Case 1:11-cv-00797-RGA Document 138 Filed 05/14/12 Page 1 of 8 PageID #: 898
`Case 1:11—cv—OO797—RGA Document 138 Filed 05/14/12 Page 1 of 8 Page|D #: 898
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 11-cv-00797-RGA
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`FASTVDO LLC,
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`Plaintiff,
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`V-
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`APPLE INC, et al.,
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`Defendants.
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`SCHEDULING ORDER
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`This _ day of May, 2012, the Court having conducted an initial Rule 16(b) scheduling
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`conference pursuant to Local Rule l6.l(b), and the parties having determined after discussion that
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`the matter cannot be resolved at this juncture by settlement, voluntary mediation, or binding
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`arbitration;
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`IT IS ORDERED that:
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`1.
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`Initial Discovery.
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`a.
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`On or before June 6, 2012, the plaintiff shall, for each defendant, specifically
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`identify the accused products‘ and the asserted patent(s) they allegedly infringe, and produce the file
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`history for each asserted patent.
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`b.
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`On or before August 6, 2012, each defendant shall produce to the plaintiff
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`defendant’s core technical documents related to defendant’s accused product(s), including but not
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`limited to operation manuals, product literature, schematics, and specifications.
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`c.
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`On or before August 6, 2012, the parties shall make their initial disclosures
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`pursuant to Federal Rule of Civil Procedure 26(a)(1) and comply with the “Initial Disclosures”
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`requirements in Paragraph 3 of the Delaware Default Standardfor Discovery, Including Discovery of
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`Electronically Stored Information ("ESI”) to the extent that a party has discoverable information in
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`1 For ease of reference, the word “product” encompasses accused methods and systems as well.
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`its possession, custody control, except that the custodians and non-custodial data sources identified
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`by the parties do not need to be listed in order from the most likely to the least likely.
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`d.
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`On or before September 5, 2012, Plaintiff shall produce to each defendant an
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`initial claim chart relating each accused product to the asserted claims each product allegedly
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`infringes by identifying specifically where each element of each asserted claim is found within each
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`accused product and, to the extent that any element is allegedly met by a component provided by a
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`third party supplier to the defendant, identifying the component by manufacturer name and the model
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`number if possible.
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`e.
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`On or before October 5, 2012, each defendant shall produce to the plaintiff its
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`initial invalidity contentions for each asserted claim, as well as the related invalidating references
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`(e.g., publications, manuals, and patents).
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`2.
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`Joinder of Other Parties and Amendment of Pleadings. All motions to join other
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`parties, and to amend or supplement the pleadings, shall be filed on or before August 31, 2012.
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`Defendants may move to amend the pleadings to allege inequitable conduct on or before April 1,
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`2013.
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`3.
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`Discovery.
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`a.
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`Discovery Cut Off. All fact discovery in this case shall be initiated so that it
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`will be completed on or before June 30, 2013.
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`b.
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`Document Production. Document production shall be substantially complete
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`by February 8, 2013.
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`0.
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`Requests for Admission. A maximum of 25 common requests for admission
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`are permitted for each side. Each Defendant Group (a Defendant Group consists of one or more
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`defendants that are related corporate entities) is permitted up to 25 individual requests for admission
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`to Plaintiff, and Plaintiff is permitted up to 25 individual requests for admission to each Defendant
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`Group. Notwithstanding the foregoing, there is no limitation on the number of requests for
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`admission that a document is authentic and/or a business record.
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`d.
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`Interrogatories. Plaintiff may serve a total of 15 joint interrogatories on
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`Defendants collectively. Plaintiff may serve a total of 10 Defendant specific interrogatories per
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`Defendant Group. Defendants may collectively serve 15 joint interrogatories on Plaintiff. Each
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`Defendant Group may individually serve 10 additional Defendant specific interrogatories.
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`e.
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`Limitation on Hours for Fact Deposition Discovery. Plaintiff may take up to
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`35 hours of fact depositions of each defendant or defendant group. Defendants may collectively
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`take up to 70 hours of fact depositions of Plaintiff. Defendants may collectively depose an
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`inventor for 14 hours, but no single Defendant shall be permitted more than 7 hours of deposition
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`time per inventor. Each side may collectively take up to 140 hours of third party depositions.
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`The foregoing limitations do not apply to depositions of experts. The foregoing limitations are
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`without prejudice to the right of Plaintiff or the Defendants to request additional hours from the
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`Court for good cause shown.
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`f.
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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 order,
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`the parties involved in the discovery matter or protective order dispute shall contact the Court’s Case
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`Manager to schedule an in-person conference/argument. Unless otherwise ordered, by no later than
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`forty-eight hours prior to the conference/argument, the party seeking relief shall file with the Court a
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`letter, not to exceed three pages, outlining the issues in dispute and its position on those issues. By no
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`later than twenty-four hours prior to the conference/argument, any party opposing the application for
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`relief may file a letter, not to exceed three pages, outlining that party’s reasons for its opposition.
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`Should any document(s) be filed under seal, a courtesy copy of the sealed document(s) must be
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`provided to the Court within one hour of e-filing the 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 matters
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`procedures set forth in this Order.
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`g.
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`Absent a showing of good cause, discovery shall be limited to a term of 6
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`years before the filing of the complaint, except that discovery related to asserted prior art, standards-
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`setting activities, licensing activities, or the conception and reduction to practice of the inventions
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`claimed in any patent-in-suit shall not be so limited.
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`4.
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`Application to Court for Protective Order. Should counsel find it will be necessary to
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`apply to the Court for a protective order specifying terms and conditions for the disclosure of
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`confidential information, counsel should confer and attempt to reach an agreement on a proposed
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`form of order and submit it to the Court within 30 days from the date of this order. Should counsel be
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`unable to reach an agreement on a proposed form of order, counsel must follow the provisions of
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`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 the
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`Clerk an original and one copy of the papers. A redacted version of any sealed document shall be
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`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., appendices,
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`exhibits, declarations, affidavits etc.). This provision also applies to papers filed under seal.
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`7.
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`Claim Construction Issue Identification. On or before November 5, 2012, the parties
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`shall exchange a list of those claim terrn(s)/phrase(s) that they believe need construction and their
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`proposed claim construction of those term(s)/phrase(s). This document will not be filed with the
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`Court. Subsequent to exchanging that list, the parties will meet and confer to prepare a Joint Claim
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`Construction Chart to be filed no later than November 19, 2012. The Joint Claim Construction
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`Chart, in Word or WordPerfect format, shall be e—mailed simultaneously with filing to
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`Case 1:11-cv-00797-RGA Document 138 Filed 05/14/12 Page 5 of 8 PageID #: 902
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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 support
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`of their respective proposed constructions. A copy of the patent(s) in issue as well as those portions
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`of the intrinsic record relied upon shall be submitted with this Joint Claim Construction Chart. In
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`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 brief,
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`not to exceed 20 pages, on December 17, 2012. The defendants shall serve, but not file, their
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`answering brief, not to exceed 30 pages, on January 21, 2013. The plaintiff shall serve, but not file,
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`its reply brief, not to exceed 20 pages, on February 4, 2013. The defendants shall serve, but not file,
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`its sur-reply brief, not to exceed 10 pages, on February 18, 2013. No later than February 25, 2013,
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`the parties shall file a Joint Claim Construction Brief. The parties shall copy and paste their unfiled
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`briefs 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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`II.
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`A.
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`Agreed-upon Constructions
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`Disputed Constructions
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`[TERM 1]
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`1.
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`2.
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`3.
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`4.
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`Plaintiff’ s Opening Position
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`Defendant’s Answering Position
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`Plaintiffs Reply Position
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`Defendant’s Sur-Reply Position
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`B.
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`[TERM 2]
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`1.
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`2.
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`3.
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`4.
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`Plaintiffs Opening Position
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`Defendant’s Answering Position
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`Plaintiff’ s Reply Position
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`Defendant’s Sur-Reply Position
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`Etc. The parties need not include any general summaries of the law relating to claim construction. If
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`there are any materials that would be submitted in an appendix, the parties shall submit them in a
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`Joint Appendix.
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`9.
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`Hearing on Claim Construction. Beginning at 8:30 a.m. on March 22, 2013, the Court
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`will hear argument on claim construction. Absent prior approval of the Court (which, if it is sought,
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`must be done so by joint letter submission no later than the date on which answering claim
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`construction briefs are due), the parties shall not present testimony at the argument, and the argument
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`shall not 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 subject
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`matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on or before July 19,
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`2013. The supplemental disclosure to contradict or rebut evidence on the same matter identified by
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`another party is due on or before August 19, 2013. Reply expert reports from the party with the
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`initial burden of proof are due on or before September 9, 2013. No other expert reports will be
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`permitted without either the consent of all parties or leave of the Court. Along with the submissions
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`of the expert reports, the parties shall advise of the dates and times of their experts’ availability for
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`deposition. Depositions of experts shall be completed on or before October 18, 2013.
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`b.
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`Objections to Expert Testimony. To the extent any objection to expert testimony is
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`made pursuant to the principles announced in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 5 79
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`(1993), as incorporated in Federal Rule of Evidence 702, it shall be made by motion no later than the
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`deadline for dispositive motions set forth herein, 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 November 29, 2013.
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`No case dispositive motion under Rule 56 may be filed more than ten days before the above date
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`without leave of the Court.
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`12.
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`Applications by Motion. Except as otherwise specified herein, any application to the
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`Court shall be by written motion. Any non-dispositive motion should contain the statement required
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`by Local Rule 7.1.1.
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`13.
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`Pretrial Conference. On March 28, 2014, the Court will hold a Rule l6(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 third
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`business day before the date of the final pretrial conference. Unless otherwise ordered by the Court,
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`the parties shall comply with the timeframes set forth in Local Rule 16.3(d) for the preparation of the
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`proposed joint final pretrial order.
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`14.
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`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 be
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`limited to three in limine requests, unless otherwise permitted by the Court. The in limine request
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`and any response shall contain the authorities relied upon; each in limine request may be supported
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`by a maximum of three pages of argument and may be opposed by a maximum of three pages of
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`argument, and the party making the in limine request may add a maximum of one additional page in
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`reply in support of its request. If more than one party is supporting or opposing an in limine request,
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`such support or opposition shall be combined in a single three page submission (and, if the moving
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`party, a single one page reply). No separate briefing shall be submitted on in limine requests, unless
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`otherwise permitted by the Court.
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`15.
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`Jug; Instructions, Voir Dire, and Special Verdict Forms. Where a case is to be tried to
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`ajury, pursuant to Local Rules 47.1(a)(2) and 51.1, the parties should file (i) proposed Voir dire,
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`(ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict forms no later
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`than 5 p.m. on the third business day before the date of the final pretrial conference. The parties shall
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`submit simultaneously with filing each of the foregoing four documents in Word or WordPerfect
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`format to rga_civil@ded.uscourts. gov.
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`16.
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`Status Conference. On January 10, 2014 beginning at 3:30 p.m., the Court will hold
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`a status conference to discuss trial consolidation and/or the order of trial(s).
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`17.
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`TLMI. This matter is scheduled for a 7-day jury trial against each Defendant beginning
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`at 9:30 a.m. on April 21, 2014, with the subsequent trial days beginning at 9:30 a.m. Until the case is
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`submitted to the jury for deliberations, the jury will be excused each day at 4:30 p.m. The trial will
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`be timed, as counsel will be allocated a total number of hours in which to present their respective
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`cases. The Court will determine before or at the Pretrial Conference the preferred order of the trials.
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`18.
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`ADR Process. This matter is referred to a magistrate judge to explore the possibility
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`of alternative dispute resolution.
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`UNITED STATES DISTRICT JUDGE