DC, DC 20005
`(t) 202-274-1109
`rdykal@bsfllp.com
`jbergsten@bsfllp.com
`mschafer@bsfllp.com
`peckert@bsfllp.com
`aliu@bsfllp.com
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`John Michael Lyons (pro hac vice)
`Sabina Mariella (pro hac vice)
`Sophie Roytblat (pro hac vice)
`BOIES SCHILLER FLEXNER LLP
`55 Hudson Yards, 20th Floor
`New York, NY 10001
`jlyons@bsfllp.com
`smariella@bsfllp.com
`sroytblat@bsfllp.com
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`Melissa Smith (TX State Bar No. 24001351)
`GILLAM & SMITH LLP
`303 S. Washington Ave.
`Marshall, TX 75670
`(t) 903-934-8450
`melissa@gillamsmithlaw.com
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`Attorneys for Comcast Defendants
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`Case 2:23-cv-00059-JRG Document 215 Filed 10/04/24 Page 3 of 32 PageID #: 11737
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`Deron Dacus (State Bar No. 00790553)
`THE DACUS FIRM, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, TX 75701
`(t) (903) 705-1117
`ddacus@dacusfirm.com
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`DAVIS POLK & WARDWELL LLP
`Ashok Ramani (CA Bar No. 200020)
`David J. Lisson (CA Bar No. 250994)
`James Y. Park (CA Bar No. 343659)
`Micayla Hardisty (CA Bar No. 333246)
`1600 El Camino Real
`Menlo Park, CA 94025
`ashok.ramani@davispolk.com
`david.lisson@davispolk.com
`james.park@davispolk.com
`micayla.hardisty@davispolk.com
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`Alena Farber (NY Bar No. 5896170)
`450 Lexington Avenue
`New York, NY 10017
`alena.farber@davispolk.com
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`WILMER CUTLER PICKERING HALE AND DORR LLP
`Thomas G. Saunders (NY Bar No. 4429387)
`2100 Pennsylvania Ave, NW
`Washington, DC 20007
`thomas.saunders@wilmerhale.com
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`Lauren E. Matlock-Colangelo (NY Bar No. 5771340)
`7 World Trade Center
`250 Greenwich St
`New York, NY 10007
`lauren.matlock-colangelo@wilmerhale.com
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`II.
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`STATEMENT OF JURISDICTION
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`This Court has subject-matter jurisdiction under Title 28, U.S.C. §§ 1331 and 1338(a),
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`because this action arises under the Patent Laws of the United States, 35 U.S.C. § 1 et seq. The
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`parties do not dispute subject-matter jurisdiction or personal jurisdiction for purposes of this
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`action only.
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`Case 2:23-cv-00059-JRG Document 215 Filed 10/04/24 Page 4 of 32 PageID #: 11738
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`III.
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`JOINT STATEMENT OF THE CASE
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`This is a civil action for patent infringement in which Touchstream accuses Comcast of
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`directly infringing claims 1, 5, 7, 8, and 9 of U.S. Patent No. 8,356,251 (“’251 patent”); claims 12,
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`13, and 14 of U.S. Patent No. 11,048,751 (“’751 patent”); and claims 17, 18, 19 and 20 of U.S.
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`Patent No. 11,086,934 (“’934 patent”) (collectively the “Asserted Claims” of the “Asserted
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`Patents”). Touchstream alleges that Comcast has directly infringed each of the Asserted Claims.
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`Comcast denies that it has infringed the Asserted Claims of the Asserted Patents and argues that
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`the Asserted Claims are invalid.
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`Touchstream alleges Comcast infringes the Asserted Claims of the Asserted Patents by
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`performing certain methods. In particular, Touchstream alleges that Comcast infringes when a
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`subscriber uses the Xfinity TV Remote Application in conjunction with an X1 set-top box (the
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`“Accused Functionalities”). Touchstream seeks monetary damages in the form of a reasonable
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`royalty for past damages, an ongoing reasonable royalty for future damages, pre- and post-
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`judgment interest, costs, and an award of its fees under 35 U.S.C. §§ 284 and 285, as well as
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`any other relief the Court deems appropriate. Touchstream also seeks a permanent injunction to
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`prevent further infringement of the Asserted Patents. Touchstream asserts that Comcast’s
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`alleged infringement of the ’251 patent was and continues to be willful. Touchstream also
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`asserts that Comcast’s alleged infringement of the ’751 and ’934 patents has been willful after
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`the filing of this lawsuit. Touchstream seeks enhanced damages as a result of Comcast’s alleged
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`willful infringement, and any other relief the Court deems appropriate. Touchstream disagrees
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`with each allegation, defense, and/or affirmative defense asserted by Comcast.
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`Comcast contends that it does not infringe the Asserted Claims and that the Asserted
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`Claims are invalid under 35 U.S.C. §§ 101, 102, 103, and/or 112. Because Comcast does not
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`Case 2:23-cv-00059-JRG Document 215 Filed 10/04/24 Page 5 of 32 PageID #: 11739
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`infringe any valid Asserted Claim, Touchstream is not entitled to any damages or equitable
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`relief. Comcast further contends that it has not willfully infringed any of the Asserted Patents.
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`Further, this case is exceptional under 35 U.S.C. § 285, and Comcast seeks its attorney’s fees
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`and costs thereunder, as well as any other relief the Court deems appropriate.
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`IV. CONTENTIONS OF THE PARTIES
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`By providing these statements, the Parties do not concede that any of the following issues
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`are appropriately presented at trial. The Parties also do not waive any issues raised by their
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`previously filed motions or previously lodged objections.
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`The contentions below do not include every detail underlying each contention. The
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`Parties do not waive any issues raised in their pending, decided, or future motions, including
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`any motions in limine, motions for summary judgment, Daubert motions, motions to strike, and
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`any other future motions or objections that they may file.
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`A. Touchstream’s Contentions
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`(1) Plaintiff Touchstream is the owner of all right, title, and interest in the ’251 patent
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`titled “Play Control of Content on a Display Device.” Comcast has been and is infringing the
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`’251 patent under 35 U.S.C. § 271 by using the methods of one or more claims of the ’251
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`Patent within the United States through its Accused Functionalities. Touchstream accuses
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`Comcast of infringing claims 1, 5, 7, 8, and 9 of the ’251 patent.
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`(2) Plaintiff Touchstream is the owner of the ’751 patent titled “Play Control of Content
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`on a Display Device.” Comcast has been and is infringing the ’751 patent under 35 U.S.C.
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`§ 271 by using the methods of one or more claims of the ’751 patent within the United States
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`through its Accused Functionalities. Touchstream accuses Comcast of infringing claims 12,
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`13, and 14 of the ’751 patent.
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`(3) Plaintiff Touchstream is the owner of the ’934 patent titled “Play Control of Content
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`on a Display Device.” Comcast has been and is infringing the ’934 patent under 35 U.S.C.
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`§ 271 by using the methods of one or more claims of the ’934 patent within the United States
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`through its Accused Functionalities. Touchstream accuses Comcast of infringing claims 17,
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`18, 19, and 20 of the ’934 patent.
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`(4) Touchstream provided pre-suit notice of the ’251 patent to Comcast, Comcast was
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`aware of the ’251 patent prior to the filing of Touchstream’s Original Complaint either through
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`actual notice or willful blindness, and Comcast was aware or should have been aware that it
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`was likely to infringe one or more Asserted Claims of the ’251 patent.
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`(5) Comcast’s pre-suit and post-suit infringement of the ’251 patent has been and
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`continues to be willful.
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`(6) Comcast’s post-suit infringement of the ’751 patent and ’934 patent has been and
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`continues to be willful.
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`(7) The Asserted Claims of the Asserted Patents are not invalid for any reason,
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`including under 35 U.S.C. §§ 101, 102, 103, and/or 112.
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`(8) Touchstream has been damaged by Comcast’s infringement of the Asserted Claims,
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`and Touchstream is entitled to damages for all infringement addressed at trial.
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`(9) Touchstream is entitled to supplemental damages for all infringement that is not
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`addressed at trial, including, for example, damages for infringement that occurred (i) after the
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`temporal cutoff for the data presented at trial; (ii) during the period between the jury verdict
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`and the entry of final judgment, as well as pre-judgment and post-judgment interest; and (iii)
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`in the future until expiration of each of the respective Asserted Patents.
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`(10)
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`Touchstream seeks the following relief:
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`i. A judgment that Comcast has infringed the ’251 patent;
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`ii. A judgment that Comcast has infringed the ’751 patent;
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`iii. A judgment that Comcast has infringed the ’934 patent;
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`iv. A judgment that Comcast’s infringement has been willful;
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`v. A judgment and order requiring Comcast to pay Touchstream damages
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`under 35 U.S.C. § 284, together with pre-judgment and post-judgment
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`interest and a running royalty for future damages;
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`vi. A judgment and order requiring Comcast to pay Touchstream the costs of
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`this action;
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`vii. A judgment and order declaring this case to be exceptional based on
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`Comcast’s infringement and/or litigation conduct;
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`viii. A judgment and order awarding attorneys’ fees, costs, expenses, and any
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`other relief the Court deems appropriate to Touchstream under 35 U.S.C. §
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`285;
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`ix. A permanent injunction restraining and enjoining Comcast from any further
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`use of the methods of the Asserted Claims; and
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`x. All equitable relief that the Court deems just and proper.
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`(11)
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`Touchstream contends that the Asserted Patents are valid, patent-eligible,
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`and enforceable, and that its claims are not barred or otherwise limited as a result of any of the
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`affirmative defenses raised by Comcast.
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`(12)
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`To the extent not already addressed above, Touchstream disagrees with
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`Comcast’s contentions below.
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`B. Comcast’s Contentions
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`Case 2:23-cv-00059-JRG Document 215 Filed 10/04/24 Page 8 of 32 PageID #: 11742
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`(1)
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`To the extent not addressed below, Comcast denies each of Touchstream’s
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`contentions.
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`(2)
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`Comcast does not infringe, and has not infringed, any of the Asserted Claims.
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`(3) Comcast’s alleged infringement of the Asserted Claims has not been, and is not,
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`willful.
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`(4)
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`(5)
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`The Asserted Claims are not patent-eligible under 35 U.S.C. § 101.
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`The claim elements of the Asserted Claims, both individually and as an ordered
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`combination, were well-understood, routine, and conventional at the time of the alleged
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`invention.
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`(6) Comcast contends that U.S. Patent No. 9,294,800 (“McMahon”) is prior art to
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`the Asserted Claims under at least 35 U.S.C. §§ 102 (e) and/or (g) (pre-AIA).
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`(7) Comcast contends that the 2010 Xfinity TV App System is prior art to the
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`Asserted Claims under at least 35 U.S.C. §§ 102 (a) and/or (g)(2) (pre-AIA).
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`(8) Comcast contends that U.S. Patent Publication No. 2004/0078812 (“Calvert”) is
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`prior art to the Asserted Claims under at least 35 U.S.C. §§ 102 (a), (b), (e), and/or (g) (pre-
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`AIA).
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`(9)
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`Comcast contends that U.S. Patent No. 8,660,545 (“Redford”) is prior art to the
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`Asserted Claims under at least 35 U.S.C. §§ 102 (a), (b), (e), and/or (g) (pre-AIA).
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`(10) Comcast contends that the Asserted Claims are invalid as anticipated and/or
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`obvious under 35 U.S.C. §§ 102 and 103 in view of the following prior art:
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`• McMahon;
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`• McMahon in view of Calvert;
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`• The 2010 Xfinity TV App System;
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`• The 2010 Xfinity TV App System in view of McMahon;
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`• The 2010 Xfinity TV App System in view of Calvert; and/or
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`• Redford.
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`(11) Comcast contends that the Asserted Claims are invalid for lack of written
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`description under 35 U.S.C. § 112.
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`(12) Comcast contends that Touchstream is not entitled to enhanced damages under
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`35 U.S.C. § 284.
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`(13) Comcast contends that Touchstream is not entitled to any attorneys’ fees or other
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`costs under 35 U.S.C. § 285.
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`(14) Comcast contends that Touchstream is not entitled to pre- and post-judgment
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`interest.
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`(15) Comcast contends that it is entitled to costs, expenses, and attorneys’ fees under
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`35 U.S.C. § 285, as well as any other relief the Court finds appropriate.
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`(16) Touchstream is not entitled to any damages or other relief under any theory
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`because Comcast has not infringed any valid claim of the Asserted Patents.
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`(17) Touchstream is not entitled to supplemental damages or other relief under any
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`theory.
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`(18) Comcast contends that, even if infringement of a valid Asserted Claim is found,
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`Touchstream’s proposed royalty is excessive and unsupported.
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`(19) Comcast contends that no order should restrain or enjoin Comcast from
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`continuing its use of the Accused Functionalities.
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`(20) Comcast contends that Touchstream’s claims are without merit.
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`V.
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`STIPULATIONS AND UNCONTESTED FACTS
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`The Parties will continue to meet and confer to attempt to resolve their objections to
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`deposition designations and exhibits, and to identify additional potential stipulations, including
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`stipulations related to the admissibility of exhibits, and will supplement these stipulations to the
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`extent that additional stipulations are agreed by the Parties.
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`A. The Parties’ Statement of Stipulations
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`The Parties have met and conferred and agreed upon certain trial management
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`procedures as set forth below.
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`(1)
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`The parties propose that the Court present a tutorial video for the Federal Judicial
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`Center regarding the U.S. Patent Office to the members of the jury as part of its preliminary
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`instructions to the jury.
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`(2)
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`The parties agree that written answers to interrogatories and requests for
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`admission or stipulations agreed to in this case shall be treated by the opposing party as having
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`been given under oath, whether or not the answers were signed or verified by the party making
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`them.
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`(3)
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`(4)
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`The parties will share any courtroom audio-visual equipment.
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`The parties shall make good faith efforts to resolve objections over the use of
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`identified witnesses, testimony, exhibits, and demonstratives by participating in a meet and confer
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`following the identification of and objection to witnesses, testimony, exhibits, and demonstratives
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`each day as outlined further below.
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`(5)
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`Fact witnesses will be sequestered so that they cannot hear other witnesses’
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`testimony pursuant to Federal Rule of Evidence 615. This stipulation does not apply to a party’s
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`corporate trial representative.
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`B. The Parties’ Statement of Uncontested Facts
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`(1)
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`(2)
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`Comcast Cable Communications, LLC is a Delaware limited liability company.
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`Comcast Cable Communications Management, LLC is a Delaware limited
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`liability company.
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`(3)
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`(4)
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`(5)
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`Comcast of Houston, LLC is a Delaware limited liability company.
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`Comcast Corporation is a Pennsylvania company.
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`The Asserted Patents are U.S. Patent Nos. 8,356,251 (“’251 patent”), which
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`issued January 15, 2013; 11,048,751 (“’751 patent”), which issued June 29, 2021; and
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`11,086,934 (“’934 patent”), which issued August 10, 2021 (collectively, the “Asserted
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`Patents”).
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`(6)
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`(7)
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`(8)
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`(9)
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`Touchstream is the record assignee and owner of the Asserted Patents.
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`Each of the Asserted Patents is titled “Play Control of Content On a Display
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`Device.”
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`Each of the Asserted Patents names David Strober as inventor.
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`On February 17, 2023, Touchstream filed the Original Complaint asserting
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`infringement of the ’251 Patent. 2:23-cv-00062-JRG, Dkt. 1.
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`(10) On May 25, 2023, Touchstream filed its First Amended Complaint asserting
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`infringement of the Asserted Patents. 2:23-cv-00060-JRG, Dkt. 55.
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`(11) On March 28, 2024, Touchstream filed its Second Amended Complaint asserting
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`infringement of the Asserted Patents. Dkt. 30.
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`(12) On April 30, 2024, this Court dismissed all allegations of pre-suit willful
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`infringement as to the ’751 and ’934 patents. 2:23-cv-00059-JRG, Dkt. 44.
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`(13) McMahon was filed as U.S. Application No. 13/103,574 and claims priority to
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`Case 2:23-cv-00059-JRG Document 215 Filed 10/04/24 Page 12 of 32 PageID #: 11746
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`and incorporates by reference in its entirety U.S. Provisional Application No. 61/333,066, which
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`was filed on May 10, 2010.
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`(14) Calvert was filed as U.S. Application No. 2004/0078812 on January 4, 2002.
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`(15) Redford was filed as U.S. Application No. 12/683,405 on January 6, 2010.
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`VI. CONTESTED ISSUES OF FACT AND LAW
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`The Parties identify the following issues that remain to be litigated. The Parties reserve
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`the right to identify additional factual or legal issues that may arise, including issues raised by
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`any further discovery undertaken in this case or the Court’s rulings on any pending motions or
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`rulings made at the pretrial conference on this action.
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`By providing this statement, the Parties do not concede that all of these issues are
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`appropriate for trial. The Parties also do not waive any issues raised in their pending, decided,
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`or future motions.
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`(1) Whether Touchstream has shown by a preponderance of evidence that
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`Comcast has directly infringed or is directly infringing the Asserted Claims.
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`(2) Whether Comcast has proven by clear and convincing evidence that the
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`Asserted Claims are invalid under 35 U.S.C. §§ 101, 102, 103, and/or 112.
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`(3) Whether the claim elements of the Asserted Patents, both individually and
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`as an ordered combination, were well-understood, routine, and conventional at the time of
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`the alleged invention.
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`(4) Whether certain of Comcast’s references qualify as prior art in light of
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`Touchstream’s assertion of an October 2010 priority date for each Asserted Patent.
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`(5) Whether the Asserted Patents are entitled to the asserted priority date of
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`October 2010.
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`(6) Whether the hypothetical negotiation between Touchstream and Comcast
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`would have begun in mid-2012 and culminated in an agreement in early 2013.
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`(7) Whether Comcast has proven the availability of any available and
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`acceptable non-infringing alternative by a preponderance of the evidence.
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`(8)
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`If Touchstream proves infringement of one or more valid claims of the ’251
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`Patent, the amount of reasonable royalty damages that Touchstream has shown by a
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`preponderance of the evidence to which it is entitled for the period from February 17, 2017
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`to the date of trial.
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`(9)
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`If Touchstream proves infringement of one or more valid claims of the ’751
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`Patent, the amount of reasonable royalty damages that Touchstream has shown by a
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`preponderance of the evidence to which it is entitled for the period from June 29, 2021 to
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`the date of trial.
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`(10)
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`If Touchstream proves infringement of one or more valid claims of the ’934
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`Patent, the amount of reasonable royalty damages that Touchstream has shown by a
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`preponderance of the evidence to which it is entitled for the period from August 10, 2021
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`to the date of trial.
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`(11)
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`If the jury awards damages to Touchstream, whether Touchstream has
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`shown by a preponderance of the evidence that it is entitled to supplemental damages for
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`infringement that is not included in the jury verdict, including, for example, damages for
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`infringement that occurred between the jury verdict and the expiration of the Asserted
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`Patents.
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`(12)
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`If Touchstream proves infringement of one or more patent claims that are
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`not invalid, whether Touchstream is entitled to a permanent injunction to prevent further
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`infringement.
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`(13)
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`If the jury awards damages to Touchstream, whether Touchstream has
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`shown by a preponderance of the evidence that it is entitled to pre- and/or post-judgment
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`interest and, if so, the amount.
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`(14) Whether Touchstream has shown by a preponderance of the evidence that
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`Comcast has willfully infringed any valid claim of the ’251 Patent.
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`(15) Whether Touchstream has shown by a preponderance of the evidence that
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`Comcast has willfully infringed any valid claim of the ’751 Patent or ’934 Patent after the
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`filing of this lawsuit.
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`(16)
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`If the jury finds willful infringement, whether Touchstream should be
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`awarded enhanced damages under 35 U.S.C. § 284 and, if so, the amount of enhancement.
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`(17) Whether this case is exceptional under 35 U.S.C. § 285 and, if so, whether
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`Touchstream or Comcast is entitled to attorneys’ fees or costs, and, if so, the amount.
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`VII. LIST OF WITNESSES
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`The Parties’ witness lists and objections thereto are attached as Exhibits A and B. The
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`Parties will continue to meet and confer regarding these lists, objections, and amendments thereto.
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`VIII. LIST OF EXHIBITS
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`The Parties’ exhibits lists and objections thereto are attached as Exhibits C and D.2 The
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`Parties’ joint exhibit list is attached as Exhibit E. The Parties reserve the right to object to the
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`admission of any of the exhibits currently listed on the joint exhibit list based on rulings on the
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`pending motions for summary judgment, Daubert motions, and motions in limine. The Parties
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`2 After the Parties exchanged initial exhibit lists, certain exhibits were agreed-upon as joint
`exhibits. Those exhibits were removed from the individual exhibit lists, and those lists are
`therefore not numbered continuously.
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`will continue to meet and confer regarding these lists, objections, and amendments thereto. In
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`addition, any exhibits implicated by motions in limine are deemed objected to.
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`IX. DEPOSITION DESIGNATIONS
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`The Parties’ deposition designations and objections are attached as Exhibits F3 and G. The
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`Parties will continue to meet and confer regarding these designations, objections, and amendments
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`thereto. In addition, any deposition designations implicated by motions in limine are deemed
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`objected to.
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`X.
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`STIPULATIONS AND TRIAL DISCLOSURES
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`The following stipulations were agreed upon by the Parties as discussed below and are
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`made a part of this Pretrial Order.
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`A. Trial Disclosure Schedule
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`The Parties agree to the following procedure which will govern the disclosure of witnesses,
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`exhibits, deposition testimony, and demonstratives to use at trial and the process to identify any
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`objections remaining between the Parties with regard to these disclosures:
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`(1)
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`At 7:30 PM4 two days before each day of trial (e.g., 7:30 PM Saturday
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`for a Monday trial day), each party will exchange by email the following
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`for that trial day:
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`(i)
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`A list of witnesses the party intends to call for direct examination,
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`in the order the party intends to call such witnesses (whether live
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`3 The Second Amended Docket Control Order (Dkt. 114) set September 11, 2024 as the deadline
`to “Serve Objections to Counter-Designations,” but did not contemplate counter-counter
`designations. Accordingly, Comcast objects to Touchstream’s counter-counter designations as
`improper. Additionally, Comcast reserves the right to serve specific objections to the
`admissibility of the counter-counter designations should Touchstream seek to offer them at trial.
`4 All times noted herein are Central Time.
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`or by deposition);
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`(ii)
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`A list of the deposition testimony it intends to introduce (either
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`by video or through a reading of the transcript), a list and PDF
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`copy of any trial exhibits it intends to introduce for the first time
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`through such deposition testimony, and a short statement of
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`introduction for the witness that may be read to the jury prior to
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`reading or playing the designated deposition testimony to the
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`jury; and
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`(iii)
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`A
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`list of
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`the responses
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`to requests for admissions or
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`interrogatories it intends to read into the record.
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`(2)
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`At 7:30 PM one day before a day of trial (e.g., 7:30 PM Sunday for a
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`Monday trial day), each party will exchange by email the following for
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`that trial day:
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`(i)
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`A list and PDF copy of each trial exhibit for each witness it
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`intends to present for the first time through direct examination;
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`(ii)
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`Copies of demonstratives to be used during direct examination
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`(including native versions of any demonstratives with video or
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`animation);
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`(iii)
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`Objections to witnesses for both live and deposition trial
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`witnesses;
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`(iv)
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`Identification of objections to designated deposition testimony
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`and deposition counter-designations to be included when the
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`other party introduces its identified deposition testimony; and
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`(v)
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`Identification of objections to the list of requests for admission
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`or interrogatories to be introduced at trial.
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`(3)
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`At 8:30 PM one day before a day of trial (e.g., 8:30 PM Sunday for a
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`Monday trial day), each party will exchange by email the following for
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`that trial day:
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`(i)
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`Objections to trial exhibits and disclosed demonstratives to be
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`used during direct examination; and
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`(ii)
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`Objections to counter-designations.
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`(4)
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`At 9:00 PM one day before a day of trial (e.g., 9:00 PM Sunday for a
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`Monday trial day), the parties shall meet and confer regarding objections
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`to witnesses, trial exhibits, deposition testimony, and demonstratives.
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`(5)
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`At 10:00 PM the day before a day of trial (e.g., 10:00 PM Sunday for a
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`Monday trial day), to the extent there are unresolved issues, the parties
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`shall submit to the Court by email arguments regarding any remaining
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`evidentiary disputes.
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`(6)
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`By the morning of the day of trial (e.g., Monday morning for a Monday
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`trial day), the Court will rule on evidentiary disputes submitted the
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`previous evening.
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`In addition, the parties agree to the following procedures for the exchange of demonstratives
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`to be used during opening arguments and physical exhibits:
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`(1)
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`The parties will exchange demonstratives to be used during opening
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`arguments by 5:00 PM the day before the trial day on which they will
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`be used.
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`(2)
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`By 7:30 PM, each party will identify any objections to the exhibits and
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`demonstratives of the opposing party.
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`(3)
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`The parties shall meet and confer on any objections by 9:00 PM that
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`day.
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`(4)
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`In the event the parties do not resolve any dispute, by 10:00 PM the
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`parties shall submit to the Court by email arguments regarding any
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`remaining disputes regarding opening demonstratives.
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`(5)
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`Physical exhibits will be available for inspection at 7:30 PM two days
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`before a party intends to use the physical exhibit at trial. The parties
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`reserve the right to lodge objections related to the quality and accuracy
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`of the exhibits upon inspection of the physical exhibits.
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`(6)
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`Closing demonstratives will not be exchanged.
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`By 7:30 PM the day before the party that is presenting its case-in-chief expects to rest, its
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`counsel shall provide to counsel for the other party an estimate of when it expects to rest. To the
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`extent either party expects to rest before 4:00 PM on a trial day, it will provide notice one day
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`earlier. For instance, if Plaintiff expects to rest in the morning on a Wednesday, it will provide
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`notice to Defendant on Monday so that the Defendant may prepare its related disclosures.
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`B. Motions
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`All motions for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a) may be
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`brought to the Court orally or in writing. Unless the Court sets alternative deadlines, all oppositions
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`to motions filed pursuant to Fed. R. Civ. P. 50(b) must be filed within 28 days of the filing of the
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`motion. All replies in support of the motions must be filed within 21 days of service of any
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`oppositions. All sur-replies in support of oppositions must be filed within 21 days of service
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`of the reply. The Parties reserve their right to seek reasonable extensions of these deadlines,
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`subject to the Court’s approval.
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`C. Exhibits
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`(1)
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`The Parties agree that any exhibit listed on any party’s exhibit list as to which no
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`objection remains pending at the time of opening statements may be shown to the
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`jury during opening statements. The Parties agree that exhibits to be used or offered
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`into evidence solely for impeachment need not be included on the Parties’ trial
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`exhibit lists.
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`(2)
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`Each party has the right to use an exhibit on either party’s exhibit list, even if not
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`introduced by the designating party, subject to all evidentiary objections. Another
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`party’s exhibit is not, however, admissible simply by virtue of being on an exhibit
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`list. A party seeking to introduce another party’s exhibit must still have a witness
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`sponsor the exhibit into evidence and is subject to any objections, including for
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`example, hearsay objections that may apply to one party but not the other. The
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`parties’ exhibit lists and the joint exhibit list include exhibits that may not
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`necessarily be introduced into evidence. A party’s decision not to introduce any
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`exhibit appearing on its list or the joint list shall not be commented on during trial
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`except that a comment may be made if the exhibit was used in opening and then not
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`explained to the jury by a witness at trial.
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`(3)
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`A legible copy of an exhibit may be offered in evidence in lieu of the original
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`subject to all foundational requirements and other objections that might be made to
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`the admissibility of the original and subject to the right of the party against whom
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`it is offered to inspect the original upon request reasonably in advance of any
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`Case 2:23-cv-00059-JRG Document 215 Filed 10/04/24 Page 20 of 32 PageID #: 11754
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`proposed use of the copy. For exhibits that are spreadsheets, slide presentations, or
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`videos, the Parties may use electronic versions of such exhibits in their native
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`format.
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`(4)
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`The parties agree that the following are presumed prima facie authentic, subject to
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`evidentiary objections: (i) exhibits created and thereafter produced by a party or
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`subpoenaed third party; (ii) documents created by a government agency; and
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`(iii) scientific-research articles and posters.
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`(5)
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`The parties agree that any date or description of a document (or absence thereof) on
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`an exhibit list is provided for convenience only and shall not be used as evidence
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`regarding that document.
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`(6)
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`Legible photocopies of United S