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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CASE NO. 2-24-cv-00162-JRG-RSP
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`BYTEWEAVR, LLC,
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`Plaintiff,
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`v.
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`DATABRICKS, INC.,
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`Defendants.
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`DISCOVERY ORDER
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`After a review of the pleaded claims and defenses in this action, in furtherance of the
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`management of the Court’s docket under Federal Rule of Civil Procedure 16, and after receiving
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`the input of the parties to this action, it is ORDERED AS FOLLOWS:
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`1.
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`Initial Disclosures. In lieu of the disclosures required by Federal Rule of Civil Procedure
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`26(a)(1), each party shall disclose to every other party the following information:
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`(a)
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`(b)
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`(c)
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`the correct names of the parties to the lawsuit;
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`the name, address, and telephone number of any potential parties;
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`the legal theories and, in general, the factual bases of the disclosing party’s claims
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`or defenses (the disclosing party need not marshal all evidence that may be offered
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`at trial);
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`(d)
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`the name, address, and telephone number of persons having knowledge of relevant
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`facts, a brief statement of each identified person’s connection with the case, and a
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`brief, fair summary of the substance of the information known by any such person;
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`(e)
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`any indemnity and insuring agreements under which any person or entity carrying
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`on an insurance business may be liable to satisfy part or all of a judgment entered
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`in this action or to indemnify or reimburse for payments made to satisfy the
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`judgment;
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`(f)
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`(g)
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`any settlement agreements relevant to the subject matter of this action; and
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`any statement of any party to the litigation.
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`2.
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`Disclosure of Expert Testimony.1 A party must disclose to the other parties the identity
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`of any witness it may use at trial to present evidence under Federal Rule of Evidence 702,
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`703 or 705, and:
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`(a)
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`if the witness is one retained or specially employed to provide expert testimony in
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`the case or one whose duties as the party’s employee regularly involve giving expert
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`testimony, provide the disclosures required by Federal Rule of Civil Procedure
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`26(a)(2)(B) and Local Rule CV-26; and
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`(b)
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`for all other such witnesses, provide the disclosure required by Federal Rule of Civil
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`Procedure 26(a)(2)(C).
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`3.
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`Additional Disclosures. Without awaiting a discovery request,2 each party will make the
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`following disclosures to every other party:
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`(a)
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`provide the disclosures required by the Patent Rules for the Eastern District of
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`Texas with the following modifications to P.R. 3-1 and P.R. 3-3:
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`i.
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`If a party claiming patent infringement asserts that a claim element is a
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`software limitation, the party need not comply with P.R. 3-1 for those claim
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`elements until 30 days after source code for each Accused Instrumentality
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`1 All expert reports should be written such that the report is organized with discrete
`paragraph numbers.
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`2 The Court anticipates that this disclosure requirement will obviate the need for requests
`for production.
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`is produced by the opposing party. Thereafter, the party claiming patent
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`infringement shall identify, on an element-by-element basis for each
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`asserted claim, what source code of each Accused Instrumentality allegedly
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`satisfies the software limitations of the asserted claim elements.
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`ii.
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`If a party claiming patent infringement exercises the provisions of
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`Paragraph 3(a)(i) of this Discovery Order, the party opposing a claim of
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`patent infringement may serve, not later than 30 days after receipt of a
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`Paragraph 3(a)(i) disclosure, supplemental “Invalidity Contentions” that
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`amend only those claim elements identified as software limitations by the
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`party claiming patent infringement.
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`(b)
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`produce or permit the inspection of all documents, electronically stored
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`information, and tangible things in the possession, custody, or control of the party
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`that are relevant to the pleaded claims or defenses involved in this action, except to
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`the extent these disclosures are affected by the time limits set forth in the Patent
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`Rules for the Eastern District of Texas; and
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`(c)
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`provide a complete computation of any category of damages claimed by any party
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`to the action, and produce or permit the inspection of documents or other
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`evidentiary material on which such computation is based, including materials
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`bearing on the nature and extent of injuries suffered, except that the disclosure of
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`the computation of damages may be deferred until the time for Expert Disclosures
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`if a party will rely on a damages expert.
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`4.
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`Protective Orders. The Court will enter the parties’ Agreed Protective Order.
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`5.
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`Discovery Limitations. The discovery in this cause is limited to the disclosures described
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`in Paragraphs 1-3 together with:
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`(a)
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`For the purposes of this section (Section 5 – Discovery Limitations), Plaintiff
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`Byteweavr, LLC shall count as a “side” and Defendant Databricks, Inc., shall count
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`as a “side.”
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`(b)
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`(c)
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`Interrogatories: Each side may serve up to 40 interrogatories on the other side.
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`Requests for Admission: There is no limit to the number of requests for admission
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`the parties may serve to establish the authenticity of documents. Each side may
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`serve up to 40 requests for admission on the other side.
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`(d)
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`Depositions:
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`i) Experts. An expert that provides a written report on more than one issue (for
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`example, invalidity and non-infringement) will be considered to have provided
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`separate expert reports per issue. An expert who submits a report on behalf of a side
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`may be deposed for 7 hours by the opposing side regarding each such report. An
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`expert who submits more than one report on behalf of a side for one of the above
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`actions may be deposed for 7 hours per report.
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`ii) Depositions of Parties and their Personnel. Each side may take up to 70 hours
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`of party and non-party depositions, including both 30(b)(6) and 30(b)(1)
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`depositions. Presumptively the parties will seek to depose any party fact witness
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`within one day. Except by mutual agreement, no single deposition of any one
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`witness can exceed seven (7) hours in a day. Depositions lasting less than three (3)
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`hours will count as three (3) hours on the record for purposes of the total deposition
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`time limit.
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`6.
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`iv) The limitations set forth in Fed. R. Civ. P. 30(d) apply to all witnesses.
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`Privileged Information. There is no duty to disclose privileged documents or
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`information. However, the parties are directed to meet and confer concerning privileged
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`documents or information after the Status Conference. By the deadline set in the Docket
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`Control Order, the parties shall exchange privilege logs identifying the documents or
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`information and the basis for any disputed claim of privilege in a manner that, without
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`revealing information itself privileged or protected, will enable the other parties to assess
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`the applicability of the privilege or protection. Any party may move the Court for an order
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`compelling the production of any documents or information identified on any other party’s
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`privilege log. If such a motion is made, the party asserting privilege shall respond to the
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`motion within the time period provided by Local Rule CV-7. The party asserting privilege
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`shall then file with the Court within 30 days of the filing of the motion to compel any proof
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`in the form of declarations or affidavits to support their assertions of privilege, along with
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`the documents over which privilege is asserted for in camera inspection. However, if the
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`party asserting privilege seeks an in camera review by the Court, such party shall first
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`obtain leave from the Court prior to delivery of documents to the Court.
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`7.
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`Signature. The disclosures required by this Order shall be made in writing and signed by
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`the party or counsel and shall constitute a certification that, to the best of the signer’s
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`knowledge, information and belief, such disclosure is complete and correct as of the time
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`it is made. If feasible, counsel shall meet to exchange disclosures required by this Order;
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`otherwise, such disclosures shall be served as provided by Federal Rule of Civil Procedure
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`5. The parties shall promptly file a notice with the Court that the disclosures required under
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`this Order have taken place.
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`8.
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`Duty to Supplement. After disclosure is made pursuant to this Order, each party is under
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`a duty to supplement or correct its disclosures immediately if the party obtains information
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`on the basis of which it knows that the information disclosed was either incomplete or
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`9.
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`incorrect when made, or is no longer complete or true.
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`Discovery Disputes.
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`(a)
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`Except in cases involving claims of privilege, any party entitled to receive
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`disclosures (“Requesting Party”) may, after the deadline for making disclosures,
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`serve upon a party required to make disclosures (“Responding Party”) a written
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`statement, in letter form or otherwise, of any reason why the Requesting Party
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`believes that the Responding Party’s disclosures are insufficient. The written
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`statement shall list, by category, the items the Requesting Party contends should be
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`produced. The parties shall promptly meet and confer. If the parties are unable to
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`resolve their dispute, then the Responding Party shall, within 14 days after service
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`of the written statement upon it, serve upon the Requesting Party a written
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`statement, in letter form or otherwise, which identifies (1) the requested items that
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`will be disclosed, if any, and (2) the reasons why any requested items will not be
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`disclosed. The Requesting Party may thereafter file a motion to compel.
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`(b)
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`An opposed discovery related motion, or any response thereto, shall not exceed 7
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`pages. Attachments to a discovery related motion, or a response thereto, shall not
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`exceed 5 pages. No further briefing is allowed absent a request or order from the
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`Court.
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`(c)
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`Prior to filing any discovery related motion, the parties must fully comply with the
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`substantive and procedural conference requirements of Local Rule CV-7(h) and (i).
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`Within 72 hours of the Court setting any discovery motion for a hearing, each
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`party’s lead attorney (see Local Rule CV-11(a)) and local counsel shall meet and
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`confer in person or by telephone, without the involvement or participation of other
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`attorneys, in an effort to resolve the dispute without Court intervention.
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`(d)
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`Counsel shall promptly notify the Court of the results of that meeting by filing a
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`joint report of no more than two pages. Unless excused by the Court, each party’s
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`lead attorney shall attend any discovery motion hearing set by the Court (though
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`(e)
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`(f)
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`the lead attorney is not required to argue the motion).
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`Any change to a party’s lead attorney designation must be accomplished by motion
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`and order.
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`Counsel are directed to contact the chambers of the undersigned for any “hot-line”
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`disputes before contacting the Discovery Hotline provided by Local Rule CV-
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`26(e). If the undersigned is not available, the parties shall proceed in accordance
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`with Local Rule CV-26(e).
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`10.
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`No Excuses. A party is not excused from the requirements of this Discovery Order because
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`it has not fully completed its investigation of the case, or because it challenges the
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`sufficiency of another party’s disclosures, or because another party has not made its
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`disclosures. Absent court order to the contrary, a party is not excused from disclosure
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`because there are pending motions to dismiss, to remand or to change venue.
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`11.
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`Filings. Only upon request from chambers shall counsel submit to the court courtesy
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`copies of any filings.
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`12.
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`Proposed Stipulations by the Parties Regarding Discovery.
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`The Parties agree to the following proposed stipulations (a)-(e):
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`(a) Privilege Logs. Neither party is required to log privileged materials dated on or after
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`the filing date of the original complaint for that case. The parties reserve the right to
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`request logs of specific kinds of privileged materials otherwise excluded by the
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`foregoing where good cause exists, such as a specific challenge to withheld discovery.
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`(b) Inadvertent Disclosure. Pursuant to Federal Rule of Evidence 502(d), inadvertent
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`production of materials covered by the attorney-client privilege or work-product
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`protection is not a waiver in this or any other federal or state proceeding. In case of
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`inadvertent production, at the producing party’s request, the receiving party shall
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`immediately return or destroy the inadvertently produced materials. The producing
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`party will provide a privilege log in accordance with Paragraphs 6 and 12.
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`(c) Expert Discovery. Testifying experts shall not be subject to discovery on any draft of
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`their reports in this case and such draft reports, declarations, notes, outlines, or any
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`other writings leading up to an issued report or filed declaration in this litigation are
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`exempt from discovery. No discovery may be taken from or about any consulting
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`expert that will not provide testimony and/or an expert opinion in the above-captioned
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`action (“Consulting Expert”) except to the extent that the Consulting Expert has
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`provided information, opinions, or other materials that a Testifying Expert relied on in
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`formulating their final report, trial, or deposition testimony or any opinion in this action
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`(“relied on”). In such a case where a Consulting Expert has provided materials or
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`information that a Testifying Expert has relied on, a deposition may be taken of the
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`Consulting Expert regarding those materials and information. Written or oral
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`communications between any Testifying Expert or Consulting Expert, their assistants,
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`and/or in-house counsel or outside counsel, or employees of or consultants for the party
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`or parties who engaged such Testifying Expert or Consulting Expert, are not subject to
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`discovery, except to the extent that the communications relate to compensation for the
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`expert’s study or testimony; or identify assumptions that the party's attorney provided
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`and that the expert relied on in forming the opinions to be expressed. The limitations
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`herein do not preclude a party from discovery of prior opinions or testimony of an
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`expert in matters other than the above-captioned action, to the extent the prior opinions,
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`or testimony are related to and/or may be inconsistent with the opinions given in this
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`action. For the avoidance of doubt, (a) emails, lists, agendas, outlines, memoranda,
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`presentations, letters, whether in draft or any other form, that are provided to, or by or
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`on behalf of, any expert and (b) any other types of preliminary work product created
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`by or on behalf of any expert are not subject to discovery unless relied upon by a
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`Testifying Expert in formulating their final report, trial or deposition testimony, or any
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`opinion in this action. Materials, communications, and other information exempt from
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`discovery under this Paragraph shall be treated as attorney work product for the
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`purposes of this litigation but need not be logged on a privilege log. This provision does
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`not change the existing protections for expert discovery and exceptions thereto set forth
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`in Fed. R. Civ. P. 26(b)(4).
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`(d) Third-Party Discovery. The parties will serve each other with copies of any subpoena
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`or deposition notice directed to a third-party on or before the day the subpoena or notice
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`is served on the third-party. A party who serves a subpoena in this case on a third party
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`shall provide a copy to the other party prior to service of that subpoena as required by
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`Fed. R. Civ. P. 45(a)(4). A party who receives documents from a third party pursuant
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`to a subpoena will reproduce those documents to the other party within five (5) business
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`days. Where reproduction of documents within five (5) business days is not possible,
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`the party who received the documents will provide prompt notice to the other parties
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`of receipt of the documents and will work in good faith to resolve the issue on a case-
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`by-case basis. The parties shall reasonably cooperate regarding the scheduling of
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`depositions of subpoenaed third parties.
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`(e) ESI Discovery & Email. The parties agree to meet and confer regarding entry of a
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`supplemental order regarding ESI discovery and email discovery based on the Court’s
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`Model Order Regarding E-Discovery in Patent Cases and to file a proposed
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`supplemental order regarding ESI discovery and email discovery at a mutually agreed
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`time. In the first instance, the parties agree that email shall not be subject to discovery.
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`After the parties have exchanged initial disclosures, the parties may meet and confer
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`regarding a party’s ability to specifically request email discovery and the restrictions
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`(such as the number of custodians and search terms) that will be applicable to such
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`email discovery. After the meet and confer, the parties may jointly submit a proposed
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`Modified ESI Order regarding this issue at that time.
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`(f) Narrowing Asserted Claims and Prior Art. The parties agree to submit a stipulation
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`regarding narrowing of claims and prior art.
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`(g) Service. The parties agree to electronic service of all correspondence, documents filed
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`under seal, written discovery requests, and responses to written discovery requests
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`(unless the volume of electronic information makes such delivery impractical). Parties
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`may serve all documents by e-mail by sending the documents to the email address for
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`all counsel of record in this case, or to an email address designated in writing for service
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`by a party’s outside counsel. Where a document is too large to serve by email, the
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`serving party shall send an email notice providing instruction for downloading the
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`document via FTP or similar file transfer service. Electronic service is deemed
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`complete upon sending. Counsel for Stingray designates the following electronic
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`service address: ByteweavrCounsel@bosfirm.com. Counsel for Databricks designates
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`the following electronic service address: ByteweavrvDatabricks@fenwick.com.
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`Documents are timely served by e-mail where the e-mail is sent by 11:59 pm Central
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`Time on the date due. Per Local Rule CV-5(d), documents e-mailed after 5:00 p.m.
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`Central Time shall be deemed served on the following day for purposes of calculating
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`a response date to the document served.
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`13.
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`Standing Orders. The parties and counsel are charged with notice of and are required to
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`fully comply with each of the Standing Orders of this Court. Such are posted on the Court’s
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`website, including at https://www.txed.uscourts.gov/?q=judge/chief-district-judge-rodney-
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`gilstrap. The substance of some such orders may be included expressly within this
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`Discovery Order, while others (including the Court’s Standing Order Regarding Protection
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`of Proprietary and/or Confidential Information to Be Presented to the Court During Motion
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`and Trial Practice) are incorporated herein by reference. All such standing orders shall be
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`binding on the parties and counsel, regardless of whether they are expressly included herein
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`or made a part hereof by reference.
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