The Regents of the University of California et al v. Affymetrix, Inc. et al

Filing 105

(1) Order Granting Joint Motion to Amend Schedule and [Doc. No. 103 ] (2) Amended Scheduling Order. Final Pretrial Conference set for 5/3/2019 at 10:00 AM before Judge Marilyn L. Huff. Status Conference set for 5/13/2019 at 10:30 AM before Judge Marilyn L. Huff. Memorandum of Contentions of Fact and Law due by 3/28/2019. Proposed Pretrial Order due by 4/26/2019. Signed by Judge Marilyn L. Huff on 2/23/2018. (jjg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 THE REGENTS OF THE UNIVERSITY OF CALIFORNIA; and BECTON, DICKINSON and COMPANY, 13 14 15 16 17 Plaintiffs, Case No.: 17-cv-01394-H-NLS (1) ORDER GRANTING JOINT MOTION TO AMEND SCHEDULE; AND v. [Doc. No. 103.] AFFYMETRIX, INC.; and LIFE TECHNOLOGIES CORP., Defendants. (2) AMENDED SCHEDULING ORDER 18 19 On July 10, 2017, Plaintiffs the Regents of the University of California and Becton, 20 Dickinson and Company filed a complaint for patent infringement against Defendants 21 Affymetrix, Inc. and Life Technologies Corp., alleging infringement of U.S. Patent No. 22 9,085,799, U.S. Patent No. 8,110,673, and U.S. Patent No. 8,835,113 (the “Original 23 Patents”). (Doc. No. 1, Compl.) On September 8, 2017, Defendants filed an answer to 24 Plaintiffs’ complaint. (Doc. No. 37.) 25 On October 6, 2017, the Court issued a scheduling order. (Doc. No. 55.) On 26 November 20, 2017, the Court denied Plaintiff Becton, Dickinson’s motion for a 27 preliminary injunction without prejudice. (Doc No. 69.) In the order, the Court invited the 28 parties to submit a joint proposal to advance the claim construction hearing and related 1 17-cv-01394-H-NLS 1 dates in the action. (Id. at 12.) On November 30, 2017, the Court issued an amended 2 scheduling order. (Doc. No. 76.) 3 On February 7, 2018, the Court granted the parties’ joint motion for leave for 4 Plaintiff to file a first amended complaint and to modify the scheduling order. (Doc. No. 5 100.) In the order, the Court continued the trial date to Tuesday, May 14, 2019 and ordered 6 the parties to submit a proposed amended schedule by February 20, 2018. (Id.) On 7 February 9, 2018, Plaintiffs filed an amended complaint: (1) adding Sirigen, Inc. and 8 Sirigen II Limited as additional Plaintiffs and adding claims that Defendants’ products 9 infringe four Sirigen patents, U.S. Patent No. 9,547,008, U.S. Patent No. 9,139,869, U.S. 10 Patent No. 8,575,303, and U.S. Patent No. 8,455,613 (the “Structure Patents”); (2) adding 11 infringement allegations against Defendants’ Super Bright 780 and Super Bright Staining 12 Buffer products as additional accused products; and (3) adding allegations of induced 13 infringement against Defendants. (Doc. No. 101.) 14 On February 20, 2018, the parties filed a joint motion to amend the scheduling order. 15 (Doc. No. 103.) For good cause shown, the Court grants the joint motion, and the Court 16 issues the following amended scheduling order: 1 17 1. Prior to the filing of any discovery related motion, the parties must meet and 18 confer regarding the discovery dispute, and then provide the district judge with a summary 19 of the discovery dispute through a joint phone call or through a one-page joint filing. 20 2. Completion of Claim Construction Discovery for the Original Patents. On 21 February 9, 2018, the parties must complete all discovery, including depositions of any 22 percipient or expert witnesses, that they intend to use in the Claim Construction Hearing 23 for the ’799 patent, the ’673 patent, and the ’113 patent. Federal Rule of Civil Procedure 24 30 applies to depositions taken pursuant to Patent Local Rule 4.3 except as to experts. An 25 26 27 28 1 The parties should specifically note that the Court’s scheduling order sets forth disclosure requirements for damages contentions that are based on the requirements set forth in the Northern District of California Patent Local Rules 3-1(h), 3-2(f)–(j), 3-4(c)–(e), 3-8, and 3-9. 2 17-cv-01394-H-NLS 1 expert witness identified in a party’s Joint Hearing Statement pursuant to Patent Local Rule 2 4.2(d) may be deposed on claim construction issues. The identification of an expert witness 3 in the Joint Hearing Statement may be deemed good cause for a further deposition on all 4 substantive issues. 5 Amended and Final Invalidity Contentions for the Original Patents. 2 3. 6 a. As a matter of right, a party opposing a claim of patent infringement 7 may serve “Amended Invalidity Contentions” for the ’799 patent, the ’673 patent, and the 8 ’113 patent no later than the Completion of Claim Construction Discovery, February 21, 9 2018. 10 Thereafter, absent undue prejudice to the opposing party, a party opposing infringement may only amend its invalidity contentions: 11 1. if a party claiming patent infringement has served Amended 12 Infringement Contentions, and the party opposing a claim of patent infringement believes 13 in good faith that the Amended Infringement Contentions so require; 14 2. if, not later than fifty (50) days after service of the Court’s Claim 15 Construction Ruling, the party opposing infringement believes in good faith that 16 amendment is necessitated by a claim construction that differs from that proposed by such 17 party; or 18 3. 19 4. 20 upon a timely motion showing good cause. Claim Construction Briefs for the Original Patents. a. On February 23, 2018, the parties will simultaneously file and serve 21 opening briefs and any evidence supporting their claim constructions for the ’799 patent, 22 the ’673 patent, and the ’113 patent. 23 b. On March 9, 2018, the parties will simultaneously file and serve briefs 24 responsive to the opposing party’s opening brief and any evidence directly rebutting the 25 supporting evidence contained in the opposing party’s opening brief for the ’799 patent, 26 27 28 2 This rule does not relieve any party from its obligations under Federal Rule of Civil Procedure 26 to timely supplement disclosures and discovery responses. 3 17-cv-01394-H-NLS 1 2 the ’673 patent, and the ’113 patent. 5. Claim Construction Hearing for the Original Patents. On Friday, March 3 23, 2018, at 10:00 a.m., the Honorable Marilyn L. Huff will conduct a Claim Construction 4 Hearing for the ’799 patent, the ’673 patent, and the ’113 patent in San Diego, California. 5 6. Disclosure of Asserted Claims and Infringement Contentions for the 6 Structure Patents. On or before March 5, 2018, Plaintiffs must serve on Defendants a 7 “Disclosure of Asserted Claims and Infringement Contentions” for the ’008 patent, the’869 8 patent, the ’303 patent, and the ’613 patent. The Disclosure of Asserted Claims and 9 Infringement Contentions must contain the following information: 10 11 12 a. Each claim of each patent in the suit that is allegedly infringed by b. Separately for each asserted claim, each of Defendants’ accused Defendants; 13 apparatus, product, device, process, method, act, or other instrumentality (“Accused 14 Instrumentality”) of which the party is aware. This identification must be as specific as 15 possible. Each product, device and apparatus must be identified by name or model number, 16 if known. Each method or process must be identified by name, if known, or by any product, 17 device, or apparatus which, when used, allegedly results in the practice of the claimed 18 method or process; 19 c. A chart identifying specifically where each element of each asserted 20 claim is found within each Accused Instrumentality, including for each element that such 21 party contends is governed by 35 U.S.C. § 112(6), the identity of the structure(s), act(s), or 22 material(s) in the Accused Instrumentality that performs the claimed function; 23 d. For each claim which is alleged to have been indirectly infringed, an 24 identification of any direct infringement and a description of the acts of the alleged indirect 25 infringer that contribute to or are inducing that direct infringement. Insofar as alleged 26 direct infringement is based on joint acts of multiple parties, the role of each such party in 27 the direct infringement must be described; 28 4 17-cv-01394-H-NLS 1 2 e. present and/or present under the doctrine of equivalents in the Accused Instrumentality; 3 4 Whether each element of each asserted claim is claimed to be literally f. For any patent that claims priority to an earlier application, the priority date to which each asserted claim allegedly is entitled; 5 g. If a party claiming patent infringement asserts or wishes to preserve the 6 right to rely, for any purpose, on the assertion that its own apparatus, product, device, 7 process, method, act, or other instrumentality practices the claimed invention, the party 8 must identify, separately for each asserted claim, each such apparatus, product, device, 9 process, method, act, or other instrumentality that incorporates or reflects that particular 10 claim; 11 12 h. basis for such allegation; and 13 14 15 If a party claiming patent infringement alleges willful infringement, the i. Identify the timing of the point of first infringement, the start of claimed damages, and the end of claimed damages. 7. Document Production Accompanying Disclosure. With the Disclosure of 16 Asserted Claims and Infringement Contentions, the party claiming patent infringement 17 must produce to Defendants or make available for inspection and copying, the following 18 documents in the possession, custody or control of that party: 19 a. Documents (for example, contracts, purchase orders, invoices, 20 advertisements, marketing materials, offer letters, beta site testing agreements, and third 21 party or joint development agreements) sufficient to evidence each discussion with, 22 disclosure to, or other manner of providing to a third party, or sale of or offer to sell, the 23 claimed invention prior to the date of application for the patent in suit. A party’s production 24 of a document as required within these rules does not constitute an admission that such 25 document evidences or is prior art under 35 U.S.C. § 102; 26 27 b. All documents evidencing the conception, reduction to practice, design, and development of each claimed invention, that were created on or before the date of 28 5 17-cv-01394-H-NLS 1 application for the patent in suit or the priority date identified pursuant to Patent Local Rule 2 3.1(f), whichever is earlier; 3 c. 4 which a claim for priority is made under Patent Local Rule 3.1(f); 5 6 A copy of the file history for each patent in suit and each application to d. Documents sufficient to evidence ownership of the patent rights by the party asserting patent infringement; 7 e. If a party identifies instrumentalities pursuant to Patent Local Rule 8 3.1(g), documents sufficient to show the operation of any aspects or elements of such 9 instrumentalities the patent claimant relies upon as embodying any asserted claims; 10 f. 11 patent-in-suit; 12 g. All agreements, including licenses, transferring an interest in any All agreements that the party asserting infringement contends are 13 comparable to a license that would result from a hypothetical reasonable royalty 14 negotiation; 15 16 h. All agreements that otherwise may be used to support the party asserting infringement’s damages case; 17 i. If a party identifies instrumentalities pursuant to Patent Local Rule 18 3.1(g), documents sufficient to show marking of such embodying accused instrumentalities 19 and if it wants to preserve the right to recover lost profits based on such products, sales, 20 revenues, costs and profits of such embodying accused instrumentalities; and 21 j. All documents comprising or reflecting a F/RAND commitment or 22 agreement with respect to the asserted patent(s). The producing party must separately 23 identify by production number which documents correspond to each category. If the 24 documents identified above are not in the possession, custody or control of the party 25 charged with production, that party must use its best efforts to obtain all responsive 26 documents and make a timely disclosure. 27 28 8. Invalidity Contentions for the Structure Patents. On or before May 4, 2018, Defendants must serve on all parties their “Invalidity Contentions” for the ’008 6 17-cv-01394-H-NLS 1 patent, the’869 patent, the ’303 patent, and the ’613 patent, which must contain the 2 following information: 3 a. The identity of each item of prior art that allegedly anticipates each 4 asserted claim or renders it obvious. 5 knowledge or use of the invention in this country prior to the date of invention of the patent. 6 Each prior art patent must be identified by its number, country of origin, and date of issue. 7 Each prior art publication must be identified by its title, date of publication, and where 8 feasible, author and publisher. Prior art under 35 U.S.C. § 102(b) must be identified by 9 specifying the item offered for sale or publicly used or known, the date the offer or use 10 took place or the information became known, and the identity of the person or entity that 11 made the use or that made and received the offer, or the person or entity that made the 12 information known or to whom it was made known. Prior art under 35 U.S.C. § 102(f) 13 must be identified by providing the name of the person(s) from whom and the 14 circumstances under which the invention or any part of it was derived. Prior art under 35 15 U.S.C. § 102(g) must be identified by providing the identities of the person(s) or entities 16 involved in and the circumstances surrounding the making of the invention before the 17 patent applicant(s); 18 b. This includes information about any alleged Whether each item of prior art anticipates each asserted claim or renders 19 it obvious. If obviousness is alleged, an explanation of why the prior art renders the 20 asserted claim obvious, including an identification of any combinations of prior art 21 showing obviousness; 22 c. A chart identifying where specifically in each alleged item of prior art 23 each element of each asserted claim is found, including for each element that such party 24 contends is governed by 35 U.S.C. § 112(6), the identity of the structure(s), act(s), or 25 material(s) in each item of prior art that performs the claimed function; 26 27 d. Any grounds of invalidity based on indefiniteness under 35 U.S.C. § 112(2) of any of the asserted claims; and 28 7 17-cv-01394-H-NLS 1 2 e. Any grounds of invalidity based on lack of written description, lack of enabling disclosure, or failure to describe the best mode under 35 U.S.C. § 112(1). 3 9. Document Production Accompanying Invalidity Contentions. With the 4 Invalidity Contentions, the party opposing a claim of patent infringement must produce or 5 make available for inspection and copying: 6 a. Source code, specifications, schematics, flow charts, artwork, formulas, 7 or other documentation sufficient to show the operation of any aspects or elements of any 8 Accused Instrumentality identified by the patent claimant in its Patent Local Rule 3.1(c) 9 chart; 10 b. A copy of each item of prior art identified pursuant to Patent Local Rule 11 3.3(a) that does not appear in the file history of the patent(s) at issue. To the extent any 12 such item is not in English, the party opposing infringement must produce an English 13 translation of the portion(s) relied upon; 14 c. All agreements that the party opposing infringement contends are 15 comparable to a license that would result from a hypothetical reasonable royalty 16 negotiation; 17 d. Documents sufficient to show the sales, revenue, cost, and profits for 18 accused instrumentalities identified pursuant to Patent Local Rule 3.1(b) for any period of 19 alleged infringement; and 20 21 22 23 24 e. All agreements that may be used to support the party denying infringement’s damages case. 10. Exchange of Preliminary Claim Construction and Extrinsic Evidence for the Structure Patents. a. On or before May 18, 2018, the parties will simultaneously exchange a 25 preliminary proposed construction of each claim term, phrase, or clause that the parties 26 have identified for claim construction purposes for the ’008 patent, the’869 patent, the ’303 27 patent, and the ’613 patent. Each Preliminary Claim Construction will also, for each 28 element that any party contends is governed by 35 U.S.C. § 112(6), identify the 8 17-cv-01394-H-NLS 1 structure(s), act(s), or material(s) described in the specification corresponding to that 2 element. 3 b. Simultaneously with exchange of the Preliminary Claim Constructions, 4 the parties must also provide a preliminary identification of extrinsic evidence, including, 5 without limitation, dictionary definitions, citations to learned treatises and prior art, and 6 testimony of percipient and expert witnesses they contend support their respective claim 7 constructions. The parties must identify each such item of extrinsic evidence by production 8 number or produce a copy of any such item not previously produced. With respect to any 9 such witness, percipient or expert, the parties must also provide a brief description of the 10 11 substance of that witness’s proposed testimony. c. On or before June 1, 2018, the parties will simultaneously exchange 12 “Responsive Claim Constructions” identifying whether the responding party agrees with 13 the other party’s proposed construction for the ’008 patent, the’869 patent, the ’303 patent, 14 and the ’613 patent, or identifying an alternate construction in the responding party’s 15 preliminary construction, or setting forth the responding party’s alternate construction. 16 d. Simultaneous with exchange of the Responsive Claim Constructions 17 pursuant to Patent Local Rule 4.1(c), the parties must also provide a preliminary 18 identification of extrinsic evidence, including without limitation, dictionary definitions, 19 citations to learned treatises and prior art, and testimony of percipient and expert witnesses 20 they contend support any responsive claim constructions. The parties must identify each 21 such item of extrinsic evidence by production number or produce a copy of any such item 22 not previously produced. With respect to any such witness, percipient or expert, the parties 23 must also provide a brief description of the substance of that witness’s proposed testimony. 24 e. The parties must thereafter meet and confer for the purposes of 25 narrowing the issues and finalizing preparation of a Joint Claim Construction Chart, 26 Worksheet and Hearing Statement for the ’008 patent, the’869 patent, the ’303 patent, and 27 the ’613 patent. 28 9 17-cv-01394-H-NLS 1 11. Joint Claim Construction Chart, Worksheet, and Hearing Statement for 2 the Structure Patents. On or before June 15, 2018, the parties must complete and file a 3 Joint Claim Construction Chart, Joint Claim Construction Worksheet, and Joint Hearing 4 Statement for the ’008 patent, the’869 patent, the ’303 patent, and the ’613 patent. 5 a. The Joint Hearing Statement must include an identification of the terms 6 whose construction will be most significant to the resolution of the case up to a maximum 7 of ten (10) terms. The parties must also identify any term among the ten (10) whose 8 construction will be case or claim dispositive. If the parties cannot agree on the ten (10) 9 most significant terms, the parties must identify ones which they do agree are most 10 significant and then they may evenly divide the remainder with each party identifying what 11 it believes are the remaining most significant terms. However, the total terms identified by 12 all parties as most significant cannot exceed ten (10). For example, in a case involving two 13 (2) parties if the parties agree upon the identification of five (5) terms as most significant, 14 each may only identify two (2) additional terms as most significant; if the parties agree 15 upon eight (8) such terms, each party may only identify only one (1) additional term as 16 most significant. 17 b. The Joint Claim Construction Chart must have a column listing 18 complete language of disputed claims with the disputed terms in bold type and separate 19 columns for each party’s proposed construction of each disputed term. Each party’s 20 proposed construction of each disputed claim term, phrase, or clause, must identify all 21 references from the specification or prosecution history that support that construction, and 22 identify any extrinsic evidence known to the party on which it intends to rely either to 23 support its proposed construction of the claim or to oppose any party’s proposed 24 construction of the claim, including, but not limited to, as permitted by law, dictionary 25 definitions, citations to learned treatises and prior art, and testimony of percipient and 26 expert witnesses. For every claim with a disputed term, each party must identify with 27 specificity the impact of the proposed constructions on the merits of the case. 28 10 17-cv-01394-H-NLS 1 c. The parties’ Joint Claim Construction Worksheet must be in the format 2 set forth in Appendix A of the Patent Local Rules and include any proposed constructions 3 to which the parties agree, as well as those in dispute. The parties must jointly submit the 4 Joint Claim Construction Worksheet to Judge Huff’s e-file inbox in both Word and 5 WordPerfect format or in such other format as the Court may direct. 6 d. 7 8 The Joint Hearing Statement must include: 1. The anticipated length of time necessary for the Claim Construction Hearing; 9 2. Whether any party proposes to call one or more witnesses, 10 including experts, at the Claim Construction Hearing, the identity of each such witness, 11 and for each expert, a summary of each opinion to be offered in sufficient detail to permit 12 a meaningful deposition of that expert; and 13 3. 14 e. The order of presentation at the Claim Construction Hearing. At the Court’s discretion, within seven (7) days of the submission of 15 the Joint Claim Construction Chart, Joint Claim Construction Worksheet and Joint Hearing 16 Statement, the Court will hold a status conference with the parties, in person or by 17 telephone, to discuss scheduling, witnesses and any other matters regarding the Claim 18 Construction Hearing. 19 12. 20 Amended and Final Infringement Contentions for the Structure Patents.3 a. As a matter of right, a party asserting infringement may serve Amended 21 Infringement Contentions for the ’008 patent, the’869 patent, the ’303 patent, and the ’613 22 patent no later than the filing of the parties’ Joint Claim Construction Chart, June 15, 2018. 23 Thereafter, absent undue prejudice to the opposing party, a party asserting infringement 24 may only amend its infringement contentions: 25 26 27 28 3 This rule does not relieve any party from its obligations under Federal Rule of Civil Procedure 26 to timely supplement disclosures and discovery responses. 11 17-cv-01394-H-NLS 1 1. If, not later than thirty (30) days after service of the Court’s 2 Claim Construction Ruling, the party asserting infringement believes in good faith that 3 amendment is necessitated by a claim construction that differs from that proposed by such 4 party; or 5 2. 6 b. upon a timely motion showing good cause. As a matter of right, a party opposing a claim of patent infringement 7 may serve “Amended Invalidity Contentions” for the ’008 patent, the’869 patent, the ’303 8 patent, and the ’613 patent no later than July 18, 2018. Thereafter, absent undue prejudice 9 to the opposing party, a party opposing infringement may only amend its invalidity 10 contentions: 11 1. if a party claiming patent infringement has served Amended 12 Infringement Contentions, and the party opposing a claim of patent infringement believes 13 in good faith that the Amended Infringement Contentions so require; 14 2. if, not later than fifty (50) days after service of the Court’s Claim 15 Construction Ruling, the party opposing infringement believes in good faith that 16 amendment is necessitated by a claim construction that differs from that proposed by such 17 party; or 18 19 3. 13. upon a timely motion showing good cause. Completion of Claim Construction Discovery for the Structure Patents. 20 On June 29, 2018, the parties must complete all discovery, including depositions of any 21 percipient or expert witnesses, that they intend to use in the Claim Construction Hearing 22 for the ’008 patent, the’869 patent, the ’303 patent, and the ’613 patent. Federal Rule of 23 Civil Procedure 30 applies to depositions taken pursuant to Patent Local Rule 4.3 except 24 as to experts. An expert witness identified in a party’s Joint Hearing Statement pursuant 25 to Patent Local Rule 4.2(d) may be deposed on claim construction issues. 26 identification of an expert witness in the Joint Hearing Statement may be deemed good 27 cause for a further deposition on all substantive issues. 28 14. The The parties have agreed to meet and confer in good faith on or before June 12 17-cv-01394-H-NLS 1 29, 2018 to develop a proposal to the Court regarding the reduction of asserted claims and 2 prior art references, including the date on which each party will make their final 3 identification and the number of claims and prior art references which may be asserted. 4 (Doc. No. 103 at 3 n.1.) 5 6 15. Damages Contentions. On July 13, 2018, each party asserting infringement shall: 7 a. Identify each of the category(-ies) of damages it is seeking for the 8 asserted infringement, as well as its theories of recovery, factual support for those theories, 9 and computations of damages within each category, including: 10 1. lost profits; 11 2. price erosion; 12 3. convoyed or collateral sales; 13 4. reasonable royalty; and 14 5. any other form of damages. 15 16 17 b. To the extent a party contends it is unable to provide a fulsome response to the disclosures required by this rule, it shall identify the information it requires. 16. Responsive Damages Contentions. On August 10, 2018, each party denying 18 infringement shall identify specifically how and why it disagrees with those contentions. 19 This should include the party’s affirmative position on each issue. To the extent a party 20 contends it is unable to provide a fulsome response to the disclosures required by this rule, 21 it shall identify the information it requires. 22 23 17. Claim Construction Briefs for the Structure Patents. a. On July 20, 2018, the parties will simultaneously file and serve opening 24 briefs and any evidence supporting their claim constructions for the ’008 patent, the’869 25 patent, the ’303 patent, and the ’613 patent. 26 b. On August 3, 2018, the parties will simultaneously file and serve briefs 27 responsive to the opposing party’s opening brief and any evidence directly rebutting the 28 supporting evidence contained in the opposing party’s opening brief for the ’008 patent, 13 17-cv-01394-H-NLS 1 2 the’869 patent, the ’303 patent, and the ’613 patent. 18. Claim Construction Hearing for the Structure Patents. On Friday, 3 August 31, 2018, at 10:00 a.m., the Honorable Marilyn L. Huff will conduct a Claim 4 Construction Hearing for the ’008 patent, the’869 patent, the ’303 patent, and the ’613 5 patent in San Diego, California. 6 19. Advice of Counsel. Not later than thirty (30) days after the filing of the Claim 7 Construction Order, each party relying upon advice of counsel as part of a patent related 8 claim or defense for any reason must: 9 a. Produce or make available for inspection and copying the opinion(s) 10 and any other documentation relating to the opinion(s) as to which that party agrees the 11 attorney-client or work product protection has been waived; 12 b. Provide a written summary of any oral advice and produce or make 13 available for inspection and copying that summary and documents related thereto for which 14 the attorney-client and work product protection have been waived; and 15 c. Serve a privilege log identifying any other documents, except those 16 authored by counsel acting solely as trial counsel, relating to the subject matter of the 17 opinion(s) which the party is withholding on the grounds of attorney-client privilege or 18 work product protection. 19 A party who does not comply with the requirements of Patent Local Rule 3.7 will 20 not be permitted to rely on advice of counsel for any purpose, absent a stipulation of all 21 parties or by order of the court, which will be entered only upon showing of good cause. 22 20. The initial date for the substantial completion of document discovery 23 including electronically stored information (“ESI”) is October 12, 2018. See Patent L.R. 24 2.1(a)(1). 25 21. All fact discovery must be completed on or before January 24, 2019. 26 “Completed” means that all discovery under Rules 30 through 36 of the Federal Rules of 27 Civil Procedure must be initiated a sufficient period of time in advance of the cut-off date 28 so that it can be completed by the cut-off date, taking into account the times for services, 14 17-cv-01394-H-NLS 1 2 notice, and response as set forth in the Federal Rules of Civil Procedure. 22. On or before October 12, 2018, all parties must exchange with all other 3 parties a list of all expert witnesses expected to be called at trial. The list must include the 4 name, address, and telephone number of the expert and a brief statement identifying the 5 subject areas as to which the expert is expected to testify. The list must also include the 6 normal rates the expert charges for deposition and trial testimony. The list must include 7 non-retained testifying experts. On or before October 26, 2018, any party may supplement 8 its designation in response to any other party’s designation so long as that party has not 9 previously retained an expert to testify on that subject. 10 23. Each expert witness designated by a party must prepare a written report to be 11 provided to all other parties no later than November 9, 2018, containing the information 12 required by Federal Rule of Civil Procedure 26(a)(2)(A) and (B). Except as provided in 13 paragraph 16 below, any party that fails to make these disclosures must not, absent 14 substantial justification, be permitted to use evidence or testimony not disclosed at any 15 hearing or at the time of trial. In addition, the Court may impose sanctions as permitted by 16 Federal Rule of Civil Procedure 37. 17 24. Any party, through any expert designated, must, in accordance with Federal 18 Rule of Civil Procedure 26(a)(2)(D) and 26(e)(2), supplement any of its expert reports 19 regarding evidence intended solely to contradict or rebut evidence on the same subject 20 matter identified in an expert report submitted by another party. Any such rebuttal reports 21 are due on or before December 21, 2018. 22 25. All expert discovery must be completed on or before January 24, 2019. 23 “Completed” means that all discovery under Rules 30 through 36 of the Federal Rules of 24 Civil Procedure must be initiated a sufficient period of time in advance of the cut-off date 25 so that it can be completed by the cut-off date, taking into account the times for services, 26 notice, and response as set forth in the Federal Rules of Civil Procedure. 27 28 26. All motions, including motions addressing Daubert issues, but excluding earlier motions to amend or join parties and later motions in limine, must be filed on or 15 17-cv-01394-H-NLS 1 before February 14, 2019. Any oppositions must be filed on or before February 28, 2019. 2 Any replies must be filed on or before March 7, 2019. The Court schedules a motion 3 hearing for Friday, March 22, 2019, at 10:00 a.m. The Court reserves the right to vacate 4 the hearing and submit the motions on the filings pursuant to Civil Local Rule 7.1(d)(1). 5 The Court reminds the parties that they do not need to wait until the last minute to file their 6 motions. For any motion filed more than two weeks before the motion-filing cut-off date, 7 the moving party must contact chambers to schedule a hearing. 8 All briefing in this action must comply with Civil Local Rule 7.1(h). Briefs or 9 memoranda in support of or in opposition to all motions noticed for the same motion day 10 must not exceed a total of twenty-five (25) pages in length, per party, for all such motions 11 without leave of the judge who will hear the motion. No reply memorandum will exceed 12 ten (10) pages without leave of the judge. 13 27. The parties must conduct a settlement conference in accordance with Patent 14 Local Rule 2.1(c). The parties must contact the magistrate judge assigned to this case to 15 arrange a date for the settlement conference. 16 28. The parties must file and submit to the Court’s e-file inbox a juror 17 questionnaire, including a question regarding time-screening for trial, on or before March 18 7, 2019. 19 20 21 29. Counsel must file their Memoranda of Contentions of Fact and Law in compliance with Civil Local Rule 16.1(f)(2) on or before March 28, 2019. 30. If a party wishes to use deposition testimony in lieu of a live witness, if 22 authorized under the rules, the party must submit the designations to opposing counsel by 23 April 4, 2019. The parties must exchange counter-designations by April 11, 2019. If 24 deposition testimony is used at trial in lieu of a live witness, the Court will determine the 25 allocation of time against each party, but the time is assessed against the time limits 26 authorized for trial. 27 28 31. Counsel must comply with the pretrial disclosure requirements of Federal Rule of Civil Procedure 26(a)(3) on or before April 5, 2019. Failure to comply with these 16 17-cv-01394-H-NLS 1 disclosure requirements could result in evidence preclusion or other sanctions under 2 Federal Rule of Civil Procedure 37. 3 32. Counsel must meet together and take the action required by Civil Local Rule 4 16.1(f)(4) on or before April 12, 2019. At this meeting, counsel must discuss and attempt 5 to enter into stipulations and agreements resulting in simplification of the triable issues. 6 Counsel must exchange copies and/or display all exhibits other than those to be used for 7 impeachment. 8 16.1(f)(4)(c). Counsel will note any objections they have to any other party’s Pretrial 9 Disclosures under Federal Rule of Civil Procedure 26(a)(3). Counsel will cooperate in the 10 11 The exhibits must be prepared in accordance with Civil Local Rule preparation of the proposed pretrial conference order. 33. Counsel for Plaintiffs will be responsible for preparing the proposed pretrial 12 order in accordance with Civil Local Rule 16.1(f)(6)(a). On or before April 19, 2019, 13 Plaintiffs’ counsel must provide opposing counsel with the proposed pretrial order for 14 review and approval. Opposing counsel must communicate promptly with Plaintiffs’ 15 attorney concerning any objections to form or content of the pretrial order, and both parties 16 must attempt promptly to resolve their differences, if any, concerning the order. 17 34. The Proposed Final Pretrial Conference Order, including objections to any 18 other party’s Federal Rule of Civil Procedure 26(a)(3) Pretrial Disclosures, must be served 19 and e-mailed to the District Judge’s e-file inbox on or before April 26, 2019, in accordance 20 with Civil Local Rule 16.1(f)(6). 21 35. The final pretrial conference and hearing on motions in limine will be held 22 before the Honorable Marilyn L. Huff on Friday, May 3, 2019, at 10:00 a.m. All motions 23 in limine must be filed on or before April 5, 2019. Absent further order of the Court, each 24 side may file no more than five motions in limine. 25 36. The parties must submit proposed verdict forms by May 13, 2019. 26 37. The parties must submit proposed questions for the jury on or before May 13, 27 2019. The jury will consist of eight (8) jurors. Each party will have three challenges. The 28 Court uses the Arizona blind strike method. 17 17-cv-01394-H-NLS 1 38. The Court orders the parties to file proposed jury instructions on or before 2 May 13, 2019. Copies of the jury instructions are to be filed with the Court’s Case 3 Management/Electronic Case Filing (“CM/ECF”) system. Additionally, the Court orders 4 the parties to send to chambers via the Court’s e-file e-mail address a clean copy of the 5 requested jury instructions with “Court’s Instruction No. _____” behind each annotated 6 instruction. The clean instructions must be sent to chambers by May 13, 2019. The clean 7 instructions must be on pleading paper in Times New Roman, 14-point font, must be 8 double-spaced, and must not have any header, footer, or page numbers. Further, the clean 9 instructions must be fully completed and in a format that could be read to the jury if adopted 10 by the Court. The parties must remove any brackets, fill in blanks, and make the necessary 11 selections where applicable to any model instructions. 12 13 14 39. The Court schedules a status conference for Monday, May 13, 2019, at 10:30 a.m. Lead trial counsel must appear in person absent further order of the Court. 40. The Court orders the parties to provide separate exhibit lists to the Courtroom 15 Deputy at the status conference on May 13, 2019. The exhibits must be premarked with 16 Plaintiffs using numbers and Defendants using letters in accordance with the Civil Local 17 Rules. Exhibit stickers are available in the Clerk’s office. If a party wishes to use 18 electronic or demonstrative equipment during trial, the Court directs the party to contact 19 the Courtroom Deputy to schedule an appropriate time to setup the equipment before the 20 trial begins and submit a proposed order by May 10, 2019, to allow the equipment to 21 proceed through security. 22 41. 23 42. The Court will not modify the dates and times set forth in this order except for 24 25 26 The Court schedules trial for Tuesday, May 14, 2019, at 9:00 a.m. good cause shown. IT IS SO ORDERED. DATED: February 23, 2018 27 MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT 28 18 17-cv-01394-H-NLS

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