Wireless Recognition Technologies LLC v. A9.com, Inc. et al

Filing 116

Joint MOTION for Entry of Amended Discovery and Docket Control Orders by A9.com, Inc., Amazon.com, Inc., Google, Inc.,, Nokia, Inc., Ricoh Innovations, Inc., Wireless Recognition Technologies LLC. (Attachments: # 1 Text of Proposed Order Amended Discovery Order, # 2 Text of Proposed Order Amended Docket Control Order (consolidated versions), # 3 Text of Proposed Order Amended Docket Control Order (Defendants' Version), # 4 Text of Proposed Order Amended Docket Control Order (Plaintiff's Version))(Smith, Michael)

EXHIBIT 1

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

WIRELESS RECOGNITION
TECHNOLOGIES LLC,
Plaintiff,
vs.
A9.COM, INC., AMAZON.COM, INC.,
GOOGLE INC., NOKIA, INC., and
RICOH INNOVATIONS, INC.,
Defendants.

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§ Civil No. 2:10-CV-00364-DF
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[DRAFT] AMENDED DISCOVERY ORDER
After a review of the pleaded claims and defenses in this action, in furtherance of the
management of the court’s docket under Fed. R. Civ. P. 16, and after receiving the input of the
parties to this action, it is ORDERED AS FOLLOWS:
1. Disclosures. Except as provided by paragraph 1(h), and, to the extent not already
disclosed, by May 5, 2011, each party shall disclose to every other party the following
information:
(a) the correct names of the parties to the lawsuit;
(b) the name, address, and telephone number of any potential parties;
(c) the legal theories and, in general, the factual bases of the disclosing party’s claims
or defenses (the disclosing party need not marshal all evidence that may be
offered at trial);
(d) the name, address, and telephone number of persons having knowledge of
relevant facts, a brief statement of each identified person’s connection with the

case, and a brief, fair summary of the substance of the information known by any
such person;
(e) any indemnity and insuring agreements under which any person or entity carrying
on an insurance business may be liable to satisfy part or all of a judgment entered
in this action or to indemnify or reimburse for payments made to satisfy the
judgment;
(f) any settlement agreements relevant to the subject matter of this action;
(g) any statement of any party to the litigation;
(h) for any testifying expert, by the date set by the Court in the Docket Control Order,
each party shall disclose to the other party or parties:
i. the expert’s name, address, and telephone number;
ii. the subject matter on which the expert will testify;
iii. if the witness is retained or specially employed to provide expert
testimony in the case or whose duties as an employee of the disclosing
party regularly involve giving expert testimony:
(a) all documents, tangible things, reports, models, or data compilations
that have been provided to, reviewed by, or prepared by or for the
expert in anticipation of the expert’s testimony, except as set forth in
paragraph 4; and
(b) the disclosures required by Fed. R. Civ. P. 26(a)(2)(B) and Local
Rule CV-26.
iv. for all other experts, the general substance of the expert’s mental
impressions and opinions and a brief summary of the basis for them or

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documents reflecting such information;
2. Protective Orders. Plaintiff and Defendants have filed competing versions of their
respectively preferred Protective Orders in the 2:10-cv-364 civil action (Dkt. No. 96) and
await a ruling by the Court.
3. Additional Disclosures. Each party, without awaiting a discovery request, shall provide,
to the extent not already provided, to every other party the following:
(a) the disclosures required by the Patent Rules for the Eastern District of Texas;
(b) by February 24, 2012, a copy of all documents, electronically stored information,
and tangible things in the possession, custody, or control of the party that are
relevant to the pleaded claims or defenses involved in this action. The parties
shall produce all documents in the TIFF electronic format with a load file—
specifically a form that preserves the page breaks between documents and
otherwise allows separate documents to be identified. Notwithstanding the
foregoing, if by their nature, certain documents are best viewable in their native
formats (e.g., financial documentation) a party will accommodate the requesting
party’s requests to produce such documents in their respective native formats, so
long as the burden is not cumulative or overly burdensome. In addition, where
computer source code is made part of a party’s production or a third party’s
production of documents and things, one or more of the producing parties or third
parties may require the use of a secure facility wherein electronic copies of such
source code may be searched and traced in a non-networked, protected
environment, subject to the terms of an appropriate Protective Order entered by
the Court. Notwithstanding the foregoing, each party shall make every attempt to

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work in good faith in order to accommodate the technical or other feasibility
requirements of the requesting party with respect to the format of produced
documents, so long as such requests are reasonable, provide sufficient time, and
are not duplicative, burdensome or financially unreasonable to accommodate; and
(c) by February 24, 2012, a complete computation of any category of damages
claimed by any party to the action, making available for inspection and copying as
under Rule 34, the documents or other evidentiary material on which such
computation is based, including materials bearing on the nature and extent of
injuries suffered.
4. Discovery Limitations. The discovery in this cause is limited to the disclosures
described in Paragraphs 1 and 3 together with (i) Plaintiff may serve on each Defendant
party up to 25 interrogatories, and Defendants collectively may serve on Plaintiff up to 15
common interrogatories (i.e., per Defendant side) and an additional 15 individual
interrogatories (i.e., per Defendant party); (ii) Plaintiff may serve up to 50 requests for
admission on each Defendant party, and Defendants collectively may serve on Plaintiff
up to 50 common requests for admission (i.e., per Defendant side) and an additional 20
individual requests for admission (i.e., per Defendant party), provided, that, as used
herein, requests for admission shall exclude requests for admission that a document is
authentic, is a business record, or otherwise meets a condition for admissibility in
evidence; (iii)(a) Plaintiff may take up to 35 hours of depositions of each Defendant party
(excluding experts), and Defendants collectively may take up to 45 hours of depositions
of Plaintiff (excluding experts) (i.e., per Defendant side); (b) 50 hours of nonparty
depositions (excluding the named inventor) per party; (c) 7 hours of expert deposition per

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expert report per party unless any issue in an expert report addresses more than one party,
in which case such expert may be deposed for an additional 2 hours per party on such
report; (d) Defendants collectively may take up 7 hours of inventor deposition testimony
(i.e., per Defendant side) and an additional 2 hours per each Defendant (i.e., per
Defendant party); and (iv) 4 expert witnesses per party. As used herein, “Plaintiff” refers
to Wireless Recognition Technologies; “Defendant side” refers to all of the named
Defendants collectively; and “Defendant party” means each of (i) A9.com, (ii)
Amazon.com, (iii) Google, (iv) Nokia, and (v) Ricoh. Any party may move to modify
these limitations for good cause. Unless if modified pursuant to the provisions
hereinabove, the parties shall abide by Rule 30 of the Federal Rules of Civil Procedure.
5. Privileged Information. There is no duty to disclose privileged documents or
information. However, the parties are directed to meet and confer concerning privileged
documents or information after the Status Conference. By April 20, 2012, the parties
shall exchange privilege logs identifying the documents or information and the basis for
any disputed claim of privilege in a manner that, without revealing information itself
privileged or protected, will enable the other parties to assess the applicability of the
privilege or protection. The privilege log shall exclude any documents or information that
were created after the filing of the present action. Any party may move the court for an
order compelling the production of any documents or information identified on any other
party’s privilege log. If such a motion is made, the party asserting privilege shall respond
to the motion within the time period provided by Local Rule CV-7. The party asserting
privilege shall then file with the Court within 30 days of the filing of the motion to
compel any proof in the form of declarations or affidavits to support their assertions of

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privilege, along with the documents over which privilege is asserted for in camera
inspection. If the parties have no disputes concerning privileged documents or
information, then the parties shall inform the Court of that fact by April 20, 2012.
6. Pre-trial disclosures. Each party shall provide to every other party regarding the
evidence that the disclosing party may present at trial as follows:
(a) The name and, if not previously provided, the address and telephone number, of
each witness, separately identifying those whom the party expects to present at
trial and those whom the party may call if the need arises.
(b) The designation of those witnesses whose testimony is expected to be presented
by means of a deposition and, if not taken stenographically, a transcript of the
pertinent portions of the deposition testimony.
(c) An appropriate identification of each document or other exhibit, including
summaries of other evidence, separately identifying those which the party expects
to offer and those which the party may offer if the need arises.
Unless otherwise directed by the court, these disclosures shall be made at least 30
days before trial. Within 14 days thereafter, unless a different time is specified by the
court, a party may serve and file a list disclosing (1) any objections to the use under Rule
32(a) of a deposition designated by another party under subparagraph (B), and (2) any
objections, together with the grounds therefor, that may be made to the admissibility of
materials identified under subparagraph (c). Objections not so disclosed, other than
objections under Rules 402 and 403 of the Federal Rules of Evidence, shall be deemed
waived unless excused by the court for good cause shown.
7. Signature. The disclosures required by this order shall be made in writing and signed by

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the party or counsel and shall constitute a certification that, to the best of the signer’s
knowledge, information and belief, such disclosure is complete and correct as of the time
it is made. If feasible, counsel shall meet to exchange disclosures required by this order;
otherwise, such disclosures shall be served as provided by Fed. R. Civ. P. 5. The parties
shall promptly file a notice with the court that the disclosures required under this order
have taken place.
8. Duty to Supplement. After disclosure is made pursuant to this order, each party is under
a duty to supplement or correct its disclosures immediately if the party obtains
information on the basis of which it knows that the information disclosed was either
incomplete or incorrect when made, or is no longer complete or true.
9. Disputes.
(a) Except in cases involving claims of privilege, any party entitled to receive
disclosures may, after the deadline for making disclosures, serve upon a party
required to make disclosures a written statement, in letter form or otherwise, of
any reason why the party entitled to receive disclosures believes that the
disclosures are insufficient. The written statement shall list, by category, the items
the party entitled to receive disclosures contends should be produced. The parties
shall promptly meet and confer. If the parties are unable to resolve their dispute,
then the party required to make disclosures shall, within 14 days after service of
the written statement upon it, serve upon the party entitled to receive disclosures a
written statement, in letter form or otherwise, which identifies (1) the requested
items that will be disclosed, if any, and (2) the reasons why any requested items
will not be disclosed. The party entitled to receive disclosures may thereafter file

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a motion to compel.
(b) Counsel are directed to contact the chambers of the undersigned for any “hot-line”
disputes before contacting the Discovery Hotline provided by Local Rule CV26(e). If the undersigned is not available, the parties shall proceed in accordance
with Local Rule CV-26(e).
10. No Excuses. A party is not excused from the requirements of this Discovery Order
because it has not fully completed its investigation of the case, or because it challenges
the sufficiency of another party’s disclosures, or because another party has not made its
disclosures. Absent court order to the contrary, a party is not excused from disclosure
because there are pending motions to dismiss, to remand or to change venue.
11. Filings. Only upon request from chambers shall counsel submit to the court courtesy
copies of any filings.

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