Case 5:19-cv-00036-RWS Document 277 Filed 04/14/20 Page 1 of 9 PageID #: 9955
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
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`MAXELL, LTD.,
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`v.
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`APPLE INC.,
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`Plaintiff,
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`Defendant.
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`Case No. 5:19-cv-0036-RWS
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`JURY TRIAL DEMANDED
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`JOINT MOTION TO PARTIALLY AMEND
`DOCKET CONTROL ORDER
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`Plaintiff Maxell, Ltd. and Defendant Apple Inc. hereby jointly move to further amend the
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`current Docket Control Order, as amended on March 16, 2020 (Dkt. No. 232), in the above-
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`captioned matter with respect to the timing of fact depositions and expert reports and discovery.
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`The proposed amendments do not impact the dates for trial or the pretrial conference.1
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`After the Court granted the parties’ previous request for an extension, the parties have
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`worked diligently to proceed with this case notwithstanding the COVID-19 related challenges.
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`The parties have worked to make the necessary arrangements to proceed with remote depositions,
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`to the extent possible, and to make Apple’s source code available for inspection at a third-party
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`facility. As of the date of this motion, Maxell has taken four remote depositions of Apple Rule
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`1 Apple believes that COVID-19 and other issues Apple has raised with Maxell necessitate
`further extensions to the schedule. Maxell agrees that COVID-19 related issues necessitate the
`extension requested herein; however, it does not believe that any further extensions are
`warranted. If the parties cannot reach agreement this week, Apple intends to raise those issues
`with the Court, including a motion to take two fact depositions after the deadline (Maxell
`contests the propriety of one of the fact witnesses, including whether he was noticed for a
`deposition within the fact discovery period). The parties agree that their request for the present
`extension is without prejudice to their arguments regarding any relief that either may seek.
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`

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`Case 5:19-cv-00036-RWS Document 277 Filed 04/14/20 Page 2 of 9 PageID #: 9956
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`30(b)(6) designees, and the parties have agreed on or are scheduling 11 more fact depositions2.
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`The parties also expect that Maxell will have access to review Apple’s source code at a third-party
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`facility this week.
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`While the parties worked diligently and expeditiously to make all needed arrangements
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`regarding review of Apple’s source code and the remote depositions, the parties will not be able
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`to complete all fact depositions by the current deadline of April 21. The parties, therefore, jointly
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`request that the deadline to complete fact depositions be extended by an additional 9 days, from
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`April 21 to April 30, 2020.3
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`To accommodate the timing of depositions, the parties further request that the deadline to
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`complete expert reports, and expert discovery similarly be extended by 9 days. The amendments
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`proposed in this Joint Motion does not change the dates for the hearing on dispositive motions,
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`pretrial disclosures and filings, the pretrial conference, or trial.
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`A table representing the current deadlines and proposed amendments is set forth below:
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`Current Date
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`Proposed
`Amended Date
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`Event
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`3 DAYS after
`conclusion of
`Trial
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`Parties to file Motion to Seal Trial Exhibits, if
`they wish to seal any highly confidential exhibits.
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`EXHIBITS: See Order Regarding Exhibits
`below.
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`2 These fact depositions include 8 additional Apple Rule 30(b)(6) witnesses, 1 remaining Maxell
`Rule 30(b)(6) witness, and 2 third-party witnesses.
`3 There are two fact depositions that cannot be scheduled to occur by either the current deadline
`or the proposed amended deadline (one of which is contested by Maxell as noted in footnote 1).
`To the extent Apple intends to call BJ Watrous at trial, Apple and Maxell have agreed that Apple
`will offer him for deposition before trial and as soon as the COVID-19 pandemic subsides.
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`Case 5:19-cv-00036-RWS Document 277 Filed 04/14/20 Page 3 of 9 PageID #: 9957
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`Current Date
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`Proposed
`Amended Date
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`Event
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`October 26, 2020
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`Court designated
`date – not flexible
`without good cause -
`Motion Required
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`October 26, 2020
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`Court designated
`date – not flexible
`without good cause -
`Motion Required
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`October 6, 2020
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`September 29,
`2020
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`[1 week before
`pretrial]
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`September 29,
`2020
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`[1 week before
`pretrial]
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`September 22,
`2020
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`[2 weeks before
`pretrial]
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`9:00 a.m. JURY TRIAL before Judge Robert W.
`Schroeder III, Texarkana, Texas.
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`For planning purposes, parties shall be prepared to
`start the evidentiary phase of trial immediately
`following jury selection.
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`9:00 a.m. JURY SELECTION before Judge
`Robert W. Schroeder III, Texarkana, Texas.
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`10:00 a.m. PRETRIAL CONFERENCE before
`Judge Robert W. Schroeder III, Texarkana,
`Texas.
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`
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`Discuss trial logistics and voir dire procedure.
`Resolve any pending motions or objections.
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`Lead trial counsel must attend the pretrial
`conference.
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`File a Notice of Time Requested for (1) voir dire,
`(2) opening statements, (3) direct and cross
`examinations, and (4) closing arguments.
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`File Responses to Motions in Limine.
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`File Motions in Limine and pretrial objections.
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`The parties are ORDERED to meet and confer to
`resolve any disputes before filing any motion in
`limine or objection to pretrial disclosures.
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`Case 5:19-cv-00036-RWS Document 277 Filed 04/14/20 Page 4 of 9 PageID #: 9958
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`Current Date
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`Proposed
`Amended Date
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`Event
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`September 22,
`2020
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`[2 weeks before
`pretrial]
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`September 15,
`2020
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`[3 weeks before
`pretrial]
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`September 8, 2020
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`[4 weeks before
`pretrial]
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`September 8, 2020
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`[4 weeks before
`pretrial]
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`File Joint Final Pretrial Order, Joint Proposed
`Jury Instructions with citation to authority and
`Form of the Verdict for jury trials.
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`Parties shall use the pretrial order form on Judge
`Schroeder’s website.
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`
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`Proposed Findings of Fact and Conclusions of Law
`with citation to authority for issues tried to the
`bench.
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`Exchange Objections to Rebuttal Deposition
`Testimony.
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`Notice of Request for Daily Transcript or Real
`Time Reporting of Court Proceedings due.
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`If a daily transcript or real time reporting of court
`proceedings is requested for trial or hearings, the
`party or parties making said request shall file a
`notice with the Court.
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`Exchange Rebuttal Designations and Objections to
`Deposition Testimony.
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`For rebuttal designations, cross examination line
`and page numbers to be included.
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`In video depositions, each party is responsible for
`preparation of the final edited video in accordance
`with their parties’ designations and the Court’s
`rulings on objections.
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`Case 5:19-cv-00036-RWS Document 277 Filed 04/14/20 Page 5 of 9 PageID #: 9959
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`Current Date
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`Proposed
`Amended Date
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`Event
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`August 25, 2020
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`[4 weeks before
`pretrial]
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`September 15,
`2020
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`Court designated
`date – not flexible
`without good cause -
`Motion Required
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`June 30, 2020
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`Court designated
`date – not flexible
`without good cause -
`Motion Required
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`Exchange Pretrial Disclosures (Witness List,
`Deposition Designations, and Exhibit List) by the
`Party with the Burden of Proof.
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`Video and Stenographic Deposition Designation
`due. Each party who proposes to offer deposition
`testimony shall serve a disclosure identifying the
`line and page numbers to be offered.
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`10:00 a.m. HEARING ON ANY REMAINING
`DISPOSITIVE MOTIONS (INCLUDING
`DAUBERT MOTIONS) before Judge Robert W.
`Schroeder III, Texarkana, Texas.
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`Any Remaining Dispositive Motions4 due from
`all parties and any other motions that may
`require a hearing (including Daubert motions).
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`Motions shall comply with Local Rule CV-56 and
`Local Rule CV-7. Motions to extend page limits
`will only be granted in exceptional circumstances.
`Exceptional circumstances require more than
`agreement among the parties.
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`
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`For each motion filed, the moving party shall
`provide the Court with one (1) copy of the
`completed briefing (opening motion, response,
`reply, and if applicable, surreply), excluding
`exhibits, in a three-ring binder appropriately
`tabbed. All documents shall be double-sided and
`must include the CM/ECF header. These copies
`shall be delivered to Judge Schroeder’s chambers in
`Texarkana as soon as briefing has completed.
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`Respond to Amended Pleadings.
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`4 I.e. any motions on issues other than indefiniteness.
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`Case 5:19-cv-00036-RWS Document 277 Filed 04/14/20 Page 6 of 9 PageID #: 9960
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`Current Date
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`Proposed
`Amended Date
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`Event
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`June 23, 2020
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`July 2, 2020
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`Parties to Identify Rebuttal Trial Witnesses.
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`[1 week before
`dispositive
`motions]
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`[1 week before
`dispositive
`motions]
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`June 16, 2020
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`June 25, 2020
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`[2 weeks before
`dispositive
`motions]
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`[2 weeks before
`dispositive
`motions]
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`Parties to Identify Trial Witnesses; Amend
`Pleadings (after Markman Hearing).
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`It is not necessary to file a Motion for Leave to
`Amend before the deadline to amend pleadings. It
`is necessary to file a Motion for Leave to Amend
`after the deadline. However, except as provided in
`Patent Rule 3-6, if the amendment would affect
`infringement contentions or invalidity contentions,
`a motion must be made pursuant to Patent Rule 3-6
`irrespective of whether the amendment is made
`prior to this deadline.
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`June 16, 2020
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`June 25, 2020
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`Expert Discovery Deadline.
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`[2 weeks before
`dispositive
`motions]
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`[2 weeks before
`dispositive
`motions]
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`May 26, 2020
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`June 4, 2020
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`[5 weeks before
`dispositive
`motions]
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`[5 weeks before
`dispositive
`motions]
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`April 28, 2020
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`May 7, 2020
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`[9 weeks before
`dispositive
`motions]
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`[9 weeks before
`dispositive
`motions]
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`Parties designate rebuttal expert witnesses (non-
`construction issues), rebuttal expert witness reports
`due. Refer to Local Rules for required information.
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`
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`If, without agreement, a party serves a
`supplemental expert report after the rebuttal expert
`report deadline has passed, the serving party must
`file notice with the Court stating service has
`occurred and the reason why a supplemental report
`is necessary under the circumstances.
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`Parties with burden of proof designate expert
`witnesses (non-construction issues). Expert
`witness reports due. Refer to Local Rules for
`required information.
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`April 21, 2020
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`April 30, 2020
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`Deadline to complete all fact depositions.
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`

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`Case 5:19-cv-00036-RWS Document 277 Filed 04/14/20 Page 7 of 9 PageID #: 9961
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`A proposed Docket Control Order is submitted herewith.
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`Case 5:19-cv-00036-RWS Document 277 Filed 04/14/20 Page 8 of 9 PageID #: 9962
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`Dated: April 14, 2020
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`/s/ Jamie B. Beaber
`Geoff Culbertson
`Kelly Tidwell
`Patton, Tidwell & Culbertson, LLP
`2800 Texas Boulevard (75503)
`Post Office Box 5398
`Texarkana, TX 75505-5398
`Telephone: (903) 792-7080
`Facsimile: (903) 792-8233
`gpc@texarkanalaw.com
`kbt@texarkanalaw.com
`
`Jamie B. Beaber
`Alan M. Grimaldi
`Kfir B. Levy
`James A. Fussell, III
`Baldine B. Paul
`Tiffany A. Miller
`Saqib Siddiqui
`Bryan Nese
`William J. Barrow
`Clark S. Bakewell
`Alison T. Gelsleichter
`MAYER BROWN LLP
`1999 K Street, NW
`Washington, DC 20006
`Telephone: (202) 263-3000
`Facsimile: (202) 263-3300
`jbeaber@mayerbrown.com
`agrimaldi@mayerbrown.com
`klevy@mayerbrown.com
`jfussell@mayerbrown.com
`bpaul@mayerbrown.com
`tmiller@mayerbrown.com
`ssiddiqui@mayerbrown.com
`bnese@mayerbrown.com
`wbarrow@mayerbrown.com
`cbakewell@mayerbrown.com
`agelsleichter@mayerbrown.com
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`Counsel for Plaintiff Maxell, Ltd.
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`/s/ Luann L. Simmons
`Luann L. Simmons (Pro Hac Vice)
`lsimmons@omm.com
`O’MELVENY & MYERS LLP
`Two Embarcadero Center, 28th Floor
`San Francisco, CA 94111
`Telephone: 415-984-8700
`Facsimile: 415-984-8701
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`Xin-Yi Zhou (Pro Hac Vice)
`vzhou@omm.com
`O’MELVENY & MYERS LLP
`400 S. Hope Street
`Los Angeles, CA 90071
`Telephone: 213-430-6000
`Facsimile: 213-430-6407
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`Marc J. Pensabene (Pro Hac Vice)
`mpensabene@omm.com
`Laura Bayne Gore (Pro Hac Vice)
`lbayne@omm.com
`O’MELVENY & MYERS LLP
`Times Square Tower, 7 Times Square
`New York, NY 10036
`Telephone: 212-326-2000
`Facsimile: 212-326-2061
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`Melissa R. Smith (TX #24001351)
`melissa@gilliamsmithlaw.com
`Bobby Lamb (TX #24080997)
`wrlamb@gillamsmithlaw.com
`GILLIAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
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`Attorneys for Defendant Apple Inc.
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`Case 5:19-cv-00036-RWS Document 277 Filed 04/14/20 Page 9 of 9 PageID #: 9963
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that all counsel of record who are deemed to have
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`consented to electronic service are being served with a copy of this document via the Court's
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`CM/ECF system per Local Rule CV-5(a)(3) on April 14, 2020.
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`/s/ Melissa R. Smith
`Melissa R. Smith
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`CERTIFICATE OF CONFERENCE
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`On April 13 and 14, pursuant to Local Rule CV-7(h), counsel for Defendant met and
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`conferred with counsel for Plaintiff, and counsel for Plaintiff indicated that Plaintiff joins in the
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`request for relief sought by this Motion.
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`/s/ Melissa R. Smith
`Melissa R. Smith
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