Case 6:14-cv-00982-KNM Document 82-1 Filed 06/19/15 Page 1 of 11 PageID #: 536
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`Exhibit A
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`Case 6:14-cv-00982-KNM Document 82-1 Filed 06/19/15 Page 2 of 11 PageID #: 537
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`CELLULAR COMMUNICATIONS
`EQUIPMENT LLC,
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`Plaintiff,
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`v.
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`LG ELECTRONICS INC., ET AL.,
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`Defendants.
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`Civil Action No. 6:14-cv-982-JRG
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`AGREED 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
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`Procedure 26(a)(1), each party shall disclose to every other party the following
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`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
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`offered at trial);
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`(d)
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`the name, address, and telephone number of persons having knowledge of
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`relevant facts, a brief statement of each identified person’s connection with the
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`case, and a brief, fair summary of the substance of the information known by any
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`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. 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
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`expert testimony, provide the disclosures required by Federal Rule of Civil
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`Procedure 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
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`Civil Procedure 26(a)(2)(C).
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`3.
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`Additional Disclosures. Without awaiting a discovery request,1 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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`1 The Court anticipates that this disclosure requirement will obviate the need for requests
`for production.
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`4.
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`5.
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`P.R. 3-1(g): If a party claiming patent infringement asserts that a
`claim element is a software limitation, the party need not comply
`with P.R. 3-1 for those claim elements until 30 days after source
`code for each Accused Instrumentality is produced by the opposing
`party. Thereafter, the party claiming patent infringement shall
`identify, on an element-by-element basis for each asserted claim,
`what source code of each Accused Instrumentality allegedly
`satisfies the software limitations of the asserted claim elements.
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`P.R. 3-3(e): If a party claiming patent infringement exercises the
`provisions of P.R. 3-1(g), the party opposing a claim of patent
`infringement may serve, not later than 30 days after receipt of a
`P.R. 3-1(g) disclosure, supplemental “Invalidity Contentions” that
`amend only those claim elements identified as software limitations
`by the 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
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`to 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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`Protective Orders. The Court will enter the parties’ Agreed Protective Order.
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`Discovery Limitations. The discovery in this cause is limited to the disclosures
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`described in Paragraphs 1-3 together with:
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`(a)
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` Interrogatories.
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`i.
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`Plaintiff may serve up to 20 common interrogatories on the Defendants, as
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`well as 20 specific interrogatories on each Defendant.2
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`ii.
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`Defendants may serve up to 20 common interrogatories on Plaintiff. In
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`addition, each Defendant may serve 20 specific interrogatories on
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`Plaintiff.
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`(b)
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`Requests for Admission.
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`i.
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`ii.
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`Plaintiff may serve up to 50 requests for admission on each Defendant.
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`Each Defendant may serve up to 50 requests for admission on Plaintiff.
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`iii. Notwithstanding the limitations of 5(c)(i) and (ii), any party may serve an
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`unlimited number of requests for admission that seek an admission as to
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`(a) the authenticity of a particular document or thing, (b) the admissibility
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`of a particular document or thing, and/or (c) whether a document qualifies
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`as a printed publication under 35 U.S.C. § 102. Prior to serving any
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`request for admission regarding the admissibility of documents, each party
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`agrees to request that the opposing party stipulate to the admissibility of
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`such documents. If the opposing party fails to stipulate to the
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`admissibility of all such documents within two weeks of such request for
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`stipulation, the requesting party may service on the opposing party
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`requests for admission on all documents whose admissibility has not been
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`stipulated.
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`2 For purposes of this section 5, each common entity group is referred to separately as
`“Defendant” and shall be treated as a single and separate defendant from the other common
`entity groups. For example, for purposes of this section 5, LG Electronics, Inc. and LG
`Electronics U.S.A. comprise a common entity group and are considered, singularly, to be a
`Defendant.
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`Case 6:14-cv-00982-KNM Document 82-1 Filed 06/19/15 Page 6 of 11 PageID #: 541
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`(c)
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`Fact Depositions of Parties and Third Parties.
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`i.
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`Plaintiff may take up to 35 hours of total fact deposition testimony,
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`including depositions under Rule 30(b)(1) and Rule 30(b)(6), of each
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`Defendant (with former employees not counting toward this limit). The
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`parties recognize that multiple depositions requiring the services of a
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`translator may be cause for expanding this limit.
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`ii.
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`Defendant collectively may take up to 45 hours of fact deposition
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`testimony, including depositions under Rule 30(b)(1) and Rule 30(b)(6),
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`of Plaintiff (with former employees not counting toward this limit).
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`iii.
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`In addition to the limits set forth in Sections 5(c)(i)-(ii), supra, Plaintiff
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`may take the lesser of up to 90 hours of third party deposition testimony
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`(not including inventors) or a maximum of 20 total third party depositions.
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`Further, Defendants collectively may take the lesser of up to 120 hours of
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`third party deposition testimony (not including inventors) or a maximum
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`of 25 total third party depositions.
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`iv.
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`For each of Sections 5(c)(i)-(iii), each individual deposition (other than
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`individual 30(b)(6) designees) shall count for a minimum of 2.5 hours of
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`deposition time with respect to the limits set forth in those Sections.
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`(d)
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`Inventor Depositions. Depositions of inventors of patents asserted by CCE are
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`not included in the hour limitations set forth in Paragraphs 5(d)(ii)-(iii) and 5(f).
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`Defendants, collectively, may take 7 hours of fact deposition testimony of each
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`named inventor. Subject to resolution of any objection(s) of the inventor or
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`inventor’s employer, Defendants, collectively, may take 14 hours of fact
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`Case 6:14-cv-00982-KNM Document 82-1 Filed 06/19/15 Page 7 of 11 PageID #: 542
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`deposition testimony of each named inventor whose first language is a language
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`other than English. Fact deposition testimony of inventors is exclusive of any
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`time the inventor spends testifying as either a designated party witness or expert
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`witness. Defendants may seek additional deposition time for the named
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`inventors, if necessary.
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`(e)
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`Expert Depositions. Depositions of experts are not included in the hour
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`limitations set forth in Paragraphs 5(d) and 5(e) above. Plaintiff is limited to 5
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`testifying expert witnesses, and Defendants collectively are limited to 4 individual
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`testifying expert witnesses per Defendant plus 3 common testifying expert
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`witnesses.
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`i.
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`Infringement or Non-Infringement Experts: Plaintiff may depose each
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`non-infringement expert for the greater of 7 hours or 3 hours times the
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`number of asserted patents addressed by the expert. Defendants
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`collectively may depose each infringement expert testifying against them
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`for 7 hours times the number of asserted patents addressed by the expert,
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`plus 3 hours times one less than the number of Manufacturer Defendants.3
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`ii.
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`Validity or Invalidity Experts: Plaintiff may depose each invalidity expert
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`for the greater of 7 hours or 4 hours times the number of asserted patents
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`addressed by the expert. Defendants collectively may depose each
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`validity expert for the greater of 7 hours or 5 hours times the number of
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`asserted patents addressed by the expert.
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`3 For purposes of the Discovery Order in this action, “Manufacturer Defendant” means,
`e.g., the common entity group comprising LG Electronics, Inc. and LG Electronics U.S.A.
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`Case 6:14-cv-00982-KNM Document 82-1 Filed 06/19/15 Page 8 of 11 PageID #: 543
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`iii.
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`Damages and Other Experts: Plaintiff may depose each damages or other
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`expert for the greater of 7 hours or 3 hours times the number of
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`Defendants addressed by the expert. Defendant collectively may depose
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`each damages or other expert testifying against them for 5 hours times the
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`number of asserted patents addressed by the expert, plus 3 hours times one
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`less than the number of Manufacturer Defendants.
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`(f) Modification for Good Cause. Any party may later move to modify these
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`limitations for good cause. The parties recognize that they have conferred in good faith
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`in an effort to proffer this Agreed Discovery Order to the Court and have, thus, agreed to
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`establish limits herein that one or more party may believe to be either excessive or
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`insufficient in some way. As such, the parties agree to continue to confer in good faith
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`about modifications to this Order and recognize that any attempt by a party (or parties) to
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`modify this Order by motion will not be prejudiced by the fact of having made the
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`agreements set out herein.
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`6.
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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. At a date agreed upon by the
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`parties, the parties shall exchange privilege logs identifying the documents or information
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`and the basis for any disputed claim of privilege in a manner that, without revealing
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`information itself privileged or protected, will enable the other parties to assess the
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`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
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`party’s privilege log. If such a motion is made, the party asserting privilege shall respond
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`to the motion within the time period provided by Local Rule CV-7. The party asserting
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`privilege shall then file with the Court within 30 days of the filing of the motion to
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`compel any proof in the form of declarations or affidavits to support their assertions of
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`privilege, along with the documents over which privilege is asserted for in camera
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`inspection.
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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
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`Procedure 5. The parties shall promptly file a notice with the Court that the disclosures
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`required under 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
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`under a duty to supplement or correct its disclosures immediately if the party obtains
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`information on the basis of which it knows that the information disclosed was either
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`incomplete or incorrect when made, or is no longer complete or true.
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`9.
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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
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`be produced. The parties shall promptly meet and confer. If the parties are
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`unable to resolve their dispute, then the Responding Party shall, within 14 days
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`after service of the written statement upon it, serve upon the Requesting Party a
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`written statement, in letter form or otherwise, which identifies (1) the requested
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`items that will be disclosed, if any, and (2) the reasons why any requested items
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`will not be disclosed. The Requesting Party may thereafter file a motion to
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`compel.
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`(b)
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`In addition to the requirements of Local Rule CV-7(h) and (i), an opposed
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`discovery-related motion must
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`include a certification
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`that an
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`in-person
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`conference involving lead and local counsel for all parties to the discovery dispute
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`was held.
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`(c)
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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
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`because it has not fully completed its investigation of the case, or because it challenges
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`the 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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`Case 6:14-cv-00982-KNM Document 82-1 Filed 06/19/15 Page 11 of 11 PageID #: 546
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`(a)
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`Service by Electronic Mail. The Parties will make every effort to serve all
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`documents electronically, by e-mail or through ECF. A party may serve all
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`documents by e-mail on another party by sending the documents to the email
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`group address designated by a party, or if no such group is designated, to email
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`address for all counsel of record for the party. Documents are timely served by e-
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`mail where the e-mail is sent by 11:59 p.m. Central Time on the date due. Per
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`Local Rule CV5(d), documents e-mailed after 5:00 p.m. Central Time shall be
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`deemed served on the following day for purposes of calculating a response date to
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`the document served. For the avoidance of doubt, Local Rule CV-6(a) (adding 3
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`days for purposes of computing time to act within a specified time after service)
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`applies to documents served by e-mail.
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`(b)
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`ESI Order. The parties shall submit a separate Agreed ESI Order for the Court’s
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`entry.
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`(c)
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`Production of Materials Obtained Via Third-Party Subpoena. A party who serves
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`a subpoena in this matter on a third party shall immediately provide a copy to the
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`other party. A party who receives documents from a third party pursuant to a
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`subpoena will reproduce those documents to the other party within 3 business
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`days. Where reproduction of documents within 3 business days is not possible,
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`the party who received the documents will provide prompt notice to the other
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`party and will work in good faith to resolve the issue on a case-by-case basis.
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`IT IS SO ORDERED.
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