Case 4:19-cv-04133-YGR Document 49 Filed 12/05/19 Page 1 of 12
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`[Counsel listed on signature page]
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`Case Number: 4:19-cv-04133-YGR
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`[PROPOSED] CASE MANAGEMENT
`ORDER
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`)
`EPIC GAMES, INC., a Maryland Corporation,
`)
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`Plaintiff,
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`)
`)
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`v.
`ACCELERATION BAY LLC, a Delaware
`Limited Liability Corporation,
`Defendant.
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`[PROPOSED] CASE MANAGEMENT ORDER
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`Case 4:19-cv-04133-YGR Document 49 Filed 12/05/19 Page 2 of 12
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`I.
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`As directed the Court at the Case Management Conference on December 2, 2019, the
`parties to the above-entitled action jointly submit this PROPOSED CASE MANAGEMENT
`ORDER.
`
`Evidence Preservation
`The parties need not preserve voice or text messages, backup tapes, instant messages,
`voicemail, or the metadata corresponding to a particular document. The parties shall submit a
`separate e-discovery order setting forth areas of agreement and disagreement.
`II.
`Discovery
`A.
`Limits on Discovery
`1.
`Requests for Production of Documents and Things
`The parties agree to no limits on requests for production of documents and things.
`2. Interrogatories
`The parties have agreed to abide by the presumptive limits set forth in the Federal Rule of
`Civil Procedure regarding interrogatories.
`3. Requests for Admissions
`The parties agree that each shall be allowed 25 requests for admission, plus an additional
`25 requests for admission to establish the admissibility of documents.
`Requests for admission directed to document admissibility shall be clearly denoted as
`such and shall be served separately from any request for admission subject to the numerical
`limitations stated above.
`4. Fact Depositions
`The parties agree to the following regarding depositions:
`• 10 fact depositions per side for a total of not more than 70 hours
`• No deposition shall last more than 7 hours
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`Case 4:19-cv-04133-YGR Document 49 Filed 12/05/19 Page 3 of 12
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`• As Ordered at the CMC, the Parties shall, by April 13, 2020, advise the Court
`of the fact depositions each side contemplates taking, and whether either side
`objects to any of those depositions.
`5. Protective Order
`The parties expect that they will be producing confidential information requiring entry of
`a protective order in this action. Any confidential information produced before entry of a
`Protective Order is subject to the Northern District of California model protective order for
`litigation involving patents (pursuant to Patent L.R. 2-2). After meeting and conferring, the
`parties intend to file a stipulated Protective Order by the date shown in § XVII, Exhibit A.
`6. Electronic Discovery
`The parties will be collecting and producing relevant ESI. After meeting and conferring,
`the parties intend to file a stipulated ESI Order by the date shown in § XVII, Exhibit A.
`7. Discovery from Experts
`The Court will set a schedule for opening expert reports, and opposition expert reports
`after the Court issues its claim construction order. The Court will resolve any disputes regarding
`expert reports or depositions at a CMC to be held after the issuance of a claim construction order.
`All expert reports will conform to the Court’s Standing Orders.
`Opening reports shall disclose expert testimony under FRCP 26(a)(2) as to any issue on
`which a party has the burden of proof. Opposition reports must disclose any expert testimony on
`the same issue. No other expert reports will be permitted without either the consent of all parties
`or leave of the Court.
`The parties agree that except for the deposition time limits set forth above, discovery of
`experts is governed by Fed. R. Civ. P. 26(b)(4), except that each party shall bear the cost of its
`own experts, notwithstanding Rule 26(b)(4)(E). The parties further agree that communications
`between experts and counsel and any resulting work product, including, but not limited to, draft
`reports, billing records, declarations, affidavits and notes, will not be discoverable, except to the
`extent that an expert relies on any such materials in forming the expert’s opinions.
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`Case 4:19-cv-04133-YGR Document 49 Filed 12/05/19 Page 4 of 12
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`To the extent any objection to expert testimony is made pursuant to the principles
`announced in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), as incorporated in
`Federal Rule of Evidence 702, it shall be made by motion no later than the deadline for
`dispositive motions, unless otherwise ordered by the Court.
`An expert’s report shall include all demonstratives that expert intends to rely on at trial,
`with the exception of demonstratives that simply reproduce or exceprt documents or deposition
`testimony that is cited in the body of the expert’s report. Failure to so disclose will result in
`preclusion.
`
`8. Service
`The parties agree that, to the extent possible in light of the volume of the submission, all
`court filings, discovery, and documents to be served on opposing counsel, to the extent not
`served through ECF (namely, filings under seal and discovery), will be served via email, or if too
`voluminous, by FTP or other internet file service, on each of the other parties, and such service
`shall constitute proper service under Fed. R. Civ. P. 5(b)(2)(E). The additional three-day period
`for service under Fed. R. Civ. P. 6(d) does not apply.
`9. Privilege Logs/Privileged Information
`Except as necessary to comply with Patent L.R. 3-7 (Advice of Counsel), the parties are
`not required to include on their privilege logs any protected documents that came into existence
`on or after December 28, 2018. Except as necessary to comply with Patent L.R. 3-7, the parties
`are not required to include on their privilege logs any protected documents that reflect
`communications between counsel and their respective client, or work product documents that
`reflect work of counsel, that were created in anticipation of this litigation, or that were created in
`anticipation of or in connection with any other litigation involving any of the Asserted Patents or
`related patents, even if created before the filing date of the complaint.
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`Case 4:19-cv-04133-YGR Document 49 Filed 12/05/19 Page 5 of 12
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`B.
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`Other Discovery Agreements/Disputes
`1. Email
`• The Parties will not seek discovery into non-email electronic communications such as
`voicemail, slack, instant messaging and the like.
`• Acceleration Bay will not seek email discovery from Epic Games relating to infringement
`or damages, except that Acceleration Bay reserves its rights to seek email discovery
`regarding the following two topics:
`o non-privileged, non-work product email communications between Epic and third
`parties regarding Acceleration Bay or the Asserted Patents; and
`o Epic’s internal, non-privileged, non-work product email communications
`regarding Acceleration Bay or the Asserted Patents.
`o Epic reserves its right to oppose such discovery.
`• Epic will not seek email discovery from Acceleration Bay, Boeing and the named
`inventors other than the emails that were produced in previously filed cases, except that
`Epic reserves its rights to seek email discovery regarding the following two topics:
`o non-privileged, non-work product email communications between, on the one
`hand, Acceleration Bay, Boeing or the named inventors, and, on the other hand,
`any third parties, regarding Acceleration Bay or the Asserted Patents; and
`o Acceleration Bay’s, Boeing’s, and the inventors’ internal, non-privileged, non-
`work product email communications regarding Epic or the Asserted Patents.
`o Acceleration Bay, Boeing and the Inventors reserve their rights to oppose such
`discovery.
`• This provision shall apply only to the Parties and the third parties identified in this
`Paragraph.
`2. Damages
`No damages are available prior to the date Acceleration Bay gave Epic actual notice of
`the Asserted Patents.
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`Case 4:19-cv-04133-YGR Document 49 Filed 12/05/19 Page 6 of 12
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`III.
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`Settlement and ADR
`As Ordered at the CMC, the parties shall advise the Court by December 13, 2019 the
`name of the private mediator that they have retained to act as a mediator. The Parties shall
`complete a private mediation by May 29, 2020.
`IV. Narrowing of Issues
`• Initial Narrowing of Claims, Products and References
`• This case, and any future case related to alleged infringement of the Asserted Patents
`by Epic’s past or currently existing products, will be limited to only those claims
`identified in the Complaint, namely: Claim 21 of the ’344 Patent, claim 19 of the ’966
`Patent, claim 25 of the ’634 Patent, claims 6-10 of the ’147 Patent, claims 2 and 6 of
`the ’497 Patent and claims 14-17 of the ’069 Patent (“Asserted Claims”).
`• Acceleration Bay does not accuse any past or currently existing product other than
`Fortnite of infringement.
`• The Parties have filed a stipulated order dismissing all other infringement and
`invalidity claims with prejudice, including an agreement that Epic will not challenge
`the validity of any claims in the Patents-in-Suit other than the Asserted Claims in any
`proceeding, including inter partes review proceedings. The parties agree that this
`stipulated dismissal will not be used to argue in this or any future proceeding that
`other Epic products are non-infringing or non-infringing alternatives, or that claims
`other than the Asserted Claims are valid or infringed.
`In its validity contentions, Epic shall rely on no more than 24 prior art references or
`combinations of references, and not more than 8 references or combinations of
`references per patent, not including background references.
`• Final Elections
`• One month after the later of the close of fact discovery and the issuance of the
`Markman decision, Acceleration Bay shall serve a Final Election of Asserted Claims.
`Acceleration Bay’s Final Election of Asserted Claims shall include no more than a
`
`•
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`Case 4:19-cv-04133-YGR Document 49 Filed 12/05/19 Page 7 of 12
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`V.
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`total of 10 claims. The Parties agreed to defer the issue of whether the Court should
`limit the number of patents the Acceleration may assert.
`• Within 14 days after Acceleration Bay narrows its asserted claims, Epic shall serve a
`Final Election of Asserted Prior Art, which shall identify no more than five asserted
`prior art references or combinations of prior art references per patent, not including
`background references. See id. Background references may not be used as reference
`to show that a claim is anticipated or obvious, but can be used for other purposes, such
`as to argue the state of the art or the understanding of a POSITA.
`Scheduling
`The schedule for this matter is set forth in Exhibit A.
`After the issuance of a Markman Order, the Court will hold a CMC and schedule future
`dates, such as expert discovery, summary judgments and trial.
`VI. Miscellaneous
`The briefing period for summary judgment motions is extended so that a party opposing
`summary judgment shall have four weeks (instead of two) to file its opposition papers, and a
`reply brief shall be due three weeks (instead of one) thereafter.
`
`Dated: 12/4/2019
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`
`
`By: /s/ Michael A. Tomasulo
`David P. Enzminger (SBN: 137065)
`denzminger@winston.com
`Michael A. Tomasulo (SBN: 179389)
`mtomasulo@winston.com
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071-1543
`Telephone:
`(213) 615-1700
`Facsimile:
`(213) 615-1750
`
`Louis L. Campbell (SBN: 221282)
`llcampbell@winston.com
`Matthew R. McCullough (SBN: 301330)
`mrmccullough@winston.com
`WINSTON & STRAWN LLP
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`Case 4:19-cv-04133-YGR Document 49 Filed 12/05/19 Page 8 of 12
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`Dated: 12/4/2019
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`
`
`275 Middlefield Road, Suite 205
`Menlo Park, California 94025-4004
`Telephone:
`(650) 858-6500
`Facsimile:
`(650) 858-6550
`
`Saranya Raghavan
`SRaghavan@winston.com
`WINSTON & STRAWN LLP
`35 W. Wacker Drive
`Chicago, IL 60601
`Telephone: (312) 558-5600
`Facsimile: (312) 558-5700
`
`Attorneys for Plaintiff
`Epic Games, Inc.
`
`By: /s/ Paul J. Andre
`Paul J. Andre (State Bar No. 196585)
`pandre@kramerlevin.com
`Lisa Kobialka (State Bar No. 191404)
`lkobialka@kramerlevin.com
`James Hannah (State Bar No. 237978)
`jhannah@kramerlevin.com
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`
`Aaron M. Frankel (pro hac vice)
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`afrankel@kramerlevin.com
`
`Attorneys for Defendant and Counterclaim-
`Plaintiff Acceleration Bay LLC
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`Case 4:19-cv-04133-YGR Document 49 Filed 12/05/19 Page 9 of 12
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`ATTESTATION
`I hereby attest that I have obtained concurrence of the above noted signatories as
`indicated by the conformed signature (/s/) within this e-filed document.
`
`
`
`
`/s/ Michael A. Tomasulo
`Michael A. Tomasulo (SBN: 179389)
`mtomasulo@winston.com
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071-1543
`Telephone:
`(213) 615-1700
`Facsimile:
`(213) 615-1750
`
`
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`Case 4:19-cv-04133-YGR Document 49 Filed 12/05/19 Page 10 of 12
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`CASE MANAGEMENT ORDER
`The above PROPOSED CASE MANAGEMENT ORDER is approved as the Case
`Management Order for this case and all parties shall comply with its provisions. [In addition, the
`Court makes the further orders stated below:]
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`IT IS SO ORDERED.
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`Dated:
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`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT JUDGE
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`[PROPOSED] CASE MANAGEMENT ORDER
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`Case 4:19-cv-04133-YGR Document 49 Filed 12/05/19 Page 11 of 12
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`Exhibit A - Proposed Case Schedule
`
`Event
`
`Authority
`
`Proposed Date
`
`CMC Statement
`
`Initial Case Management
`Conference
`Proposed Protective Order
`& ESI Order
`Patent L.R. 3-1, 3-2
`disclosures (infringement
`contentions &
`accompanying document
`production)
`Patent L.R. 3-3, 3-4
`disclosures (invalidity
`contentions and
`accompanying document
`production).
`Parties to exchange
`proposed claim terms for
`construction under Patent
`L.R. 4-1
`Parties to exchange
`preliminary claim
`constructions and extrinsic
`evidence under Patent L.R.
`4-2 (21 days after Patent
`L.R. 4-1)
`Acceleration Bay to serve
`damages contentions
`under Patent L.R. 3-8
`Parties to file Joint Claim
`Construction and
`Prehearing Statement
`including citations to
`evidence (intrinsic and/or
`extrinsic)
`
`Court-ordered Date
`D.I. 38
`Court-ordered Date
`D.I. 38
`
`
`Monday November 25, 2019
`
`Monday December 2, 2019
`
`Wednesday, December 18, 2019
`
`14 days after case
`management conference
`(Patent L.R. 3-1, 3-2)
`
`Friday, February 7, 2020
`
`
`45 days after Patent L.R.
`3-1 (Patent L.R. 3-3, 3-4)
`
`Monday, March 23, 2020
`
`
`14 days after the
`invalidity contentions.
`(Patent L.R. 4-1)
`
`21 days after
`identification of terms.
`Patent L.R. 4-2 (21 days
`after Patent L.R. 4-1)
`
`Monday, April 6, 2020
`
`
`Monday, April 27, 2020
`
`
`50 days after Patent L.R.
`3-3 invalidity contentions
`
`Tuesday, May 12, 2020
`
`
`Patent L.R. 4-3 (60 days
`after service of invalidity
`contentions)
`
`Friday, May 22, 2020
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`
`
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`EXHIBIT A - 1
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`CASE NO. 4:19-cv-04133-YGR
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`Case 4:19-cv-04133-YGR Document 49 Filed 12/05/19 Page 12 of 12
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`Event
`
`Authority
`
`Proposed Date
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`30 days after Patent L.R.
`3-8 damages contentions
`
`30 days after Patent L.R.
`4-3 joint claim
`construction statement
`
`45 days after Patent L.R.
`4-3 joint claim
`construction statement
`14 days after Patent L.R.
`4-5(a) opening brief
`
`7 days after Patent L.R.
`4-5(b) responsive brief
`
`Epic to serve responsive
`damages contentions under
`Patent L.R. 3-9
`Deadline to complete
`discovery related to claim
`construction under Patent
`L.R. 4-4
`Acceleration Bay opening
`claim construction brief due
`under Patent L.R. 4-5(a)
`Epic responsive claim
`construction brief due under
`Patent L.R. 4-5(b)
`Acceleration Bay reply
`claim construction brief due
`under Patent L.R. 4-5(c)
`Claim construction tutorial April 2019 Judge Rogers
`Standing Order for
`Patent Cases
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`Thursday, June 11, 2020
`
`
`Monday, June 22, 2020
`
`
`Friday, July 10, 2020
`
`Friday, July 31, 2020 (extended
`by one week)
`
`Friday, August 14, 2020
`(extended by one week)
`
`Friday August 31, 2020, at 1:30
`P.M.
`
`Friday, September 11, 2020
`
`Fact discovery Cut-off
`
`Court conducts Claim
`Construction (Markman)
`hearing
`Post Claim Construction
`Order Case Management
`Conference
`Trial and other dates to be
`set following post claim
`construction order CMC
`Acceleration Bay shall
`serve a Final Election of
`Asserted Claims
`Epic shall serve a Final
`Election of Asserted Prior
`Art
`
`Patent L.R. 4-6
`
`Friday, September 11, 2020, at
`1:30 P.M.
`
`TBD
`
`April 2019 Judge Rogers
`Standing Order for
`Patent Cases
`
`
`
`
`
`
`One month after the latter of the
`Markman decision or the close of
`fact discovery
`Within 14 days after Acceleration
`Bay narrows its asserted claims
`
`[PROPOSED] CASE MANAGEMENT ORDER
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`EXHIBIT A - 2
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`CASE NO. 4:19-cv-04133-YGR
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