Case 2:23-cv-00059-JRG Document 61 Filed 05/31/24 Page 1 of 6 PageID #: 1447
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`TOUCHSTREAM TECHNOLOGIES, INC.,
`
`Plaintiff,
`
`v.
`
`CHARTER COMMUNICATIONS, INC., et
`al.,
`
`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
`
`FIRST AMENDED DOCKET CONTROL ORDER
`
`Before the Court is the Joint Stipulation to Modify Deadlines (the “Stipulation”) filed by
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`Plaintiff Touchstream Technologies, Inc. and Defendants Charter Communications, Inc., et al.,
`
`and Comcast Cable Communications, LLC, et al. (Dkt. No. 57.) The Court finds that the relief
`
`requested in the Stipulation should be and hereby is GRANTED-AS-MODIFIED and further
`
`ORDERS that the following schedule of deadlines is in effect until further order of this Court:
`
`Previous Deadline Amended Deadline
`October 28, 2024
`
`
`
`*Jury Selection — 9:00 a.m. in Marshall,
`Texas
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`

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`Case 2:23-cv-00059-JRG Document 61 Filed 05/31/24 Page 2 of 6 PageID #: 1448
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`Previous Deadline Amended Deadline
`7 days before Jury
`
`Selection
`
`10 days before Jury
`Selection
`September 30, 2024
`
`
`
`
`
`September 23, 2024 October 2, 2024
`
`September 16, 2024 September 18, 2024
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`September 16, 2024 September 18, 2024
`
`
`*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
`* 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 — 9:00 a.m. in
`Marshall, Texas before Judge Rodney Gilstrap
`*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
`
`
`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.
` 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 61 Filed 05/31/24 Page 3 of 6 PageID #: 1449
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`Previous Deadline Amended Deadline
`September 9, 2024
`
`
`September 3, 2024
`
`
`
`September 3, 2024
`
`August 26, 2024
`
`
`
`
`
`August 12, 2024
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`August 22, 2024
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`August 5, 2024
`
`August 19, 2024
`
`
`*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.
`Serve Objections to Rebuttal Pretrial
`Disclosures
`Serve Objections to Pretrial Disclosures; and
`Serve Rebuttal Pretrial Disclosures
`Serve Pretrial Disclosures (Witness List,
`Deposition Designations, and Exhibit List) by
`the Party with the Burden of Proof
`*Response
`to Dispositive Motions
`(including Daubert Motions). Responses to
`dispositive motions that were filed prior to
`the dispositive motion deadline, including
`Daubert Motions, shall be due in accordance
`with Local Rule 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.
`
`
`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."
`
`3
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`

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`Case 2:23-cv-00059-JRG Document 61 Filed 05/31/24 Page 4 of 6 PageID #: 1450
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`Previous Deadline Amended Deadline
`July 22, 2024
`August 5, 2024
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`July 22, 2024
`
`August 5, 2024
`
`July 15, 2024
`July 1, 2024
`
`July 29, 2024
`July 15, 2024
`
`June 10, 2024
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`June 11, 2024
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`June 10, 2024
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`June 24, 2024
`
`
`to Strike Expert
`*File Motions
`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-7.5* 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
`Serve Disclosures for Rebuttal Expert
`Witnesses
`Deadline to Complete Fact Discovery and File
`Motions to Compel Discovery
`Serve Disclosures for Expert Witnesses by the
`Party with the Burden of Proof
`Comply with P.R. 3-7 (Opinion of Counsel
`Defenses)
`(*) 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.
`
`June 6, 2024
`
`
`
`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
`
`* 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.
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`Case 2:23-cv-00059-JRG Document 61 Filed 05/31/24 Page 5 of 6 PageID #: 1451
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`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 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')."
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`Case 2:23-cv-00059-JRG Document 61 Filed 05/31/24 Page 6 of 6 PageID #: 1452
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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.
`
`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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`6
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`.
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`____________________________________
`RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
`
`So ORDERED and SIGNED this 31st day of May, 2024.
`
`