Case 5:19-cv-00036-RWS Document 46 Filed 07/09/19 Page 1 of 12 PageID #: 567
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`MAXELL, LTD.,
`
`v.
`
`APPLE INC.,
`
`Plaintiff,
`
`Defendant.
`
`Case No. 5:19-cv-0036-RWS
`
`JURY TRIAL DEMANDED
`
`DOCKET CONTROL ORDER
`
`It is hereby ORDERED that the following schedule of deadlines is in effect until
`
`further order of this Court:
`
`3 DAYS after
`conclusion of Trial
`
`Parties to file Motion to Seal Trial Exhibits, if they wish to seal
`any highly confidential exhibits.
`
`October 26, 2020
`
`Court designated date – not
`flexible without good cause
`- Motion Required
`
`October 26, 2020
`
`Court designated date – not
`flexible without good cause
`- Motion Required
`
`October 6, 2020
`
`EXHIBITS: See Order Regarding Exhibits below.
`
`9:00 a.m. JURY TRIAL before Judge Robert W. Schroeder III,
`Texarkana, Texas.
`
`For planning purposes, parties shall be prepared to start the
`evidentiary phase of trial immediately following jury selection.
`
`9:00 a.m. JURY SELECTION before Judge Robert W.
`Schroeder III, Texarkana, Texas.
`
`10:00 a.m. PRETRIAL CONFERENCE before Judge Robert W.
`Schroeder III, Texarkana, Texas.
`
`Discuss trial logistics and voir dire procedure. Resolve any pending
`motions or objections.
`
`Lead trial counsel must attend the pretrial conference.
`
`

`

`Case 5:19-cv-00036-RWS Document 46 Filed 07/09/19 Page 2 of 12 PageID #: 568
`
`September 29, 2020
`
`[1 week before
`pretrial]
`
`File a Notice of Time Requested for (1) voir dire, (2) opening
`statements, (3) direct and cross examinations, and (4) closing
`arguments.
`
`September 29, 2020
`
`File Responses to Motions in Limine.
`
`[1 week before
`pretrial]
`
`September 22, 2020
`
`File Motions in Limine and pretrial objections.
`
`[2 weeks before
`pretrial]
`
`The parties are ORDERED to meet and confer to resolve any
`disputes before filing any motion in limine or objection to pretrial
`disclosures.
`
`September 22, 2020
`
`[2 weeks before
`pretrial]
`
`File Joint Final Pretrial Order, Joint Proposed Jury Instructions
`with citation to authority and Form of the Verdict for jury trials.
`
`Parties shall use the pretrial order form on Judge Schroeder’s
`website.
`
`Proposed Findings of Fact and Conclusions of Law with citation to
`authority for issues tried to the bench.
`
`September 15, 2020
`
`Exchange Objections to Rebuttal Deposition Testimony.
`
`3 weeks before
`pretrial]
`
`September 8, 2020
`
`[4 weeks before
`pretrial]
`
`September 8, 2020
`
` [4 weeks before
`pretrial]
`
`Notice of Request for Daily Transcript or Real Time Reporting
`of Court Proceedings due.
`
`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.
`
`Exchange Rebuttal Designations and Objections to Deposition
`Testimony.
`
`For rebuttal designations, cross examination line and page numbers
`to be included.
`
`

`

`Case 5:19-cv-00036-RWS Document 46 Filed 07/09/19 Page 3 of 12 PageID #: 569
`
`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.
`
`August 25, 2020
`
` [6 weeks before
`pretrial]
`
`Exchange Pretrial Disclosures (Witness List, Deposition
`Designations, and Exhibit List) by the Party with the Burden of
`Proof.
`
`September 15, 2020
`
`Court designated date – not
`flexible without good cause
`- Motion Required
`
`June 9, 2020
`
`Court designated date – not
`flexible without good cause
`– Motion Required
`
`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.
`
`10:00 a.m. HEARING ON ANY REMAINING DISPOSITIVE
`MOTIONS (INCLUDING DAUBERT MOTIONS) before Judge
`Robert W. Schroeder III, Texarkana, Texas.
`
`Any Remaining Dispositive Motions1 due from all parties and
`any other motions that may require a hearing (including
`Daubert motions).
`
`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.
`
`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.
`
`Respond to Amended Pleadings.
`
`June 2, 2020
`
`Parties to Identify Rebuttal Trial Witnesses.
`
`1 I.e. any motions on issues other than indefiniteness.
`
`

`

`Case 5:19-cv-00036-RWS Document 46 Filed 07/09/19 Page 4 of 12 PageID #: 570
`
`
`
`[1 week before
`dispositive motions]
`
`
`
`May 26, 2020
`
` [2 weeks before
`dispositive motions]
`
`Parties to Identify Trial Witnesses; Amend Pleadings (after
`Markman Hearing).
`
`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.
`
`May 26, 2020
`
`Expert Discovery Deadline.
`
`[2 weeks before
`dispositive motions]
`
`May 5, 2020
`
`[5 weeks before
`dispositive motions]
`
`Parties designate rebuttal expert witnesses (non-construction issues),
`rebuttal expert witness reports due. Refer to Local Rules for
`required information.
`
`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.
`
`April 7, 2020
`
`[9 weeks before
`dispositive motions]
`
`Parties with burden of proof designate expert witnesses (non-
`construction issues). Expert witness reports due. Refer to Local
`Rules for required information.
`
`April 7, 2020
`
`Final Election of Asserted Prior Art.
`
`[9 weeks before
`dispositive motions]
`
`March 31, 2020
`
`Fact discovery deadline.
`
`

`

`Case 5:19-cv-00036-RWS Document 46 Filed 07/09/19 Page 5 of 12 PageID #: 571
`
`
`
`[10 weeks before
`dispositive motions]
`
`March 17, 2020
`
`Final Election of Asserted Claims.
`
`[12 weeks before
`dispositive motions]
`
`January 29, 2020
`
`Comply with P.R. 3-7. (Opinion of Counsel Defenses)
`
`[3 weeks after
`Markman hearing]
`
`January 8, 2020
`
`Court designated date – not
`flexible without good cause
`– Motion Required
`
`Markman Hearing and hearing on any Motion for Summary
`Judgment of Indefiniteness at 10:00 a.m. before Judge Robert
`W. Schroeder III, Texarkana, Texas.
`
`December 20, 2019
`
`P.R. 4-5(d) Chart due.
`
`[2 weeks before
`Markman hearing]
`
`December 16, 2019
`
`[~3 weeks before
`Markman hearing]
`
`
`
`The parties are to meet and confer and jointly submit a claim
`construction chart on computer disk in Word format listing each
`party’s proposed construction for each of the terms to be addressed
`at the Markman hearing, including any terms purported to be
`indefinite. The parties should prioritize and list the terms in order of
`most importance; the Court will address the terms in the prioritized
`order presented in the claim construction chart.
`
`Parties to file a notice with the Court stating the estimated amount of
`time requested for the Markman Hearing. The Court will notify the
`parties if it is unable to accommodate this request.
`
`Comply with P.R. 4-5(c) - Reply brief and supporting evidence
`regarding claim construction due. Plaintiff is to provide the Court
`with one (1) copy of the completed Markman briefing in its entirety
`(opening brief, response, and reply) and 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.
`
`

`

`Case 5:19-cv-00036-RWS Document 46 Filed 07/09/19 Page 6 of 12 PageID #: 572
`
`
`
`December 9, 2019
`
`[~4 weeks before
`Markman hearing]
`
`November 18, 2019
`
`[~7 weeks before
`Markman hearing]
`
`November 18, 2019
`
`[~7 weeks before
`Markman hearing]
`
`If a technical advisor has been appointed the moving party is to
`provide their Markman brief on disk or CD along with a hard copy,
`tabbed and bound with exhibits to the advisor.
`
`Comply with P.R. 4-5(b) - Responsive claim construction brief and
`supporting evidence due.
`
`Comply with P.R. 4-5(a) - The party claiming patent infringement
`shall serve and file an opening brief and any evidence supporting its
`claim construction.
`
`Briefing shall comply with Local Rules CV-7 and 56 and Patent
`Rule 4-5(e). Motions to extend page limits will only be granted in
`exceptional circumstances. Exceptional circumstances require more
`than joint agreement among the parties.
`
`Tutorials due. Deadline for parties, if they desire, to provide Court
`with tutorials concerning technology involved in patent(s). The
`parties shall submit one (1) copy of their tutorials to the Court. If a
`technical advisor has been appointed, each party that provides a
`tutorial shall provide a copy to the advisor.
`
`Preliminary Election of Asserted Prior Art.
`
`Proposed Technical Advisors due if one has not already been
`appointed. Parties to provide name, address, phone number, and
`curriculum vitae for up to three agreed technical advisors and
`information regarding the nominees’ availability for Markman
`hearing or a statement that an agreement could not be reached. If the
`parties cannot agree on a technical advisor, they shall not submit any
`proposed technical advisors to the Court. If the parties feel a
`technical advisor is unnecessary, they shall alert the Court at this
`time.
`
`November 6, 2019
`
`Discovery Deadline - Claim Construction Issues.
`
`[9 weeks before
`Markman hearing]
`
`Preliminary Election of Asserted Claims.
`
`November 6, 2019
`
`Respond to Amended Pleadings.
`
`

`

`Case 5:19-cv-00036-RWS Document 46 Filed 07/09/19 Page 7 of 12 PageID #: 573
`
`
`
`[9 weeks before
`Markman hearing]
`
`October 23, 2019
`
`[11 weeks before
`Markman hearing]
`
`October 16, 2019
`
`[12 weeks before
`Markman hearing]
`
`October 4, 2019
`
`Amended Pleadings (pre-claim construction) due from all
`parties, including inequitable conduct allegations.
`
`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, if the amendment
`would affect infringement contentions or invalidity contentions, a
`motion must be made pursuant to Patent Rule 3-6(b) irrespective of
`whether the amendment is made prior to this deadline.
`
`Comply with P.R. 4-3 (a) - Filing of Joint Claim Construction and
`Prehearing Statement.
`
`In the P.R. 4-3 filing, the parties shall list the most significant terms
`according to the parties’ priorities, which were agreed upon during
`the P.R. 4-2 meet and confer, indicating which of those terms will be
`case or claim dispositive. A maximum of 25 terms will be
`construed, unless parties have received other instruction from the
`Court. If the parties cannot agree to the most important 25 terms,
`the parties shall identify the terms that were agreed upon and then
`divide the remainder evenly between Plaintiff(s) and Defendant(s).
`
`The nonmoving party subject to an indefiniteness challenge must
`provide a preliminary identification of any expert testimony it
`intends to rely on in its response to the moving party’s indefiniteness
`challenge pursuant to P.R. 4-3(b).
`
`Comply with P.R. 4-3(b) (other than responses to indefiniteness)
`- Each party shall also simultaneously serve a disclosure of expert
`testimony consistent with Fed. R. Civ. P. 26(a)(2)(B(i)-(ii) or
`26(a)(2)(C) for any expert on which it intends to rely to support its
`proposed claim construction or indefiniteness position or to oppose
`any other party’s proposed claim construction.
`
`September 27, 2019
`
`Parties to meet and confer regarding their proposed claim
`constructions.
`
`September 25, 2019
`
`Comply with P.R. 4-2 - Exchange of Preliminary Claim
`Constructions and Extrinsic Evidence.
`
`

`

`Case 5:19-cv-00036-RWS Document 46 Filed 07/09/19 Page 8 of 12 PageID #: 574
`
`
`
`[15 weeks before
`Markman hearing]
`
`Privilege Logs to be exchanged by parties (or a letter to the Court
`stating that there are no disputes as to claims of privileged
`documents).
`
`September 4, 2019
`
`[18 weeks before
`Markman hearing]
`
`August 14, 2019
`
`[8 weeks after
`scheduling
`conference]
`
`July 10, 2019
`
`June 26, 2019
`
`[1 week after
`scheduling
`conference]
`
`Comply with P.R. 4-1 - Exchange Proposed Terms and Claim
`Elements for Construction.
`
`Comply with P.R. 3-3 and 3-4 - Invalidity Contentions due.
`Thereafter, except as provided in Patent Rule 3-6(a), it is necessary
`to obtain leave of Court to add and/or amend invalidity contentions,
`pursuant to Patent Rule 3-6(b).
`
`Defendant shall assert any counterclaims. After this deadline, leave
`of Court must be obtained to assert any counterclaims.
`
`Comply with Paragraphs 1 & 3 of the Discovery Order (Initial and
`Additional Disclosures)
`
`Defendant shall join additional parties. It is not necessary to file a
`motion to join additional parties prior to this date. Thereafter, it is
`necessary to obtain leave of Court to join additional parties.
`
`June 24, 2019
`
`Mediation
`
`[3 days after
`scheduling
`conference]
`
`Parties are encouraged, but not required, to mediate cases.
`
`If the parties agree to mediate, they shall jointly file a motion with a
`proposed order attached. The motion shall indicate whether the
`parties agree upon a mediator and shall include a mediation
`deadline. The parties shall confirm the mediator’s availability in
`light of the proposed deadline. If the parties cannot agree on a
`mediator, they may request the Court appoint a mediator.
`
`If the parties do not agree to mediate, they shall file a notice so
`indicating.
`
`June 12, 2019
`
`Comply with P.R. 3-1 and P.R. 3-2 - Disclosure of Asserted
`Claims and Infringement Contentions due. Thereafter, except as
`provided in Patent Rule 3-6(a), it is necessary to obtain leave of
`
`

`

`Case 5:19-cv-00036-RWS Document 46 Filed 07/09/19 Page 9 of 12 PageID #: 575
`
`
`
`
`
`[1 week before
`scheduling
`conference]
`
`Court to add and/or amend infringement contentions, pursuant to
`Patent Rule 3-6(b).
`
`Plaintiff shall join additional parties. It is not necessary to file a
`motion to join additional parties prior to this date. Thereafter, it is
`necessary to obtain leave of Court to join additional parties.
`
`Plaintiff shall add new patents and/or claims for patents-in-suit. It is
`not necessary to file a motion to add additional patents or claims
`prior to this date. Thereafter, it is necessary to obtain leave of Court
`to add patents or claims.
`
`Parties’ estimated
`number of trial days
`
`10 days.
`
`In the event that any of these dates fall on a weekend or Court holiday, the deadline
`
`is modified to be the next Court business day.
`
`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.”
`
`A party may request an oral hearing on a motion filed with the Court. Any such
`request shall be included in the text or in a footnote on the first page of the motion or any
`responsive pleading thereto. The Court does not hold telephonic hearings absent unusual
`circumstances.
`
`
`Other Limitations
`
`(a)
`
`(b)
`
`The following excuses will not warrant a continuance or justify a failure to
`comply with the discovery deadline:
`(i) The fact that there are motions for summary judgment or motions to
`dismiss pending;
`(ii) 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;
`(iii) 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
`shall include a chart in the format of the DCO that lists all of the remaining
`dates in one column (as above) and the proposed changes to each date in an
`
`

`

`Case 5:19-cv-00036-RWS Document 46 Filed 07/09/19 Page 10 of 12 PageID #: 576
`
`
`
`
`
`(c)
`
`additional adjacent column (if there is no change for a date the proposed date
`column should remain blank or indicate that it is unchanged). The motion to
`amend the DCO shall also include a proposed DCO in traditional two-column
`format that incorporates the requested changes and that also lists all remaining
`dates. In other words, the DCO in the proposed order should be complete such
`that one can clearly see all the remaining deadlines rather than needing to also
`refer to an earlier version of the DCO.
`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.
`(d) Motions in Limine: Each side is limited to one (1) motion in limine addressing
`no more than ten (10) disputed issues. In addition, the parties may file a joint
`motion in limine addressing any agreed issues. The Court views motions in
`limine as appropriate for those things that will create the proverbial “skunk in
`the jury box,” e.g., that, if mentioned in front of the jury before an evidentiary
`ruling can be made, would be so prejudicial that the Court could not alleviate
`the prejudice with an appropriate instruction. Rulings on motions in limine do
`not exclude evidence, but prohibit the party from offering the disputed
`testimony prior to obtaining an evidentiary ruling during trial.
`Exhibits: Each side is limited to designating 250 exhibits for trial absent a
`showing of good cause. The parties shall use the exhibit list sample form on
`Judge Schroeder’s website.
`Deposition Designations: Each side is limited to designating no more than ten
`(10) hours of deposition testimony for use at trial absent a showing of good
`cause. As trial approaches, if either side needs to designate more than ten (10)
`hours, the party may file a motion for leave and show good cause. All
`depositions to be read into evidence as part of the parties’ case-in-chief shall be
`EDITED so as to exclude all unnecessary, repetitious, and irrelevant testimony;
`ONLY those portions which are relevant to the issues in controversy shall be
`read into evidence.
`(g) Witness Lists: The parties shall use the sample form on Judge Schroeder’s
`website.
`
`(e)
`
`(f)
`
`ORDER REGARDING EXHIBITS, EXHIBIT LISTS AND WITNESS LISTS:
`
`
`A.
`
`
`On the first day of trial, each party is required to have:
`
`(1) One copy of their respective original exhibits on hand. Each exhibit shall
`be properly labeled with the following information: Identified as either
`Plaintiff’s or Defendant’s Exhibit, the Exhibit Number and the Case
`Number.
`(2) Three hard copies of each party’s exhibit list and witness list on hand.
`(3) One copy of all exhibits on USB Flash Drive(s) or portable hard drive(s).
`This shall be tendered to the Courtroom Deputy at the beginning of trial.
`(4) One copy of all expert reports on CD. This shall be tendered to the
`Courtroom Deputy at the beginning of trial.
`
`

`

`Case 5:19-cv-00036-RWS Document 46 Filed 07/09/19 Page 11 of 12 PageID #: 577
`
`
`
`B.
`
`
`
`C.
`
`
`D.
`
`
`E.
`
`
`
`
`
`The parties shall follow the process below to admit exhibits.
`
`(1) On the first day of trial, each party shall tender a preadmitted list of exhibits it
`plans to admit into evidence. This list shall include all exhibits which are NOT
`objected to or to which the Court has already overruled an objection. To the
`extent there are exhibits with outstanding objections for which the parties need
`a ruling from the Court, those exhibits should be separately included on the list
`and designated accordingly to reflect a pending objection. Parties shall entitle
`the list “[Plaintiff’s/Defendant’s] List of Preadmitted Exhibits.” If, during the
`course of the day’s testimony, a party wishes to offer an objected exhibit into
`evidence, the party may move for admission at the time it wishes to use that
`exhibit with a witness. The Court will then hear the opposing party’s objection
`and will rule on the objection at that time.
`
`(2) On each subsequent day of trial, the Court will commence by formally
`admitting all of the exhibits that were either unobjected to or allowed over
`objection and used during the previous day’s trial. The Court will ask for these
`exhibits to be read into the record and formally admitted into evidence at the
`beginning of that trial day. These will be the exhibits deemed admitted at trial.
`The parties shall keep a separate running list of all exhibits admitted throughout
`the course of trial.
`
`(3) At the conclusion of evidence, each party shall read into the record any exhibit
`that was used but not previously admitted during the course of trial and then
`tender its final list of every admitted exhibit, entitled “[Plaintiff’s/Defendant’s]
`Final List of All Admitted Exhibits.” To the extent there are exhibits that were
`not admitted during the course of trial, but for which there is agreement that
`they should be provided to the jury, the parties must inform the Court of those
`exhibits at the conclusion of evidence. The Court will then determine whether
`those exhibits will be allowed into the jury room for deliberations.
`
`At the conclusion of evidence, each party shall be responsible for pulling those
`exhibits admitted at trial and shall tender those to the Courtroom Deputy, who will
`verify the exhibits and tender them to the jury for their deliberations. One
`representative from each side shall meet with the Courtroom Deputy to verify the
`exhibit list.
`
`At the conclusion of trial, all boxes of exhibits shall be returned to the respective
`parties and the parties are instructed to remove these exhibits from the courtroom.
`
`Within five business days of the conclusion of trial, each party shall submit to the
`Courtroom Deputy:
`
`(1)
`
`A Final Exhibit List of Exhibits Admitted During Trial in Word format.
`
`

`

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`
`
`
`
`
`
`
`(2)
`
`(3)
`
`Two CD(s) containing admitted unsealed trial exhibits in PDF format. If
`the Court ordered any exhibits sealed during trial, the Sealed Exhibits shall
`be submitted on a separate CD. If tangible or over-sized exhibits were
`admitted, such exhibits shall be substituted with a photograph in PDF
`format.
`A disk containing the transcripts of Video Depositions played during trial,
`along with a copy of the actual video deposition.
`
`.
`
`
`
`____________________________________
`ROBERT W. SCHROEDER III
`UNITED STATES DISTRICT JUDGE
`
`SIGNED this 9th day of July, 2019.
`
`