Case 2:19-cv-00200-JRG-RSP Document 122 Filed 07/27/20 Page 1 of 7 PageID #: 4166
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`JOINT MOTION TO AMEND DOCKET CONTROL ORDER
`
`Case Nos.
`2:19-cv-00161-JRG-RSP
`2:19-cv-00172-JRG-RSP
`2:19-cv-00200-JRG-RSP
`2:19-cv-00237-JRG-RSP
`
`
`JURY TRIAL DEMANDED
`
`
`Defendant.
`
`GREE, INC.,
`
`
`Plaintiff,
`
`v.
`
`
`
`
`
`
`SUPERCELL OY,
`
`
`Plaintiff GREE, Inc. (“GREE”) and Defendant Supercell Oy (“Supercell”) (collectively,
`
`the “Parties”) respectfully file this Joint Motion to Amend the Docket Control Order in these
`
`proceedings. There is good cause to amend the Docket Control Order and extend the close of Fact
`
`Discovery and Expert Report deadlines by approximately four weeks and the Dispositive Motions
`
`and Motions to Strike Expert Testimony by approximately two weeks. The proposed extensions
`
`do not require modifying the trial date of December 7, 2020 or the pretrial date of November 12,
`
`2020. Under the parties’ proposed amended schedule, the minimum spacing between dispositive
`
`motions briefing and the pretrial conference set forth in this Court’s earlier orders has been
`
`preserved. See Order Granting-in-Part Joint Motion to Amend the Docket Control Order (Dkt.
`
`120), Optis Wireless Tech., LLC v. Apple Inc., No. 2:19-CV-00066-JRG (E.D. Tex. Mar. 20, 2020),
`
`at 2 (J. Gilstrap) (“there should be two weeks between the dispositive motions deadline and the
`
`deadline for responses thereto. There should be at least four weeks between the response to
`
`dispositive motions deadline and the pre-trial conference”).
`
`
`
`Patent Owner Gree, Inc.
`Exhibit 2011 - Page 1 of 13
`
`

`

`Case 2:19-cv-00200-JRG-RSP Document 122 Filed 07/27/20 Page 2 of 7 PageID #: 4167
`
`The deadlines that the parties propose changing are shown in the table below and in the
`
`proposed amended docket control order attached hereto:
`
`Initial Deadline
`
`New Deadline
`
`Event
`
`September 24, 2020 October 12, 2020
`
`*Response to Dispositive Motions (including
`Daubert Motions). Responses to dispositive
`motions that were filed prior to the
`dispositive motion deadline, including Daubert
`Motions, shall be due in accordance with
`Local Rule CV-7(e), not to exceed the
`deadline as set forth in this Docket Control
`Order. Motions for Summary Judgment
`shall comply with Local Rule CV-56.
`September 10, 2020 September 28, 2020 *File Motions to Strike Expert Testimony
`(including Daubert Motions).
`
`No motion to strike expert testimony
`(including a Daubert motion) may be filed
`after this date without leave of the Court.
`
`September 10, 2020
`
`
`September 28, 2020
`
`*File Dispositive Motions
`
`No dispositive motion may be filed after
`this date without leave of the Court.
`
`Motions shall comply with Local Rule CV-56
`and Local Rule CV-7. Motions to extend
`page limits will only be granted in
`exceptional circumstances. Exceptional
`circumstances require more than agreement
`among the parties.
`
`September 3, 2020
`
`
`September 25, 2020 Deadline to Complete Expert Discovery.
`
`August 20, 2020
`
`September 11, 2020 Serve Disclosures for Rebuttal Expert
`Witnesses.
`
`July 30, 2020
`
`August 21, 2020
`
`Serve Disclosures for Expert Witnesses by the
`Party with the Burden of Proof.
`
`- 2 -
`
`Patent Owner Gree, Inc.
`Exhibit 2011 - Page 2 of 13
`
`

`

`Case 2:19-cv-00200-JRG-RSP Document 122 Filed 07/27/20 Page 3 of 7 PageID #: 4168
`
`July 30, 2020
`
`August 20, 2020
`
`Deadline to Complete Fact Discovery and
`File Motions to Compel Discovery.
`
`
`
`As discussed in prior briefing in this and the related litigations, Supercell has noticed
`
`several depositions of GREE’s witnesses in Japan that remain outstanding. See, e.g., GREE, Inc.
`
`v. Supercell Oy, No. 2:19-cv-00200-JRG-RSP, Dkts. 98, 102, 106, 107, 113. However, the
`
`Government of Japan has implemented a travel ban, banning the entry of foreigners who have
`
`visited certain other countries, including the United States, during the last 14 days prior to
`
`attempted entry unless there are “exceptional circumstances.”1 Further, under Japanese law, video
`
`depositions are not permitted, and all depositions must be held at one of the U.S. Embassy or U.S.
`
`Consulate in Japan. At the present time, the U.S. Embassy and Consulate in Japan is not available
`
`for depositions.2
`
`Throughout these litigations and the related litigations the parties have utilized remote
`
`procedures such as videoconference depositions to move the case forward during the COVID-19
`
`crisis. The crisis, however, has introduced complications and the parties are working together to
`
`find solutions to those complications. To that end, the parties have met and conferred, and will
`
`continue to meet and confer to find solutions for the outstanding depositions, and for good cause
`
`as shown respectfully request that the Court enter the proposed amended docket control order
`
`attached hereto.
`
`
`1 https://www.japan.travel/en/coronavirus/ (last accessed July 16, 2020).
`2 https://jp.usembassy.gov/u-s-citizen-services/attorneys/depositions-in-japan/#ava (last accessed July 24, 2020).
`
`- 3 -
`
`Patent Owner Gree, Inc.
`Exhibit 2011 - Page 3 of 13
`
`

`

`Case 2:19-cv-00200-JRG-RSP Document 122 Filed 07/27/20 Page 4 of 7 PageID #: 4169
`
`Dated: July 27, 2020 Respectfully submitted,
`
`
`
`
`/s/ Steven D. Moore
`MELISSA R. SMITH
`(Texas State Bar No. 24001351)
`HARRY L. GILLAM, JR.
`(Texas State Bar No. 07921800)
`GILLAM & SMITH LLP
`303 S. Washington Ave.
`Marshall, Texas 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
`Email: melissa@gillamsmithlaw.com
`Email: gil@gillamsmithlaw.com
`
`
`KILPATRICK TOWNSEND & STOCKTON LLP
`STEVEN D. MOORE (CA Bar No. 290875)
`RISHI GUPTA (CA Bar No. 313079)
`TAYLOR J. PFINGST (CA Bar No. 316516)
`Two Embarcadero Center, Suite 1900
`San Francisco, CA 94111
`Telephone: (415) 576-0200
`Facsimile: (415) 576-0300
`Email: smoore@kilpatricktownsend.com
`Email: rgupta@kilpatricktownsend.com
`Email: tpfingst@kilpatricktownsend.com
`
`NORRIS P. BOOTHE (CA Bar No. 307702)
`1080 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 326-2400
`Facsimile: (650) 326-2422
`Email: nboothe@kilpatricktownsend.com
`
`JOHN C. ALEMANNI (NC Bar No. 22977)
`TAYLOR HIGGINS LUDLAM (NC Bar No.
`42377)
`KASEY E. KOBALLA (NC Bar No. 53766)
`4208 Six Forks Road
`Raleigh, NC 27609
`Telephone: (919) 420-1700
`Facsimile: (919) 420-1800
`Email: jalemanni@kilpatricktownsend.com
`Email: taludlam@kilpatricktownsend.com
`Email: kkoballa@kilpatricktownsend.com
`
`MICHAEL T. MORLOCK (GA Bar No. 647460)
`
`- 4 -
`
`Patent Owner Gree, Inc.
`Exhibit 2011 - Page 4 of 13
`
`

`

`Case 2:19-cv-00200-JRG-RSP Document 122 Filed 07/27/20 Page 5 of 7 PageID #: 4170
`
`
`
`
`
`1100 Peachtree Street, NE
`Suite 2800
`Atlanta, Georgia 30309
`Telephone: (404) 815-6500
`Facsimile: (404) 815-6555
`Email: mmorlock@kilpatricktownsend.com
`
`ALTON L. ABSHER III (NC Bar No. 36579)
`ANDREW W. RINEHART (NC Bar No. 46356)
`1001 West Fourth Street
`Winston-Salem, NC 27101
`Telephone: (336) 607-7300
`Facsimile: (336) 607-7500
`Email: aabsher@kilpatricktownsend.com
`Email: arinehart@kilpatricktownsend.com
`
`ATTORNEYS FOR PLAINTIFF
`GREE, INC.
`
`
`
`
`/s/ Jessica M. Kaempf
`Geoffrey Robert Miller
`(Texas State Bar No. 24094847)
`FENWICK & WEST LLP
`902 Broadway, Suite 14
`New York, NY 10021
`Telephone: 650.988.8500
`Facsimile: 650.938.5200
`Email: gmiller@fenwick.com
`
`Michael J. Sacksteder (Admitted E.D. Texas)
`Bryan A. Kohm (Admitted E.D. Texas)
`FENWICK & WEST LLP
`555 California Street
`San Francisco, California 94104
`Telephone: 415.875.2300
`Facsimile: 415.281.1350
`Email: msacksteder@fenwick.com
`bkohm@fenwick.com
`
`Jessica M. Kaempf (Admitted E.D. Texas)
`FENWICK & WEST LLP
`1191 Second Ave., 10th Floor
`Seattle, Washington 98101
`Telephone: 206.389.4510
`Facsimile: 206.389.4511
`
`- 5 -
`
`Patent Owner Gree, Inc.
`Exhibit 2011 - Page 5 of 13
`
`

`

`Case 2:19-cv-00200-JRG-RSP Document 122 Filed 07/27/20 Page 6 of 7 PageID #: 4171
`
`Email: jware@fenwick.com
`jkaempf@fenwick.com
`
`Deron R Dacus
`Shannon Marie Dacus
`The Dacus Firm, PC
`821 ESE Loop 323
`Suite 430
`Tyler, TX 75701
`Telephone:903.705.1117
`Facsimile: 903.581.2543
`ddacus@dacusfirm.com
`sdacus@dacusfirm.com
`
`
`ATTORNEYS FOR DEFENDANT
`SUPERCELL OY
`
`
`
`
`
`
`
`- 6 -
`
`Patent Owner Gree, Inc.
`Exhibit 2011 - Page 6 of 13
`
`

`

`Case 2:19-cv-00200-JRG-RSP Document 122 Filed 07/27/20 Page 7 of 7 PageID #: 4172
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that counsel of record who are deemed to have consented to electronic
`
`service are being served July 27, 2020, with a copy of this document via the Court’s CM/ECF
`
`system per Local Rule CV-5(a)(3).
`
`
`
`/s/ Steven D. Moore
`Steven D. Moore
`
`
`
`
`
`
`
`
`
`- 7 -
`
`Patent Owner Gree, Inc.
`Exhibit 2011 - Page 7 of 13
`
`

`

`Case 2:19-cv-00200-JRG-RSP Document 122-1 Filed 07/27/20 Page 1 of 6 PageID #: 4173
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`GREE, INC.,
`
`
`
`
`
`
`
`
`v.
`
`
`SUPERCELL OY,
`
`
`Plaintiff,
`
`Defendant.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`
`Case Nos.
`2:19-cv-00161-JRG-RSP
`2:19-cv-00172-JRG-RSP
`2:19-cv-00200-JRG-RSP
`2:19-cv-00237-JRG-RSP
`
`JURY TRIAL DEMANDED
`
`
`
`[PROPOSED] DOCKET CONTROL ORDER
`
`It is hereby ORDERED that the following schedule of deadlines are in effect until
`
`further order of this Court:
`
`Initial Deadline
`
`New Deadline
`
`Event
`
`December 7, 2020
`
`November 9, 2020
`
`November 12, 2020
`
`November 5, 2020
`
`
`
`
`
`
`
`
`
`*Jury Selection -9:00 a.m. in Marshall,
`Texas.
`*Notify Deputy Clerk in Charge regarding the
`date and time by which juror questionnaires
`shall be presented to accompany by jury
`summons if the Parties desire to avail
`themselves the benefit of using juror
`questionnaires.1
`*Pretrial Conference - 9:00 a.m. in
`Marshall, Texas before Judge Roy Payne.
`
`*Notify Court of Agreements Reached During
`Meet and Confer.
`
`The parties are ordered to meet and confer
`on any outstanding objections or motions in
`
`
`1 The Parties are referred to the Court's Standing Order Regarding Use of Juror
`Questionnaires in Advance of Voir Dire.
`
`
`
`- 1 -
`
`Patent Owner Gree, Inc.
`Exhibit 2011 - Page 8 of 13
`
`

`

`Case 2:19-cv-00200-JRG-RSP Document 122-1 Filed 07/27/20 Page 2 of 6 PageID #: 4174
`
`
`November 5, 2020
`
`October 29, 2020
`
`October 23, 2020
`
`October 23, 2020
`
`October 15, 2020
`
`October 1, 2020
`
`
`
`
`
`
`
`
`
`
`
`
`
`September 24, 2020 October 12, 2020
`
`limine. The parties shall advise the Court of
`any agreements reached no later than 1:00
`p.m. three (3) business days before the
`pretrial conference.
`
`*File Joint Pretrial Order, Joint Proposed
`Jury Instructions, Joint Proposed Verdict
`Form, Responses to Motions in Limine,
`Updated Exhibit Lists, Updated Witness
`Lists, and Updated Deposition Designations.
`
`*File Notice of Request for Daily Transcript
`or Real Time Reporting.
`
`If a daily transcript or real time reporting of
`court proceedings is requested for trial, the
`party or parties making said request shall file
`a notice with the Court and e-mail the Court
`Reporter, Shelly Holmes, at
`shelly_holmes@txed.uscourts.gov.
`
`File Motions in Limine
`
`The parties shall limit their motions in limine
`to issues that if improperly introduced at trial
`would be so prejudicial that the Court could
`not alleviate the prejudice by giving
`appropriate instructions to the jury.
`
`Serve Objections to Rebuttal Pretrial
`Disclosures.
`
`Serve Objections to Pretrial Disclosures; and
`Serve Rebuttal Pretrial Disclosures.
`
`Serve Pretrial Disclosures (Witness List,
`Deposition Designations, and Exhibit List) by
`the Party with the Burden of Proof.
`
`*Response to Dispositive Motions (including
`Daubert Motions). Responses to dispositive
`motions that were filed prior to the
`dispositive motion deadline, including Daubert
`Motions, shall be due in accordance with
`Local Rule CV-7(e), not to exceed the
`deadline as set forth in this Docket Control
`
`
`
`- 2 -
`
`Patent Owner Gree, Inc.
`Exhibit 2011 - Page 9 of 13
`
`

`

`Case 2:19-cv-00200-JRG-RSP Document 122-1 Filed 07/27/20 Page 3 of 6 PageID #: 4175
`
`
`Order.2 Motions for Summary Judgment
`shall comply with Local Rule CV-56.
`
`September 10, 2020 September 28, 2020 *File Motions to Strike Expert Testimony
`(including Daubert Motions).
`
`No motion to strike expert testimony
`(including a Daubert motion) may be filed
`after this date without leave of the Court.
`
`September 10, 2020
`
`
`September 28, 2020
`
`*File Dispositive Motions
`
`No dispositive motion may be filed after
`this date without leave of the Court.
`
`Motions shall comply with Local Rule CV-56
`and Local Rule CV-7. Motions to extend
`page limits will only be granted in
`exceptional circumstances. Exceptional
`circumstances require more than agreement
`among the parties.
`
`September 3, 2020
`
`
`September 25, 2020 Deadline to Complete Expert Discovery.
`
`August 20, 2020
`
`September 11, 2020 Serve Disclosures for Rebuttal Expert
`Witnesses.
`
`July 30, 2020
`
`August 21, 2020
`
`Serve Disclosures for Expert Witnesses by the
`Party with the Burden of Proof.
`
`
`2 The parties are directed to Local Rule CV-7(d), which provides in part that “[a] party's
`failure to oppose a motion in the manner prescribed herein creates a presumption that the party
`does not controvert the facts set out by movant and has no evidence to offer in opposition to
`the motion.” If the deadline under Local Rule CV 7(e) exceeds the deadline for Response to
`Dispositive Motions, the deadline for Response to Dispositive Motions controls.
`
`
`
`- 3 -
`
`Patent Owner Gree, Inc.
`Exhibit 2011 - Page 10 of 13
`
`

`

`Case 2:19-cv-00200-JRG-RSP Document 122-1 Filed 07/27/20 Page 4 of 6 PageID #: 4176
`
`
`July 30, 2020
`
`August 20, 20203
`
`Deadline to Complete Fact Discovery and
`File Motions to Compel Discovery.4
`
`
`(*) indicates a deadline that cannot be changed without showing good cause. Good cause is
`not shown merely by indicating that the parties agree that the deadline should be changed.
`
`
`ADDITIONAL REQUIREMENTS
`
`Mediation: While certain cases may benefit from mediation, such may not be appropriate
`for every case. The Court finds that the Parties are best suited to evaluate whether mediation will
`benefit the case after the issuance of the Court's claim construction order. Accordingly, the Court
`ORDERS the Parties to file a Joint Notice indicating whether the case should be referred for
`mediation within fourteen days of the issuance of the Court's claim construction order. As a part
`of such Joint Notice, the Parties should indicate whether they have a mutually agreeable mediator
`for the Court to consider. If the Parties disagree about whether mediation is appropriate the Parties
`should set forth a brief statement of their competing positions in the Joint Notice.
`
`Summary Judgment Motions, Motions to Strike Expert Testimony, and Daubert
`Motions: For each motion, the moving party shall provide the Court with two (2) hard copies
`of the completed briefing (opening motion, response, reply, and if applicable, sur-reply),
`excluding exhibits, in D-three-ring binders, appropriately tabbed. All documents shall be
`single-sided and must include the CM/ECF header. These copies shall be delivered to the
`Court within three (3) business days after briefing has completed. For expert-related motions,
`complete digital copies of the relevant expert report(s) and accompanying exhibits shall
`submitted on a single flash drive to the Court. Complete digital copies of the expert report(s)
`shall be delivered to the Court no later than the dispositive motion deadline.
`
`
`
`
`3 The parties agree that, after July 30, 2020, neither party will serve new written
`discovery or deposition notices in the -161, -172, -200 or -237 proceedings to each other or to
`third parties, unless warranted based on information learned after July 30, 2020, from written
`discovery or completing depositions that have already been served or noticed by one of the
`parties in those cases or good cause otherwise exists. The parties further agree that nothing
`herein precludes the parties from receiving responses to discovery that has already been
`served.
`
`4 To date, Supercell has not been able to take depositions of GREE’s witnesses due to
`Japanese governmental restrictions that both prevent travel to Japan and prevent video
`depositions. Supercell thus believes that extension of the case schedule is needed at least in
`order to accommodate those depositions, and Supercell reserves the right to seek additional
`extensions as needed.
`
`
`
`- 4 -
`
`Patent Owner Gree, Inc.
`Exhibit 2011 - Page 11 of 13
`
`

`

`Case 2:19-cv-00200-JRG-RSP Document 122-1 Filed 07/27/20 Page 5 of 6 PageID #: 4177
`
`
`Indefiniteness : In lieu of early motions for summary judgment, the parties are directed
`to include any arguments related to the issue of indefiniteness in their Markman briefing,
`subject to the local rules' normal page limits.
`
`
`
`Motions for Continuance: The following excuses will not warrant a continuance
`nor justify a failure to comply with the discovery deadline:
`
`
`
`
`
`
`
`
`
`(a) The fact that there are motions for summary judgment or motions to dismiss
`pending;
`
`(b) The fact that one or more of the attorneys is set for trial in another court on the same
`day, unless the other setting was made prior to the date of this order or was made as
`a special provision for the parties in the other case;
`
`(c) The failure to complete discovery prior to trial, unless the parties can demonstrate
`that it was impossible to complete discovery despite their good faith effort to do so.
`
`Amendments to the Docket Control Order (“DCO”): Any motion to alter any date
`on the DCO shall take the form of a motion to amend the DCO. The motion to amend the
`DCO shall include a proposed order that lists all of the remaining dates in one column (as
`above) and the proposed changes to each date in an additional adjacent column (if there is
`no change for a date the proposed date column should remain blank or indicate that it is
`unchanged). In other words, the DCO in the proposed order should be complete such that
`one can clearly see all the remaining deadlines and the changes, if any, to those deadlines, rather
`than needing to also refer to an earlier version of the DCO.
`
`Proposed DCO : The Parties’ Proposed DCO should also follow the format
`described above under “Amendments to the Docket Control Order (‘DCO’).”
`
`- 5 -
`
`Patent Owner Gree, Inc.
`Exhibit 2011 - Page 12 of 13
`
`

`

`Case 2:19-cv-00200-JRG-RSP Document 122-1 Filed 07/27/20 Page 6 of 6 PageID #: 4178
`
`
`CERTIFICATE OF SERVICE
`
`
`I hereby certify that on July 27, 2020, all counsel of record who have consented to
`
`
`
`electronic service are being served with a copy of this document via the Court’s CM/ECF system
`
`pursuant to Local Rule CV-5(a)(3):
`
`
`
`
`
`/s/ Steven D. Moore
`Steven D. Moore
`
`
`
`
`
`
`
`73667873V.1
`
`
`
`- 6 -
`
`Patent Owner Gree, Inc.
`Exhibit 2011 - Page 13 of 13
`
`