Case 6:21-cv-00898-ADA Document 252 Filed 06/06/24 Page 1 of 29
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`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`ALMONDNET, INC.,
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`Plaintiff,
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`AMAZON.COM, INC., AMAZON.COM
`SERVICES LLC, and AMAZON WEB
`SERVICES, INC.,
`
`
`
`
`v.
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`
`
`
`
`
`
`
`Civil Action No. 6:21-cv-00898-ADA
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`JURY TRIAL DEMANDED
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`FILED UNDER SEAL
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`Defendants.
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`SECOND AMENDED JOINT PRETRIAL ORDER
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`Case 6:21-cv-00898-ADA Document 252 Filed 06/06/24 Page 2 of 29
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`Plaintiff AlmondNet,
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`Inc.
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`(“AlmondNet”) and Defendants Amazon.com,
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`Inc.,
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`Amazon.com Services LLC, and Amazon Web Services, Inc. (collectively, “Amazon”) hereby
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`submit the following proposed Second Amended Joint Pre-Trial Order pursuant to the Court’s
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`Scheduling Order (Dkt. No. 120), the Court’s Standing Order on Pre-Trial Procedures and
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`Requirements in Civil Cases, Federal Rules of Civil Procedures, and Local Rules of this Court. As
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`the parties have amended the majority of the exhibits to this Order, the parties have refiled all
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`exhibits to this order for the Court’s convenience. The parties note that the only exhibits that
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`remain unmodified as compared with Docket. Nos. 226 and 227 are Exhibits D-1, E-1, E-2, F-1,
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`F-2, H-1, H-2, I-1, and I-2.
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`The parties have stipulated to various matters identified herein and having identified
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`exhibits, witnesses, factual contentions, and triable issues:
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`It is hereby ORDERED as follows:
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`I.
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`APPEARANCES OF COUNSEL
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`The parties’ appearances of counsel are provided below and (in identical form) in
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`accompanying Exhibit A.
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`A.
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`Attorneys for Plaintiff AlmondNet, Inc.
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`Reza Mirzaie
`rmirzaie@raklaw.com
`Marc A. Fenster
`mfenster@raklaw.com
`Brian D. Ledahl
`bledahl@raklaw.com
`Benjamin T. Wang
`bwang@raklaw.com
`Adam Hoffman
`ahoffman@raklaw.com
`James A. Milkey
`jmilkey@raklaw.com
`Amy E. Hayden
`ahayden@raklaw.com
`James S. Tsuei
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`Case 6:21-cv-00898-ADA Document 252 Filed 06/06/24 Page 3 of 29
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`jtsuei@raklaw.com
`Jonathan Ma
`jma@raklaw.com
`Daniel B. Kolko
`dkolko@raklaw.com
`Jason M. Wietholter
`jwietholter@raklaw.com
`RUSS AUGUST & KABAT
`12424 Wilshire Boulevard 12th Floor
`Los Angeles, California 90025
`Tel: 310-826-7474
`Fax: 310-826-6991
`rak_almondnet@raklaw.com
`
`Andrea L. Fair
`andrea@wsfirm.com
`WARD, SMITH & HILL, PLLC
`1507 Bill Owens Parkway
`Longview, Texas 75604
`Tel: 903-757-6400
`Fax: 903-757-2323
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`B.
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`Attorneys for Defendant Amazon
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`J. David Hadden
`dhadden@fenwick.com
`Saina S. Shamilov
`sshamilov@fenwick.com
`Ravi R. Ranganath
`rranganath@fenwick.com
`Johnson Kuncheria
`jkuncheria@fenwick.com
`Johnathan Chai
`jchai@fenwick.com
`FENWICK & WEST LLP
`Silicon Valley Center
`801 California Street
`Mountain View, CA 94041
`Telephone: (650) 988-8500
`Fax: (650) 938-5200
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`Kevin X. McGann
`kmcgann@fenwick.com
`James S. Trainor
`jtrainor@fenwick.com
`Jessica Lin
`jessica.lin@fenwick.com
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`Case 6:21-cv-00898-ADA Document 252 Filed 06/06/24 Page 4 of 29
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`FENWICK & WEST LLP
`902 Broadway #14
`New York, NY 10010
`Telephone: (212) 921-2001
`Fax: (650) 938-5200
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`Brian M. Hoffman
`bhoffman@fenwick.com
`Christopher L. Larson
`clarson@fenwick.com
`Min Wu
`mwu@fenwick.com
`Eric Young
`eyoung@fenwick.com
`FENWICK & WEST LLP
`555 California Street, 12th Floor
`San Francisco, CA 94104
`Telephone: (415) 875-2300
`Fax: (415) 281-1350
`
`Jeffrey Ware
`FENWICK & WEST LLP
`401 Union Street, 5th Floor
`Seattle, WA 98101
`Telephone: (206) 389-4531
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`Deron R. Dacus
`ddacus@dacusfirm.com
`THE DACUS FIRM, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, TX 75701
`Tel: (903) 705-1117
`Fax: (903) 581-2543
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`Case 6:21-cv-00898-ADA Document 252 Filed 06/06/24 Page 5 of 29
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`II.
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`JOINT STATEMENT OF THE CASE
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`The parties’ joint statement of the case is provided below and (in identical form) in
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`accompanying Exhibit B.
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`This is an action for patent infringement. AlmondNet accuses Amazon of infringing:
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`•
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`•
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`Claims 37, 42, 43, and 45 of U.S. Patent No. 8,671,139 (“the ’139 patent”), and
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`Claims 24, 29, 31, and 32 of U.S. Patent No. 7,822,639 (“the ’639 patent”)
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`(collectively, the “asserted claims”), by making, using, selling, and/or offering for sale into the
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`United States the Accused Products. AlmondNet seeks damages of no less than a reasonable
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`royalty for Amazon’s infringement, together with interest and costs, as well as attorneys’ fees
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`under 35 U.S.C. § 285. AlmondNet denies that the asserted claims are invalid under 35 U.S.C. §§
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`101, 102, 103, and/or 112. AlmondNet denies that the asserted claims are rendered obvious by
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`prior art, are directed to patent-ineligible subject matter, or fail the written description requirement.
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`Amazon denies that it infringed or infringes any of the asserted claims. Amazon further
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`contends that the asserted claims are invalid under 35 U.S.C. §§ 101, 102, 103, and/or 112
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`including, without limitation, because they are rendered obvious by prior art, are directed to patent-
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`ineligible subject matter, and fail the written description requirement. Amazon thus denies that
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`AlmondNet is entitled to any relief whatsoever. Amazon contends that this is an exceptional case
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`and will seek its reasonable attorneys’ fees under 35 U.S.C. § 285.
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`III. CONTENTIONS OF THE PARTIES
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`The contentions of the parties are provided below and (in identical form) in accompanying
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`Exhibit C.
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`A.
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`AlmondNet, Inc.’s Contentions
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`The contentions below do not include every detail underlying each contention. AlmondNet
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`does not waive its already pending objections and any future motions or objections it may file or
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`Case 6:21-cv-00898-ADA Document 252 Filed 06/06/24 Page 6 of 29
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`otherwise make. By providing these contentions, AlmondNet does not concede that all of these
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`issues are appropriate for jury trial or bench trial.
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`The ’139 patent was duly and legally issued by the United States Patent and Trademark
`Office on March 11, 2014.
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`The ’139 patent claims priority to Provisional Application No. 60/804,937 filed on June
`16, 2006, and thus is entitled to this priority date.
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`The ’639 patent was duly and legally issued by the United States Patent and Trademark
`Office on October 26, 2010.
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`The ’639 patent claims priority to U.S. Application No. 09/723,391 filed on November 28,
`2000, and thus is entitled to this priority date.
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`Defendants were notified of their infringement of the Asserted Patents on July 24, 2019.
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`Defendants make, use, sell, and/or offer for sale Amazon Demand Side Platform (“Amazon
`DSP”) and Sponsored Display (collectively, “the Accused Products”). There are numerous
`subsystems and components that provide functionality for the Accused Products, including
`but not limited to Amazon Ad Exchange, Amazon Publisher Services, Stable Identity
`Service, Standalone Targeting Service, and “bidders” including Cornerstone and Dynamic
`Retail Ads.
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`Defendants infringe Claims 37, 42, 43, and 45 of the ’139 patent by making, using, selling
`and offering for sale the Accused Products in the United States.
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`Defendants infringe Claims 24, 29, 31, and 32 of the ’639 patent by making, using, selling
`and offering for sale the Accused Products in the United States.
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`At no point in time did Defendants redesign the Accused Products in an attempt to avoid
`infringement of the Asserted Patents.
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`Each of the asserted claims is not directed to patent-ineligible subject matter under 35
`U.S.C. § 101.
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`Each of the asserted claims is not invalid as obvious in view of the prior art under 35 U.S.C.
`§§ 102 and 103.
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`Each of the asserted claims is not invalid for failure to meet the written description
`requirement under 35 U.S.C. § 112.
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`Plaintiff has suffered damages in an amount to be determined at trial as a direct and
`proximate cause of Defendants’ direct infringement, and is entitled to an award of damages
`adequate to compensate it for Defendants’ infringement.
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`Plaintiff is entitled to a reasonable royalty.
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`Case 6:21-cv-00898-ADA Document 252 Filed 06/06/24 Page 7 of 29
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`Plaintiff is also entitled to ongoing royalties, an accounting, an award of interest, costs,
`attorneys’ fees, and any other relied the Court deems equitable and just.
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`Defendants’ infringement and conduct justifies finding this dispute an exceptional case.
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`Amazon is not entitled to an order requiring AlmondNet to pay its costs and attorneys’ fees
`reasonably incurred in defending this action.
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`AlmondNet is not equitably barred from recovering for any infringement proved under the
`doctrine of equivalents.
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`B.
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`Amazon’s Contentions
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`Amazon does not infringe any asserted claim of the ’139 or ’639 patents and each asserted
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`claim is invalid, including because they are directed to patent-ineligible subject matter.
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`AlmondNet is not entitled to any of the relief it seeks. Amazon further contends that:
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`The accused products do not include each and every element of any asserted claim,
`whether literally or under the doctrine of equivalents and therefore do not directly
`infringe as a matter of law;
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`AlmondNet has no evidence that any Amazon product or technology infringes any
`asserted claim of the asserted patents under any theory advanced by AlmondNet;
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`Each of the asserted claims of the asserted patents is directed to patent-ineligible
`subject matter under 35 U.S.C. § 101 and is therefore invalid;
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`Each asserted claim of each asserted patent is invalid because it is obvious in view
`of the prior art under 35 U.S.C. §§ 102 and 103;
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`Each asserted claim of each asserted patent is invalid for failure to meet the written
`description requirement under 35 U.S.C. § 112;
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`Amazon had no obligation to redesign or take any action after becoming aware of
`the asserted patents because it does not infringe any asserted claim and
`AlmondNet’s claims have no merit whatsoever;
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`Amazon is not liable to AlmondNet under any cause of action or legal theory
`AlmondNet asserts;
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`AlmondNet is not entitled to any of the recovery it seeks;
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`AlmondNet is not entitled to any other costs, interest, or further relief;
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`AlmondNet is not entitled to any damages, including but not limited to a reasonable
`royalty;
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`AlmondNet is not entitled to an injunction;
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`AlmondNet is not entitled to a finding of infringement;
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`AlmondNet is not entitled to enhanced damages, ongoing royalties, an accounting,
`or any award of interest, costs, or attorneys’ fees;
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`This case is exceptional;
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`Amazon is entitled to an order requiring AlmondNet to pay its costs and attorneys’
`fees reasonably incurred in defending this action; and
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`AlmondNet is equitably barred from recovering for any infringement proved under
`the doctrine of equivalents.
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`By providing these contentions, Amazon does not concede that all of these issues are
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`appropriate for jury trial or bench trial. Amazon also does not waive any of its pending or future
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`motions which, if granted, would render some or all of these issues moot. Amazon’s contentions
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`in this case are detailed in part in their pleadings, discovery responses, expert reports, and motions,
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`including their motions for summary judgment, Daubert motions, motions to strike, and motions
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`in limine, which Amazon incorporates here by reference.
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`IV.
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`STIPULATED FACTS
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`The parties agree to the following stipulated facts:
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`AlmondNet, Inc. is a corporation organized and existing under the laws of the state
`of Delaware, having its place of business at 37-18 Northern Blvd., Suite 404, Long
`Island City, New York, 11101.
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`Amazon.com, Inc. is a Delaware corporation with a principal place of business at
`410 Terry Ave. North, Seattle, Washington 98109.
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`Amazon.com Services LLC is a limited liability company organized under the laws
`of the State of Delaware, with a principal place of business at 410 Terry Ave. North,
`Seattle, Washington 98109. Amazon Services LLC is a wholly-owned subsidiary
`of Amazon.
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`Amazon Web Services, Inc. is a Delaware corporation with a principal place of
`business at 410 Terry Ave. North, Seattle, Washington 98109. Amazon Web
`Services, Inc. is a wholly-owned subsidiary of Amazon.com, Inc.
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`The ’139 patent has a priority date of June 16, 2006.
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`The ’639 patent has a priority date of November 28, 2000.
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`On August 27, 2021, AlmondNet filed the Complaint asserting infringement of the
`’139 and ’639 patents.
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`On November 18, 2022, AlmondNet filed its First Amended Complaint, also
`asserting infringement of the ’139 and ’639 patents.
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`The parties agree that the damages period for the ’139 patent is July 24, 2019 to
`June 14, 2027, the date on which the ’139 patent expires.
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`The parties agree that the damages period for the ’639 patent is August 27, 2015 to
`April 10, 2023, the date on which the ’639 patent expired.
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`V.
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`DISPUTED ISSUES OF FACT AND LAW
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`The parties identify the following issues that remain to be litigated. The parties reserve the
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`right to identify additional factual or legal issues that may arise, including issues raised by any
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`further discovery undertaken in this case or by the Court’s rulings on any pending or future motion.
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`By providing this statement, the parties do not concede that all of these issues are
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`appropriate for trial. The parties also do not waive any of their pending motions.
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`Whether Defendants have literally infringed any of the asserted claims of the
`asserted patents.
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`Whether Defendants directly infringe any of the asserted claims of the asserted
`patents under the doctrine of equivalents.
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`Whether the accused Amazon DSP directly infringes one or more of the asserted
`claims of the asserted patents.
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`Whether the accused Sponsored Display directly infringes one or more of the
`asserted claims of the asserted patents.
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`Whether one or more of the asserted claims are invalid under 35 U.S.C. §§ 102,
`103, and/or 112.
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`Whether one or more of the asserted claims are invalid because they are directed to
`ineligible subject matter under 35 U.S.C. § 101.
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`35 U.S.C. § 101 is at issue in this case.1 Under step two of the Supreme Court’s
`Alice test, factual issues will need to be tried to the jury. Specifically, the jury will
`have to decide whether, when taken individually or as an ordered combination, the
`elements of the asserted claims of the ’139 [and ’639] patent[s]2 involved only
`activities or technologies, if any, that a person of ordinary skill in the art would
`have considered to be well-known, routine, and conventional as of the time of the
`invention.
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`Whether the following references are prior art to the ’139 and ’639 patents:
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`The DoubleClick System;
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`The Engage System; and
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`“Advertising on the Internet” by Robbin Zeff and Brad Aronson, which you
`heard referred to as “Zeff 99.”
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`In the event that Defendants are found liable for infringement of one or more valid,
`asserted claims, the amount of the reasonable royalty to which AlmondNet is
`entitled.
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`1 At step 1 of the Supreme Court’s Alice test, the Court held that the claims of the ’139 patent
`were directed to an abstract idea and the claims of the ’639 patent were not. (Dkt. 244.)
`Defendants contend that the claims of both asserted patents are directed to abstract ideas and
`reserve the right to take up the eligibility of the ’639 patent on appeal.
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` AlmondNet’s Position: Although the Court ruled that the claims of the ’639 patent are not
`directed to an abstract idea, the jury should still render a decision on Alice step 2, particularly since
`Amazon has stated that it reserves the right to appeal the Court’s decision on Alice step 1. See
`EcoFactor, Inc. v. Google LLC, No. 2023-01101, slip. op. at 5 (Fed. Cir. June 3, 2024) (“[A]
`district court’s denial of summary judgment is not appealable after a trial on the merits.”); see also
`id. at 5-6 (“[A]n order denying summary judgment is not a judgment and does not foreclose trial
`on the issues on which summary judgment was sought.”) (cleaned up).
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`Amazon’s Position: There are no eligibility issues for trial on the ’639 patent because the Court
`has already ruled that the asserted claims are directed to eligible subject matter. (Dkt. 244.) Alice
`step 1 is a legal question, and the Court ruled at step 1 that the ’639 patent does not claim an
`abstract idea. That is the law of the case. The Court did not decide any fact issues concerning the
`eligibility of the ’639 patent or find that there was a question of fact for trial. AlmondNet’s citation
`to EcoFactor is therefore inapt because there, the Court did not rule the claims non-abstract as a
`matter of law; instead, it simply denied a motion seeking summary judgment of ineligibility,
`leaving step 2 fact questions for trial. AlmondNet invites error by seeking an advisory verdict
`from the jury The Court should decline.
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`In the event that Defendants are found liable for infringement of one or more valid,
`asserted claims, whether AlmondNet is entitled to pre-judgment interest and, if so,
`the dollar amount.
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`In the event that Defendants are found liable for infringement of one or more valid,
`asserted claims, whether AlmondNet is entitled to post-judgment interest and, if so,
`the dollar amount.
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`Whether the case is exceptional.
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`Whether AlmondNet is entitled to an order requiring Amazon to pay all or a portion
`of AlmondNet’s costs and attorneys’ fees it incurred in bringing this action.
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`Whether Amazon is entitled to an order requiring AlmondNet to pay all or a portion
`of Amazon’s costs and attorneys’ fees in defending against this action.
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`VI.
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`EXHIBITS
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`The parties’ Joint Exhibit List is attached as Exhibit D-1. AlmondNet’s Exhibit List and
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`Amazon’s objections thereto are attached as Exhibit D-2. Amazon’s Exhibit List and
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`AlmondNet’s objections thereto are attached as Exhibit D-3.
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`VII. WITNESSES
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`AlmondNet’s witness list for the jury trial, with Amazon’s objections, is attached as
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`Exhibit E-1. Amazon’s witness list for the jury trial, with AlmondNet’s objections, is attached as
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`Exhibit E-2.
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`VIII. DEPOSITION DESIGNATIONS
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`AlmondNet’s deposition designations with Amazon’s objections and counter-designations
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`are attached as Exhibit F-1. Amazon’s deposition designations with AlmondNet’s objections and
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`counter-designations are attached as Exhibit F-2.
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`IX.
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`STIPULATIONS AND TRIAL DISCLOSURES
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`The following stipulations were agreed upon by the parties as discussed below and are
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`made a part of this Pretrial Order.
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`The parties agree to the following procedure which will govern the disclosure of witnesses,
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`exhibits, deposition testimony and demonstratives to use at trial and the process to identify any
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`objections remaining between the parties with regard to these disclosures:
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`A. Motions
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`All motions for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a) may be
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`brought to the Court orally or in writing. Unless the Court sets alternative deadlines, all oppositions
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`to motions filed pursuant to Fed. R. Civ. P. 50(b) must be filed within 28 days of the filing of the
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`motion. All replies in support of the motions must be filed within 21 days of service of any
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`oppositions. The parties reserve their right to seek reasonable extensions of these deadlines, subject
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`to the Court’s approval.
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`B.
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`Juror Notebooks
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`The parties, at AlmondNet’s expense, shall provide juror notebooks to the Clerk in advance
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`of trial for distribution to each juror, which will include the following: 1) copies of the Asserted
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`Patents with their respective exhibit stamp/numbering, 2) the Court’s claim constructions, 3) a
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`blank notepad, 4) photographs of each witness, and 5) a pen.
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`C.
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`Exhibits
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`The Exhibit Lists set forth the parties’ exhibits for their respective cases-in-chief; the lists
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`do not include potential impeachment material, which will not be introduced into evidence. The
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`parties reserve the right to offer exhibits for purposes of impeachment that are not included in the
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`Exhibit Lists.
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`No exhibit will be admitted unless offered into evidence through a witness, who must at
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`least be shown the exhibit. A party that has used an exhibit with the witness and wishes that exhibit
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`to be admitted into evidence must formally move the exhibit into evidence by exhibit number and
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`may do so at any time after having used it with a witness during direct or cross-examination.
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`Exhibits may not be published, displayed, or otherwise shown to the jury until after they have been
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`admitted into evidence. Once admitted, counsel may publish exhibits to the jury without requesting
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`to do so. The parties may use each other’s exhibits listed on the parties’ respective exhibit lists
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`attached hereto to the same effect as though it were on its own exhibit list, subject to all evidentiary
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`objections. However, another party’s exhibit is not admissible merely by virtue of being on an
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`exhibit list or over an objection; a party seeking to introduce another party’s exhibit must still have
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`a witness sponsor the exhibit into evidence as described above subject to any objections.
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`The parties agree that any description of a document on an exhibit list is provided for
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`convenience only and shall not be used as an admission or otherwise as evidence regarding the
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`listed document or any other listed document.
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`The parties agree that any exhibit listed on any party’s exhibit list as to which no objection
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`remains pending at the time of opening statements may be shown to the jury during opening
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`statements.
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`No party will remove a document from its exhibit list without agreement from the other
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`party unless it provides the other party the opportunity to add the document to its exhibit list.
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`Finally, legible copies of United States patents and the file prosecution histories of United
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`States patents may be offered and received in evidence in lieu of certified copies thereof, subject
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`to all other objections which might be made to the admissibility of certified copies.
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`D.
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`Trial Exhibit Disclosures
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`No later than 7:00 p.m.3 two (2) calendar days before their introduction (e.g., Sunday
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`evening for a witness to be called on Tuesday), counsel shall (1) provide opposing counsel with
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`an identification of trial exhibits to be used on direct examination of each witness (both live and
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`by deposition) and (2) make any non-documentary trial exhibits to be used with the witness
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`3 All times noted herein are Central Time.
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`available for physical inspection. Any objections to the identified exhibits shall be provided no
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`later than 8:30 p.m. one (1) calendar day before the exhibits are proposed to be introduced and the
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`parties shall meet and confer telephonically or in person in an attempt to resolve any objections to
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`the exhibits at 9:00 p.m. the day the objections are provided. The parties will continue in good
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`faith to meet and confer regarding exhibits and if objections remain unresolved, the parties will
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`cooperate in seeking to have the Court resolve any disputes prior to the introduction of the exhibit.
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`The parties stipulate to the authenticity of each document that on its face appears to be
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`generated by a party (plaintiff or defendant). The parties reserve the right to add additional
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`deposition designations to establish the foundation and authenticity of an exhibit to the extent the
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`admissibility of a particular document is challenged. Notwithstanding this stipulation, each party
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`preserves its right to object to the document on any ground other than authenticity. The final
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`exhibit lists are those attached to this Joint Pre-Trial Order. Those final exhibit lists shall not be
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`supplemented without approval of all parties or leave of the Court upon a showing of good cause.
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`E. Witnesses
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`The parties agree to disclose the witnesses in the order that they will be called. No later
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`than 7:00 p.m. two (2) calendar days before their anticipated introduction, counsel shall provide
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`to opposing counsel the names and order of witnesses to be called (both live and by deposition).
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`For example, if a witness is expected to testify on a Monday, the witness must be identified by
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`7:00 p.m. on the previous Saturday. Any objections to the identified witnesses shall be provided
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`no later than 8:30 p.m. the day before the witness is offered to testify and the parties shall meet
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`and confer telephonically or in person in an attempt to resolve any objections to the witnesses at
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`9:00 p.m. the day the objections are provided. If counsel intends to change the order of witnesses
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`or the matter of presentation of witness testimony (i.e., by live video feed), they shall notify the
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`other side immediately according to the parties’ agreement regarding how to deal with such
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`disruptions, set forth below in the undisputed portions of section XIV. The parties will continue in
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`good faith to meet and confer regarding witnesses and if objections remain unresolved, the parties
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`will cooperate in seeking to have the Court resolve any disputes prior to the introduction of the
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`witness.
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`Fact witnesses are not to be allowed into the courtroom before they testify on the stand or
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`after. The only exception is the parties’ client representative, who will be allowed in the courtroom
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`even if testifying in the case.
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`An expert witness testifying in rebuttal may testify as to matters within the scope of the
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`counterpart expert’s testimony that had not been disclosed in the testifying expert’s report to the
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`extent the testifying expert did not have an opportunity during discovery to respond to a competing
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`opinion.
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`F.
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`Deposition Testimony4
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`For any witnesses whose testimony AlmondNet intends to present by deposition on the
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`first day of trial, it shall identify a list of deposition designations to be played or read to the jury
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`by 5:00 p.m. on Friday, June 7. Amazon shall provide objections and counter-designations by 7:00
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`p.m. on Saturday, June 8. Going forward, for any witnesses whose testimony the parties intend to
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`present by deposition, the parties shall identify a list of deposition designations to be played or
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`read to the jury by 7:00 p.m. two (2) calendar days before the designations are to be played or read
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`to the jury. Any objections and counter-designations shall be provided no later than 3:00 p.m. the
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`day before the designations are to be played or read to the jury. Any objections to counter-
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`designations shall be provided no later than 7:00 p.m. the day the counter-designations are
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`4 To the extent permitted by the Federal Rules of Evidence and rulings from the Court, the
`parties agree that final deposition transcripts provided by the court reporter may be used at trial
`whether or not the transcripts of such depositions have been signed by the witness and filed as set
`forth in Federal Rule of Civil Procedure 30(b).
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`provided. The party introducing the deposition testimony shall be responsible for editing the
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`deposition video to include the testimony and any counter-designation testimony, and remove any
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`attorney objections, and provide a final version of the deposition testimony excerpts (testimony
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`clip report) to the other party by 8:30 p.m. the day before it is to be shown to the jury. If the party
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`intends to read the deposition testimony into the record instead of playing the video, the party shall
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`state that in writing by 7:00 p.m. the day before the testimony is to be introduced. The parties
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`shall meet and confer at 9:00 p.m. the day before the deposition testimony is to be shown to the
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`jury in an attempt to resolve any objections to the deposition. The parties will continue in good
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`faith to meet and confer regarding the proposed deposition testimony and if objections remain
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`unresolved, the parties will cooperate in seeking to have the Court resolve any disputes prior to
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`presenting the proposed testimony.
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`Any deposition testimony not specifically identified on a party’s deposition designation list
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`may still be used at trial for the purposes of impeachment, if otherwise competent for that purpose.
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`When a party uses deposition testimony for impeachment, the party may elect to either play the
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`deposition testimony by video or to read the deposition testimony live, unless the Court orders
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`otherwise.
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`All designated deposition testimony may be played by video or may be read live in court,
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`subject to the procedures set forth in this Pretrial Order. The parties agree that any counter-
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`designations identified pursuant to the process in this section above, to which the other party did
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`not object or to which the Court overruled the objection, may be included in the reading or video
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`playing of deposition designations at the election of the counter-designating party. A party may
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`also use the counter-designations of the other party. To the extent that the trial is subject to specific
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`time limitations, the time available for each party’s trial presentation shall count against the length
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`of its designated and counter-designated testimony read or played. The designations and counter-
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`designations must be presented in the order they appear in the transcript. All colloquy between
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`counsel and objections will be eliminated as much as practicable when deposition testimony is
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`presented at trial.
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`The procedures concerning deposition testimony discussed above do not apply to any
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`previously admitted witness deposition testimony the parties intend to present during the closing
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`statements.
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`G.
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`Demonstrative Exhibits
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`“Demonstratives” are exhibits specifically created for the purpose of the trial or physical
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`objects that are shown to the jury but are not made part of the evidentiary record. Demonstrative
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`exhibits that the parties intend to use at trial need not be included on the parties’ respective exhibit
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`lists. Demonstratives exchanged per the procedure below will not be used by an opposing party
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`prior to being used by the disclosing party.
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`The parties shall exchange copies of all documentary, graphic, slide, animation, and any
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`other form of demonstratives, such as physical devices, that they plan to use at trial during direct
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`examination, but not for cross-examinations, by 7:00 p.m. one (1) calendar day before their
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`anticipated use. In other words, if a demonstrative will be used on Monday, it must be exchanged
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`or made available by 7:00 p.m. on the previous Sunday.
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`The substance, including a mock-up, of any demonstratives a party intends to create live
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`during opening statements[, closing arguments,]5 or direct witness examinations must be
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`disclosed pursuant to the procedures outlined in this section.
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`Reasonable nonsubstantive edits or corrections of typographical and similar errors to
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`demonstrative exhibits may be made to such exhibits prior to use. Any physical demonstratives,
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`5 The parties’ positions on disclosure of materials used in closing demonstratives are set forth
`below.
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`including any poster boards, must be made available for inspection at the same time and photos or
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`electronic images of the physical demonstratives must be disclosed at the same time along with
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`the other demonstratives.
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`Any objections to the demonstrative exhibits shall be provided by 8:30 p.m. the day before
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`their anticipated use. The parties shall meet and confer telephonically in an attempt to resolve any
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`objections to the demonstratives at 9:00 p.m. the day the objections are provided. The p