Case 1:18-cv-01854-RGA Document 27 Filed 12/04/19 Page 1 of 9 PageID #: 289
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELA WARE
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`GEMAK TRUST,
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`Plaintiff,
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`V.
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`CHURCH & DWIGHT CO., INC.,
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`Defendant.
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`C.A. No. 18-1854-RGA
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`JURY TRIAL DEMANDED
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`[~ SCHEDULING ORDER
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`,r
`This a-1'8 day of December, 2019, the Court having conducted an initial Rule 16(b)
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`scheduling conference pursuant to Local Rule 16.1 (b ), and the parties having determined after
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`discussion that the matter cannot be resolved at this juncture by settlement, voluntary mediation,
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`or binding arbitration;
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`IT IS ORDERED that:
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`1.
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`Rule 26(a)/ Paragraph 3 Initial Disclosures. Unless otherwise agreed to by the
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`parties, the parties shall make their initial disclosures pursuant to Federal Rule of Civil Procedure
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`26(a)(l) within ten (10) days of the date of this Order.
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`The parties shall also make the following disclosures:
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`a.
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`Identification of Accused Products and Asserted Patents. Pursuant to
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`Paragraph 4(a) of the Default Standard, by December 10, 2019,
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`Plaintiff shall specifically identify the accused products and the
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`asserted patents they assert are infringed by Defendant, and produce
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`the file history for each asserted patent.
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`b. Core Technical Documents. Pursuant to Paragraph 4(6) of the Default
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`Standard, Defendant shall produce to Plaintiff, by January 17, 2020,
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`core technical documents related to the accused products, including
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`but not limited to operation manuals, product literature, schematics,
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`and specifications.
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`c. Infringement Contentions. Pursuant to Paragraph 4( c) of the Default
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`Standard, Plaintiff shall produce to Defendant an initial claim chart
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`relating each accused product to the asserted claims each product
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`allegedly infringes by February 10, 2020.
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`d.
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`Invalidity Contentions. Pursuant to Paragraph 4( d) of the Default
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`Discovery Standard, Defendant shall produce to Plaintiff its initial
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`invalidity contentions for each asserted claim, as well as the related
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`invalidating references (e.g. , publications, manuals and patents) by
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`March 11, 2020 .
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`2.
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`Joinder of Other Parties and Amendment of Pleadings. All motions to join
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`other parties, and to amend or supplement the pleadings, shall be filed on or before January 10,
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`2020.
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`,,
`.) .
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`Discovery.
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`a.
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`E-Service. The parties agree that e-mail service shall be used for all
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`purposes.
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`b.
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`Fact Discovery Cut Off. All fact discovery in this case shall be initiated
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`so that it will be completed on or before September 4, 2020.
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`c.
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`Document Production. Document production shall be substantially
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`complete by or before May 1, 2020.
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`d.
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`Requests for Admission. A maximum of 50 requests for admission are
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`permitted for each side, with the exception of requests for admission directed to the
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`authentication of evidence, on which there is no limit.
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`e.
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`Interrogatories. Plaintiff may serve 5 common interrogatories on Church
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`& Dwight and Reckitt Benckiser. 1 Plaintiff may additionally serve up to 20 interrogatories on
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`each defendant. Defendants Church & Dwight and Reckitt Benckiser may serve 5 common
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`interrogatories on Plaintiff. Each defendant may additionally serve up to 20 interrogatories on
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`Plaintiff.
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`f.
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`Depositions.
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`1.
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`Limitation on Hours for Deposition Discovery. Each party in
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`each respective case is limited to a total of 70 hours of taking testimony by deposition upon oral
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`examination. For purposes of clarity, Plaintiff is limited to a total of 70 hours of deposition
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`testimony in each case (i.e. , a maximum of 140 total hours). However, to the extent Plaintiff
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`takes testimony of third-party witnesses, and such testimony may be used in both cases, the time
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`spent associated with such testimony shall apply to Plaintiffs 70-hour limit in each case, and not
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`just the case in which the deposition was noticed or subpoenaed. To the extent either Church &
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`Dwight or Reckitt Benckiser take testimony of third-party witnesses, and the other defendant
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`intends to use such testimony in its own case, the time spent associated with such testimony shall
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`apply to each defendant' s 70-hour limit, and not just the case in which the deposition was
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`1 Reckitt Benckiser is the defendant in C.A. No. 18-1855-RGA, GEMAK Trust v. Reckitt
`Benckiser LLC.
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`3
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`Case 1:18-cv-01854-RGA Document 27 Filed 12/04/19 Page 4 of 9 PageID #: 292
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`noticed or subpoenaed. For the GEMAK Trustees, Gerald and Elizabeth Hinton, Defendants
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`Church & Dwight and Reckitt Benckiser agree to make a good faith effort to attempt to
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`coordinate to take a single joint Rule 30(b)(l) deposition of each trustee, without prejudice to
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`taking a 30(b )( 6) deposition of GEMAK Trust.
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`11.
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`Location of Depositions. Any party or representative ( officer,
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`director, or managing agent) of a party filing a civil action in this district court must ordinarily be
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`required, upon request, to submit to a deposition at a place designated within this district.
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`Exceptions to this general rule may be made by order of the Court or by agreement of the parties.
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`A defendant who becomes a counterclaimant, cross-claimant, or third-party plaintiff shall be
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`considered as having filed an action in this Court for the purpose of this provision.
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`g.
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`Discovery Matters and Disputes Relating to Protective Orders. Should
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`counsel find they are unable to resolve a discovery matter or a dispute relating to a protective
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`order, the parties involved in the discovery matter or protective order dispute shall contact the
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`Court's Case Manager to schedule an in-person conference/argument. Unless otherwise ordered,
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`by no later than forty-eight hours prior to the conference/argument, the party seeking relief shall
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`file with the Court a letter, not to exceed three pages, outlining the issues in dispute and its
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`position on those issues. By no later than twenty-four hours prior to the conference/argument,
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`any party opposing the application for relief may file a letter, not to exceed three pages, outlining
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`that party' s reasons for its opposition. Should any document(s) be filed under seal, a courtesy
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`copy of the sealed document(s) must be provided to the Court within one hour of e-filing the
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`document( s).
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`If a discovery-related motion is filed without leave of the Court, it will be denied without
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`prejudice to the moving party's right to bring the dispute to the Court through the discovery
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`matters procedures set forth in this Order.
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`4.
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`Application to Court for Protective Order. Should counsel find it will be
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`necessary to apply to the Court for a protective order specifying terms and conditions for the
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`disclosure of confidential information, counsel should confer and attempt to reach an agreement
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`on a proposed form of order and submit it to the Court within twenty-one (21) days from the
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`date of this Order. Should counsel be unable to reach an agreement on a proposed form of
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`order, counsel must follow the provisions of Paragraph 3(g) above.
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`Any proposed protective order must include the following paragraph:
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`Other Proceedings. By entering this order and limiting the
`disclosure of information in this case, the Court does not intend to
`preclude another court from finding that information may be
`relevant and subject to disclosure in another case. Any person or
`party subject to this order who becomes subject to a motion to
`disclose another party's information designated as confidential
`pursuant to this order shall promptly notify that party of the motion
`so that the party may have an opportunity to appear and be heard
`on whether that information should be disclosed.
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`5.
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`Papers Filed Under Seal. When filing papers under seal, counsel shall deliver to
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`the Clerk an original and one copy of the papers. A redacted version of any sealed document
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`shall be filed electronically within seven days of the filing of the sealed document.
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`6.
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`Courtesy Copies. The parties shall provide to the Court two courtesy copies of all
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`briefs and one courtesy copy of any other document filed in support of any briefs (i.e.,
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`appendices, exhibits, declarations, affidavits etc.). This provision also applies to papers filed
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`under seal.
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`7.
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`Claim Construction Issue Identification. On or before March 18, 2020, the
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`parties shall exchange a list of those claim term(s)/phrase(s) that they believe need construction
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`and their proposed claim construction of those term(s)/phrase(s). This document will not be filed
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`with the Court. Subsequent to exchanging that list, the parties will meet and confer to prepare a
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`Joint Claim Construction Chart to be filed no later than April 1, 2020. The Joint Claim
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`Construction Chart, in Word format, shall be e-mailed simultaneously with filing to
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`rga civil@ded.uscourts.gov. The parties' Joint Claim Construction Chart should identify for the
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`Court the term(s)/phrase(s) of the claim(s) in issue, and should include each party ' s proposed
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`construction of the disputed claim language with citation(s) only to the intrinsic evidence in
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`support of their respective proposed constructions. A copy of the patent(s) in issue as well as
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`those portions of the intrinsic record relied upon shall be submitted with this Joint Claim
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`Construction Chart. In this joint submission, the parties shall not provide argument.
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`8.
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`Claim Construction Briefing. The Plaintiff shall serve, but not file, its opening
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`brief, not to exceed 20 pages, on April 15, 2020. Defendants Church & Dwight and Reckitt
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`Benckiser shall serve, but not file, their joint answering brief, not to exceed 35 pages, to be
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`allocated among Defendants to address common issues and non-common issues, on May 6,
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`2020. The Plaintiff shall serve, but not file, its reply brief, not to exceed 25 pages, on May 20,
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`2020. Defendants Church & Dwight and Reckitt Benckiser shall serve, but not file , their joint
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`sur-reply brief, not to exceed 10 pages, on June 3, 2020. No later than June 9, 2020, the parties
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`shall file a Joint Claim Construction Brief. The parties shall copy and paste their unfiled briefs
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`into one brief, with their positions on each claim term in sequential order, in substantially the
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`form below.
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`JOINT CLAIM CONSTRUCTION BRIEF
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`I.
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`Agreed-upon Constructions
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`II.
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`Disputed Constructions
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`A.
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`[TERM 1]
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`Case 1:18-cv-01854-RGA Document 27 Filed 12/04/19 Page 7 of 9 PageID #: 295
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`1.
`2.
`3.
`4.
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`Plaintiffs Opening Position
`Defendants' Answering Position
`Plaintiffs Reply Position
`Defendants ' Sur-Reply Position
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`B.
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`[TERM 2]
`Plaintiffs Opening Position
`1.
`2.
`Defendants' Answering Position
`3.
`Plaintiffs Reply Position
`4.
`Defendants' Sur-Reply Position
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`Etc. The parties need not include any general summaries of the law relating to claim
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`construction. If there are any materials that would be submitted in an appendix, the parties shall
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`submit them in a Joint Appendix.
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`9.
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`Hearing on Claim Construction. Beginning at 8:30 a.m. on June 23, 2020, the
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`Court will hear argument on claim construction. The claim construction hearing will be
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`consolidated with the claim construing hearing in related case No . 18-1855-RGA, GEMAK Trust
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`v. Reckitt Benckiser LLC. Absent prior approval of the Court (which, if it is sought, must be done
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`so by joint letter submission no later than the date on which answering claim construction briefs
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`are due), the parties shall not present testimony at the argument, and the argument shall not
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`exceed a total of three hours.
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`10.
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`Disclosure of Expert Testimony.
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`a.
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`Expert Reports. For the party who has the initial burden of proof on the
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`subject matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on or before
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`October 2, 2020. The supplemental disclosure to contradict or rebut evidence on the same matter
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`identified by another party is due on or before November 6, 2020. Reply expert reports from the
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`party with the initial burden of proof are due on or before December 4, 2020. No other expert
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`reports will be permitted without either the consent of all parties or leave of the Court. Along
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`with the submissions of the expert reports, the parties shall advise of the dates and times of their
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`experts' availability for deposition. Depositions of experts shall be completed on or before
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`January 20, 2021.
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`b.
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`Objections to Expert Testimony. To the extent any objection to expert
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`testimony is made pursuant to the principles announced in Daubert v. Merrell Dow Pharm., Inc.,
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`509 U.S. 579 (1993), as incorporated in Federal Rule of Evidence 702, it shall be made by
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`motion no later than February 3, 2021 , unless otherwise ordered by the Court.
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`11.
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`Case Dispositive Motions. All case dispositive motions, an opening brief, and
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`affidavits, if any in support of the motion shall be served and filed on or before February 3,
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`2021. No case dispositive motion under Rule 56 may be filed more than ten days before the
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`above date without leave of the Court. Briefing shall be presented pursuant to the Court' s Local
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`Rules, except that answering briefs shall be filed on or before February 24, 2021 and reply
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`briefs shall be filed on or before March 10, 2021.
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`12.
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`Applications by Motion. Except as otherwise specified herein, any application to
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`the Court shall be by written motion. Any non-dispositive motion should contain the statement
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`required by Local Rule 7 .1.1 .
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`13.
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`Pretrial Conference. On June 11, 2021 , the Court will hold a Rule 16(e) final
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`pretrial conference in Court with counsel beginning at 8:30 a.m. The parties shall file a joint
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`proposed final pretrial order in compliance with Local Rule 16.3(c) no later than 5 p.m. on the
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`third business day before the date of the final pretrial conference. Unless otherwise ordered by
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`the Court, the parties shall comply with the timeframes set forth in Local Rule 16.3(d) for the
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`preparation of the proposed joint final pretrial order.
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`14. Motions in Limine. Motions in limine shall not be separately filed. All in limine
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`requests and responses thereto shall be set forth in the proposed pretrial order. Each party shall
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`Case 1:18-cv-01854-RGA Document 27 Filed 12/04/19 Page 9 of 9 PageID #: 297
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`be limited to three in limine requests, unless otherwise permitted by the Court. The in limine
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`request and any response shall contain the authorities relied upon; each in limine request may be
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`supported by a maximum of three pages of argument and may be opposed by a maximum of
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`three pages of argument, and the party making the in limine request may add a maximum of one
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`additional page in reply in support of its request. If more than one party is supporting or
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`opposing an in limine request, such support or opposition shall be combined in a single three
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`page submission (and, if the moving party, a single one page reply). No separate briefing shall be
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`submitted on in limine requests, unless otherwise permitted by the Court.
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`15.
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`Jury Instructions, Voir Dire, and Special Verdict Forms. Where a case is to be
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`tried to a jury, pursuant to Local Rules 4 7 .1 ( a)(2) and 51.1 , the parties should file (i) proposed
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`voir dire, (ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict
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`forms no later than 5 p.m. on the third business day before the date of the final pretrial
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`conference. The parties shall submit simultaneously with filing each of the foregoing four
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`documents in Word format to rga_civil@ded.uscourts.gov.
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`16.
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`Trial. This matter is scheduled for a 3-5 day trial beginning at 9:30 a.m. on June
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`28, 2021, with the subsequent trial days beginning at 9:30 a.m. Until the case is submitted to the
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`jury for deliberations, the jury will be excused each day at 5 :00 p.m. The trial will be timed, as
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`counsel will be allocated a total number of hours in which to present their respective cases.
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`17.
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`ADR Process. This matter is referred to a magistrate judge to explore the
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`possibility of alternative dispute resolution.
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`UNITED STATES DISTRICT JUDGE
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`9
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