Case 1:24-cv-00039-TSK Document 127 Filed 04/26/24 Page 1 of 10 PageID #: 261
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
`
`IN RE: AFLIBERCEPT PATENT
`LITIGATION
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`THIS DOCUMENT RELATES TO ALL CASES
`
`PRETRIAL ORDER #1: INITIAL SCHEDULING CONFERENCE
`
`MDL No: 1:24-MD-3103-TSK
`
`
`The Court finds that the civil actions transferred to this
`Court as part of this MDL merit special attention as complex
`litigation matters and ORDERS the following:
`1. APPLICABILITY OF ORDER: Prior to the initial conference
`and the entry of a comprehensive order governing all further
`proceedings in this case, the provisions of this order shall govern
`the practice and procedure in those actions that were transferred
`to this Court by the Judicial Panel on Multi-District Litigation
`(the “Panel”) pursuant to its order on April 11, 2024 (ECF. No.
`1), as well as all related actions originally filed in, transferred
`to, or removed to this Court. This order will also apply to any
`“tag-along” actions later filed in, removed to, or transferred to
`this Court.
`2. CONSOLIDATION: The civil actions described in paragraph 1
`of this order are consolidated for pretrial purposes only. Any
`tag-along actions later filed in, removed to, or transferred to
`
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`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
`
`IN RE: AFLIBERCEPT PATENT
`LITIGATION
`
`
`
`
` - - - - - - - - - - - - - - - -
`
`THIS DOCUMENT RELATES TO ALL CASES
`
`PRETRIAL ORDER #1: INITIAL SCHEDULING CONFERENCE
`
`MDL No: 1:24-MD-3103-TSK
`
`
`The Court finds that the civil actions transferred to this
`Court as part of this MDL merit special attention as complex
`litigation matters and ORDERS the following:
`1. APPLICABILITY OF ORDER: Prior to the initial conference
`and the entry of a comprehensive order governing all further
`proceedings in this case, the provisions of this order shall govern
`the practice and procedure in those actions that were transferred
`to this Court by the Judicial Panel on Multi-District Litigation
`(the “Panel”) pursuant to its order on April 11, 2024 (ECF. No.
`1), as well as all related actions originally filed in, transferred
`to, or removed to this Court. This order will also apply to any
`“tag-along” actions later filed in, removed to, or transferred to
`this Court.
`2. CONSOLIDATION: The civil actions described in paragraph 1
`of this order are consolidated for pretrial purposes only. Any
`tag-along actions later filed in, removed to, or transferred to
`
`
`
` -
`
`
`
`Case 1:24-cv-00039-TSK Document 127 Filed 04/26/24 Page 2 of 10 PageID #: 262
`PRETRIAL ORDER #1: INITIAL SCHEDULING CONFERENCE
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`this Court, will automatically be consolidated with this action
`without the necessity of future motions or orders. This
`consolidation, however, does not constitute a determination that
`the actions should be consolidated for trial, nor does it have the
`effect of making any entity a party to any action in which it has
`not been named, served, or added in accordance with the Federal
`Rules of Civil Procedure.
`3. DATE OF INITIAL SCHEDULING CONFERENCE & AGENDA: Matters
`relating to pretrial and discovery proceedings in these cases will
`be addressed at an initial scheduling conference to be held on May
`17, 2024, at 11:00 a.m. by Zoom Videoconference:
`By Video
`https://www.zoomgov.com/j/1615393258?pwd=RytYTGFhejlLTy9VRH
`FNVThnZ3o1QT09
`Meeting ID: 161 539 3258
`Passcode: 476312
`
`By Telephone
`+1 646 828 7666 US (New York)
`+1 551 285 1373 US
`Meeting ID: 161 539 3258
`Passcode: 476312
`
`
`All counsel are expected to familiarize themselves with the Fed.
`Judicial Ctr., Manual for Complex Litigation (4th ed., 2004) (the
`“MCL”) and be prepared at the conference to suggest procedures
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`Case 1:24-cv-00039-TSK Document 127 Filed 04/26/24 Page 3 of 10 PageID #: 263
`PRETRIAL ORDER #1: INITIAL SCHEDULING CONFERENCE
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`that will facilitate the expeditious, economical, and just
`resolution of this litigation. The items listed in sections 22.6,
`22.61, 22.62, and 22.63 shall, to the extent applicable, constitute
`a tentative agenda for the conference. Counsel shall confer and
`seek consensus to the extent possible with respect to the items on
`the agenda, including a proposed discovery plan [see MCL § 11.421],
`amendment of pleadings, and consideration of any class action
`allegations and motions. If the parties have any suggestions as to
`the case management orders or additional agenda items including
`suggestions on counsel structure, these should be submitted on or
`before May 10, 2024.
`4. POSITION STATEMENT & NOTICE OF PENDING MOTIONS: The
`plaintiff and the defendants shall submit to the Court on or before
`May 10, 2024, via e-mail at shannon_gibson@wvnd.uscourts.gov a
`concise
`written
`statement
`indicating
`their
`preliminary
`understanding of the facts involved in the litigation and the
`critical factual and legal issues, as well as a list of all related
`cases pending in state or federal court, together with their
`current status, including any discovery taken to date, to the
`extent known. These statements will NOT be filed with the Clerk
`of Court, will not be binding, will not waive any claims or
`defenses, and may not be offered in evidence against a party in
`later proceedings. Each party is limited to one submission. Each
`party shall submit a courtesy copy of the position statement to
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`PRETRIAL ORDER #1: INITIAL SCHEDULING CONFERENCE
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`opposing counsel. The statements shall also include an attachment
`detailing motions pending in the member cases of this MDL at the
`time of their transfer to this Court by the Panel. Each motion
`shall be identified by member case number and style, as well as by
`the document number assigned to the motion. Counsel shall also
`file the list of motions with the Clerk’s office as “Notice of
`Pending Motions” in 1:24-md-3103 under “Other Documents.” The
`Notice of Pending Motions filed in this MDL will serve as re-
`notice for resolution. The re- noticed motions will be considered
`pending as of the date of the filing of the Notice of Pending
`Motions.
`5. APPEARANCE: Each party represented by counsel shall
`appear at the initial scheduling conference through its attorney
`by Zoom. Parties not represented by counsel must appear by Zoom.
`To minimize costs and facilitate a manageable conference, parties
`with similar interests may agree, to the extent practicable, to
`have an attending attorney represent their interest at the
`conference. By designating an attorney to represent its interest
`at the conference, a party will not be precluded from other
`representation during the litigation. Attendance at the conference
`will not waive objections to jurisdiction, venue, or service.
`6. SERVICE: Prior to the initial scheduling conference,
`service of all papers shall be made on counsel of record appearing
`in these cases. The docket is the official record of the service
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`list. The parties shall present to the Court at the initial
`scheduling conference a comprehensive list of attorneys and their
`office addresses, fax numbers, and e-mail addresses for purposes
`of service. Each attorney must designate with which party he or
`she is associated.
`7. STAY: Pending the initial scheduling conference and
`further orders of this Court, all outstanding discovery
`proceedings are stayed, and no further discovery shall be
`initiated.
`8. PREVIOUS ORDERS: Any orders, including protective
`orders, previously entered by this Court or any transferor court,
`shall remain in full effect unless modified by this Court.
`9. MASTER DOCKET FILE: Any pleading or paper shall be filed
`electronically according to this district’s Administrative
`Procedures for Electronic Case Filing, available under the CM/ECF
`section of this Court’s website at wvnd.uscourts.gov. The Clerk of
`the Court will maintain a master docket case under the style “IN
`RE: AFLIBERCEPT PATENT LITIGATION” and the case number will be
`1:24-MD-3103. All papers filed in these actions shall bear the
`case number. When a pleading is intended to be applicable to all
`actions, this shall be indicated by the words, “THIS DOCUMENT
`RELATES TO ALL CASES.” When a pleading is intended to apply to
`fewer than all cases, this Court’s civil action number for each
`individual case to which the document relates shall appear
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`immediately after the words, “THIS DOCUMENT RELATES TO . . .,” and
`shall be filed electronically in each member case to which the
`document applies. For an example of the pleading style, please
`refer to the caption on this order.
`10. FILING: Any pleading or paper filed in any of these
`actions shall be filed electronically with the Clerk of the Court
`and not with the transferor district court.
`a. FILING UNDER SEAL: To file any other document under seal,
`a party must first electronically file a motion for leave to file
`under seal.
`I. If the motion for leave to file under seal does NOT
`need to be sealed itself:
`1. Under the “Motions” category, use the event
`“Leave to File Document.” The filer shall add “UNDER SEAL” to
`docket text and attach the memorandum of law in support of motion
`for leave to file under seal and proposed order.
`2. File the document(s) that need to be sealed as a
`separate docket entry. Use the event “Motion (SEALED)” if the
`document is a motion; if the document(s) is not a motion, use the
`event “Other Document (SEALED – ATTORNEY USE ONLY).”
`II.
`If the motion needs to be sealed itself, the filer
`shall:
`
`1. Under the “Motions” category, use event “To
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`Seal,” attach the memorandum of law in support of the motion for
`leave to file under seal and proposed order.
`2. File the document(s) that need to be sealed as a
`separate docket entry. Use the event “Motion (SEALED)” if the
`document(s) is a motion; if the document(s) is not a motion, use
`the event “Other Document (SEALED – ATTORNEY USE ONLY).”
`11. DOCKETING: When an action that properly belongs as a
`part of this litigation is filed in this district or transferred
`here from another court, the Clerk of this Court shall:
`a. File a copy of this order in the separate file for
`such action, and
`b. Make an appropriate entry on the master docket.
`12. APPEARANCES: Counsel who appeared in a transferor court
`prior to transfer need not enter an additional appearance before
`this Court. Attorneys admitted to practice and in good standing in
`any United States district court are admitted pro hac vice in this
`litigation, and the requirements of Local Rule of General Procedure
`83.02 are waived, provided counsel has complied with Local Rule of
`General Procedure 83.02(a)(2).
`13. HEARINGS: The Court will not generally conduct motion
`hearings. If the Court deems a hearing necessary, it will schedule
`a hearing in due course.
`14. REMAND STIPULATIONS: In the event that a case is
`remanded, counsel shall jointly furnish to the Clerk of the Court
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`a designation, by document number, of the contents of the record
`to be transmitted for remand to the transferor court.
`15. PRESERVATION OF EVIDENCE: All parties and their counsel
`are reminded of their duty to preserve evidence that may be
`relevant to this action. The duty extends to documents, data, and
`tangible things in possession, custody, or control of the parties
`to this action, and any employees, agents, contractors, carriers,
`bailees, or other nonparties who possess materials reasonably
`anticipated to be subject to discovery in these actions.
`“Documents, data, and tangible things” is to be interpreted broadly
`to include writings, records, files, correspondence, reports,
`memoranda, calendars, diaries, minutes, electronic messages, voice
`mails, e-mails, telephone message records or logs, computer and
`network activity logs, hard drives, backup data, removable
`computer storage media such as tapes, discs and cards, printouts,
`document image files, web pages, databases, spreadsheets,
`software, books, ledgers, journals, orders, invoices, bills,
`vouchers,
`checking
`statements,
`worksheets,
`summaries,
`compilations,
`computations,
`charts,
`diagrams,
`graphic
`presentations, drawings, films, charts, digital or chemical
`process photographs, video, phonographic, tape or digital
`recordings or transcripts thereof, drafts, jottings and notes,
`studies or drafts of studies or other similar material. Information
`that serves to identify, locate, or link such material, such as
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`file inventories, file folders, indices, and metadata, is also
`included in this definition. Until the parties reach an agreement
`on a preservation plan or the Court orders otherwise, each party
`shall take reasonable steps to preserve all documents, data, and
`tangible things containing information potentially relevant to the
`subject matter of this litigation. Counsel is under an obligation
`to the Court to exercise all reasonable efforts to identify and
`notify parties and nonparties, including employees of corporate or
`institutional parties.
`16. DISCOVERY: All discovery disputes are automatically
`referred to the Honorable James P. Mazzone, United States
`Magistrate Judge.
`17. FILING OF DISCOVERY REQUESTS: Discovery requests and
`responses are not to be filed with the Clerk nor sent to the
`undersigned, except when specifically directed by the Court.
`Certificates of service of discovery materials shall be filed.
`18. LIAISON COUNSEL: Counsel for the plaintiff and counsel
`for the defendants shall, to the extent they have not already done
`so, confer and seek consensus on one recommendation for the
`position of the plaintiff’s liaison counsel and three
`recommendations for the defendants’ liaison counsel. On or before
`May 10, 2024, the parties should submit the recommendations along
`with each nominee’s resume or curriculum vitae, educational
`background, licensing status, a short list of relevant experience
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`with cases in similar areas, and a certificate of good standing
`from the highest court from the individual’s jurisdiction. These
`recommendations should not be filed with the Clerk of the Court;
`instead
`they
`should
`be
`e-mailed
`to
`shannon_gibson@wvnd.uscourts.gov. At this stage, liaison counsel
`will be responsible for coordinating administrative matters. The
`duties of liaison counsel are enumerated in the MCL. The Court
`will give great weight to the recommendations submitted and
`supporting materials when selecting liaison counsel.
`19. COMMUNICATIONS: Unless otherwise ordered, counsel must
`communicate with the Court in writing, with courtesy copies to all
`counsel. Communications with the Court and submissions that are
`not to be filed with the Clerk may be sent to
`shannon_gibson@wvnd.uscourts.gov.
`The
`communication
`of
`information among and between counsel shall not be deemed a waiver
`of the attorney-client privilege or the protection afforded
`counsel’s work product.
`DATED: April 26, 2024
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`____________________________
`THOMAS S. KLEEH, CHIEF JUDGE
`NORTHERN DISTRICT OF WEST VIRGINIA
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