Konami Gaming Inc. v. PTT, LLC

Filing 52

ORDER Granting 51 Second Amended Joint Stipulated Discovery Plan and Scheduling Order. Signed by Magistrate Judge Nancy J. Koppe on 11/12/15. (Copies have been distributed pursuant to the NEF - PS)

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HOWARD & HOWARD ATTORNEYS PLLC
Robert Hernquist (Nevada Bar No. 10616)
Wells Fargo Tower, Suite 1000
3800 Howard Hughes Parkway
Las Vegas, Nevada 89169-5980
Telephone: [phone] | Facsimile: [phone]
Email: [e-mail]
HOWARD & HOWARD ATTORNEYS PLLC
Patrick M. McCarthy (Michigan Bar No. P49100) (admitted pro hac vice)
One North Main Building, Suite 410
101 North Main Street
Ann Arbor, Michigan 48104-1475
Telephone: [phone] | Fax: [phone]
Email: [e-mail]

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HOWARD & HOWARD ATTORNEYS PLLC
3800 Howard Hughes Pkwy., Suite 1000
Las Vegas, NV 89169
[phone]

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HOWARD & HOWARD ATTORNEYS PLLC
Kristopher K. Hulliberger (Michigan Bar No. P66903) (admitted pro hac vice)
450 West Fourth Street
Royal Oak, Michigan 48067-2557
Telephone: [phone] | Fax: [phone]
Email: [e-mail]
Attorneys for Plaintiff Konami Gaming, Inc

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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KONAMI GAMING, INC., a Nevada
corporation,

Case No. 2:14-CV-01483-RFB-NJK

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Plaintiff,

SECOND AMENDED JOINT
STIPULATED DISCOVERY PLAN AND
SCHEDULING ORDER

v.
PTT, LLC d/b/a High 5 Games, a Delaware
limited liability company,

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As amended on
Page 8.

Defendant.
____________________________________
PTT, LLC d/b/a High 5 Games, a Delaware
limited liability company,

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Counterclaim-Plaintiff,
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v.
KONAMI GAMING, INC., a Nevada
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corporation,
Counterclaim-Defendant.
Pursuant to Rule 26(f) of the Federal Rules of Civil procedure and Local Rule 26-1,

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usly submitted a Joint Stipulated Discovery Plan and

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Scheduling Order on March 13, 2015 (Dkt No. 25). On September 18, 2015, this Court

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HOWARD & HOWARD ATTORNEYS PLLC
3800 Howard Hughes Pkwy., Suite 1000
Las Vegas, NV 89169
[phone]

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Deadlines (Dkt No. 43) and Ordered that an Amended Joint Discovery Plan containing the

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deadlines granted in the Stipulation be filed no later than September 22, 2015. Pursuant to

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that Order, the Parties submitted an Amended Joint Discovery Plan and Scheduling Order that

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was granted on September 23, 2015. (Dkt 46). The parties further agree to extend the stay

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period for an additional seventy (70) days and to adjust other scheduling dates accordingly in
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order to conduct a technical review meeting and to facilitate discussions that may assist with

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resolution of this matter. The Parties hereby submit this Second Amended Joint Discovery

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Plan and Scheduling Order.

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This is a complex patent case involving

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games. The parties have exchanged initial contentions in accordance with the Joint Discovery

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Plan and Scheduling Order set forth in this case. (Dkt. No. 32). During the contention

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exchange plaintiff Konami served Initial Infringement Contentions (44 pages with claim

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-Infringement, Invalidity and Unenforceability

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Contentions (489 pages with claim charts), and finally, Konami served its Response to High

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and Scheduling Order in order to exchange further information about the accused technology,

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and to permit the parties technical representatives to meet and discuss the technology, with the

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intention of potentially reducing the issues and complexities in this dispute.

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As this is a complex patent infringement action, a Markman hearing is required to

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Markman ruling to

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come will be critical to the scope of discovery performed in this matter, such as, for example,

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determining the scope of product(s) accused of infringement and related issues such as

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damages by reason of their distribution in the marketplace. As a result, the Parties previously

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HOWARD & HOWARD ATTORNEYS PLLC
3800 Howard Hughes Pkwy., Suite 1000
Las Vegas, NV 89169
[phone]

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requested Special Scheduling under the Local Rules to trigger certain discovery deadlines

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truction order, the timing of which the Parties and the

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Court cannot determine at this time. The Special Scheduling Review was therefore made in

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good faith and for purposes of litigating the case in the most expeditious and cost-effective

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manner for the Court and all parties. The Proposed Discovery Plan and Scheduling Order

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along with this Revised Discovery Plan and Scheduling Order are similar to other orders

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entered by the Court in this District. See, e.g., Scheduling Order granting Proposed Discovery

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Plan/Scheduling Order dated 1/27/2015 (Dkt No. 31) in Konami Gaming, Inc. v. Marks

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Studios, LLC, Case Number: 2:14-cv-01485-JAD-CWH; and Scheduling Order granting

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Proposed Discovery Plan/Scheduling Order dated 08/04/2014 (Dkt. No. 18) in Konami

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Gaming, Inc. v. Lightning Gaming, Inc. et al., Case Number 2:14-cv-00724-JAD-CWH; and

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Joint Proposed Discovery Plan and Scheduling Order dated 3/11/2015 (Dkt. 19) in Galaxy

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Gaming, Inc. v. In Bet Gaming, Inc., et al., Case Number: 2:14-cv-01956-RFB-VCF.

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I.

COMPLIANCE WITH LOCAL RULE 26-1(D); STATEMENT REGARDING

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CLAIMS AND DEFENSES
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Plaintiff and Defendant, through their attorneys of record, held their conference

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pursuant to Fed. R. Civ. P. 26(f) on February 19, 2015. The parties request special scheduling

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in the form of a discovery period that is longer than the 180-day discovery period provided for

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under the Local Rules. The parties respectfully submit that the extended time period is

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appropriate because this is a patent case with discovery that is more time consuming than in

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other matters. This case involves claims by Plaintiff that Defendant infringes four patents

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owned by Konami -

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wit

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HOWARD & HOWARD ATTORNEYS PLLC
3800 Howard Hughes Pkwy., Suite 1000
Las Vegas, NV 89169
[phone]

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-in-Sui

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Defendant, in turn, denies infringement and challenges the validity of the Patents and has

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counterclaimed for a declaration of non-infringement and invalidity of the Patents-in-Suit.

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Written and deposition discovery will be needed, for example, the research, design and

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development of the products accused of infringement, various pieces of prior art that may be

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prosecution of the Patents-in-Suit, the proper construction of limitations of the asserted claims

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of the Patents-in-

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Markman ruling will decide the meaning and scope of the patent
claims, which further may lead to additional fact discovery, and it will inform expert

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discovery. As a result, the parties have agreed and ask that fact and expert discovery be
phased, such that fact discovery closes one hundred-twenty (120) days after entry of the
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construction order, and expert discovery closes ninety days (90) after the close

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of fact discovery. This will allow the parties to quickly complete any necessary discovery

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after the claim construction order, and will simplify and focus the remaining discovery, as

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well as any summary judgment motions and the Pretrial Order. The Parties further request a

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modification of the Markman schedule from the Local Rules 16.1-6 to 16.1-18 and believe

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there is good cause to do so.

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counterclaimed for a declaration of non-infringement and invalidity of the Patents-in-Suit,

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Plaintiff asserts four (4) patents and Defendant has

which cause this matter to be complex. As stated above, most of this case hinges upon the

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HOWARD & HOWARD ATTORNEYS PLLC
3800 Howard Hughes Pkwy., Suite 1000
Las Vegas, NV 89169
[phone]

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proper construction of limitations of the asserted claims of the Patents-in-Suit as determined

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Markman ruling. The special scheduling review is made in good faith and for

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purposes of litigating the case in the most expeditious and cost-effective manner for the Court

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and all parties.

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II.

DISCOVERY PLAN

A.

Initial Disclosures
The parties exchanged initial disclosures pursuant to Rule 26(a)(1) on April 27, 2015.

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B.

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Proposed Schedule
(i)

The parties propose the following schedule:

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Event

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Proposed Date1

Basis

Deadline for Plaintiff to
file Amended Complaint

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February 29, 2016

Deadline for Defendant
to file Amended Answer
to Counterclaim

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March 14, 2016

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The Parties note that the granted Stipulation (Dkt No. 43) stayed discovery deadlines,

negotiate and agree to a revised deadline to respond to all such outstanding discovery requests
upon conclusion of the stay.
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Parties to file proposed
protective order

14 days after Initial Scheduling
Conference. LR 16.1-4.

Previously
submitted on April
27, 2015

Last day to amend
pleadings or add parties

90 days prior to the close of
discovery

TBD

Initial expert disclosures

45 days after a Markman order
on claim construction.

TBD

Rebuttal expert exchange

30 days after initial expert
disclosures. LR 26-1(e)(3).

TBD

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Submission of Joint
Interim Status Report

60 days before discovery cut-off.
LR 26-3.

TBD

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Fact discovery cut-off

120 days after entry of the

TBD

Expert discovery cut-off

90 days after the fact discovery
cut off.

TBD

Last day to file
dispositive motions

30 days after the expert
discovery cut-off. LR 261(e)(4).

TBD

File pre-trial order

30 days after dispositive motion
cut-off. LR 26-1(e)(5).

TBD2

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HOWARD & HOWARD ATTORNEYS PLLC
3800 Howard Hughes Pkwy., Suite 1000
Las Vegas, NV 89169
[phone]

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C.

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Issues regarding disclosure or discovery of electronically stored information and forms

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Electronic Discovery

in which it is produced: The parties agree that all documents produced in this action will be

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exchanged electronically in an electronically searchable format (i.e., with OCR information).

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In addition, the following must be produced for each document other than documents in

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native format:

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a)

Single-page TIFF images; or multiple page PDF files;

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In the event dispositive motions are filed, this date shall be suspended until 30 days after
decision on those motions or further order of the Court (LR 26-1(e)(5)). The disclosures
required by FRCP 26(a)(3) and objections thereto shall be included in pre-trial order.
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b)

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Image base load files for IPRO (*.LFP), OPTICON (*.OPT or *.LOG), or

SUMMATION (*dii). These load files shall also depict the documents boundaries, and IPRO
and Summation must also depict attachment relationships; and

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c)

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Data load files that are compatible with Concordance (*.DAT) or Summation

(*dii) or are in a similarly delineated format.

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Alternatively, a party may provide some documents or information in native format

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with an associated production number. Each party reserves its right to assert any appropriate

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objections to a request for production of documents in native format. If a party elects to

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HOWARD & HOWARD ATTORNEYS PLLC
3800 Howard Hughes Pkwy., Suite 1000
Las Vegas, NV 89169
[phone]

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produce documents in native format, the parties shall confer to reach an agreement regarding
what, if any, associated metadata shall be produced.

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D.

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Discovery Limitations

The parties have no proposed changes to the normal limitations on discovery

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according to the Federal Rules of Civil Procedure.

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E.

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The parties anticipate the need for a Markman schedule and hearing. The proposed

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Markman Schedule

dates for such a hearing pursuant to Local rules 16.1-6 to 16.1-18 are below:

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Event

Basis

Proposed Date

Disclosure of Asserted Claims and
Infringement Contentions (Amended)

LR 16.1-6

February 29, 2016

Initial Disclosure of Non-Infringement,
Invalidity and Unenforceability Contentions
(Amended)

LR 16.1-8

April 14, 2016

Response to Initial Non-Infringement,
Invalidity and Unenforceability Contentions
(Amended)

LR 16.1-10

April 28, 2016

Exchange of Proposed Terms for Claim
Construction

LR 16.1-13

May 30, 2016

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Exchange of Preliminary Claim Construction
and Extrinsic Evidence

LR 16.1-14

August 29, 2016

Parties to Meet and Confer regarding terms
requiring construction and proposed meaning
of the terms

LR 16.1-14

September 5 September 9,
2016

Joint Claim Construction Statement

LR 16.1-15

September 16, 2016

Opening Claim Construction Brief

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LR 16.1-16

October 7, 2016

Responsive Claim Construction Brief

LR 16.1-16

October 21, 2016

Reply Claim Construction Brief

LR 16.1-16

October 28, 2016

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HOWARD & HOWARD ATTORNEYS PLLC
3800 Howard Hughes Pkwy., Suite 1000
Las Vegas, NV 89169
[phone]

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F.

Estimated Time for Trial

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Because this is a patent case involving four patents, the parties estimate a 10 day jury
trial following voir dire.
The parties are ordered to submit a stipulation with calender dates for all deadlines

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listed as TBD on page 6 of this scheduling order, no later than 14 days after the Court's
issuance of the claim construction order.

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November 12, 2015
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Dated this 9th day of November , 2015.

Dated this 9th day of November, 2015.

HOWARD & HOWARD ATTORNEYS PLLC

HOLLAND & HART LLP

/s/ Patrick M. McCarthy
Robert Hernquist
Nevada Bar No. 10616)
Wells Fargo Tower, Suite 1000
3800 Howard Hughes Pkwy.
Las Vegas, Nevada 89169
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

/s/ Robert C. Ryan
Robert C. Ryan, Esq.
Nevada Bar No. 7164
5441 Kietzke Lane, Second Floor
Reno, Nevada 89511
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

Patrick M. McCarthy (Michigan Bar No.
P49100) (admitted Pro Hac Vice)
One North Main Building, Suite 410
101 North Main Street
Ann Arbor, Michigan 48104
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

Ryan A. Loosvelt, Esq.
Nevada Bar No. 8550
9555 Hillwood Drive, 2nd Floor
Las Vegas, Nevada 89134
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

Christopher B. Hadley, Esq.
(Pro Hac Vice to be filed)
222 South Main St., Suite 2200
Salt Lake City, UT 84101
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Kristopher K. Hulliberger
(Michigan Bar No. P66903)
(admitted pro hac vice)
450 West Fourth Street
Royal Oak, Michigan 48067-2557
Telephone: [phone]
Fax: [phone]
Email: [e-mail]

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Attorneys for Plaintiff Konami Gaming, Inc.

Attorneys for Defendant PTT, LLC d/b/a
High 5 Games

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HOWARD & HOWARD ATTORNEYS PLLC
3800 Howard Hughes Pkwy., Suite 1000
Las Vegas, NV 89169
[phone]

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4839-0215-1466, v. 1

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