Disposition Services LLC v Dell Inc

Filing 36

DISCOVERY ORDER. Signed by Magistrate Judge Roy S. Payne on 8/29/13. (ehs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
DISPOSITION SERVICES, LLC
v.
DELL INC.

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Case No. 2:13-CV-282-JRG-RSP

PROPOSED 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 Federal Rule of Civil Procedure 16, and after receiving
the input of the parties to this action, it is ORDERED AS FOLLOWS:
1.

Initial Disclosures.

In lieu of the disclosures required by Federal Rule of Civil

Procedure 26(a)(1), by the time set forth in the Docket Control Order, 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)
(g)
2.

any settlement agreements relevant to the subject matter of this action; and
any statement of any party to the litigation.

Disclosure of Expert Testimony. By the time set forth in the Docket Control Order, a
party must disclose to the other parties the identity of any witness it may use at trial to
present evidence under Federal Rule of Evidence 702, 703 or 705, and:
(a)

if the witness is one retained or specially employed to provide expert testimony in
the case or one whose duties as the party’s employee regularly involve giving
expert testimony, provide the disclosures required by Federal Rule of Civil
Procedure 26(a)(2)(B) and Local Rule CV-26; and

(b)

for all other such witnesses, provide the disclosure required by Federal Rule of
Civil Procedure 26(a)(2)(C).

3.

Additional Disclosures. Without awaiting a discovery request, 1 by the time set forth in
the Docket Control Order, each party will make the following disclosures to every other
party:
(a)

provide the disclosures required by the Patent Rules for the Eastern District of
Texas with the following modifications to P.R. 3-1 and P.R. 3-3:
P.R. 3-1(g): If a party claiming patent infringement asserts that a
claim element is a software limitation, the party need not comply
with P.R. 3-1 for those claim elements until 30 days after source
code for each Accused Instrumentality is produced by the opposing
party. Thereafter, the party claiming patent infringement shall
identify, on an element-by-element basis for each asserted claim,

1

The Court anticipates that this disclosure requirement will obviate the need for requests
for production.

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what source code of each Accused Instrumentality allegedly
satisfies the software limitations of the asserted claim elements.
P.R. 3-3(e): If a party claiming patent infringement exercises the
provisions of P.R. 3-1(g), the party opposing a claim of patent
infringement may serve, not later than 30 days after receipt of a
P.R. 3-1(g) disclosure, supplemental “Invalidity Contentions” that
amend only those claim elements identified as software limitations
by the party claiming patent infringement.
(b)

produce or permit the inspection 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, except
to the extent these disclosures are affected by the time limits set forth in the Patent
Rules for the Eastern District of Texas; and

(c)

provide a complete computation of any category of damages claimed by any party
to the action, and produce or permit the inspection of documents or other
evidentiary material on which such computation is based, including materials
bearing on the nature and extent of injuries suffered, except that the disclosure of
the computation of damages may be deferred until the time for Expert Disclosures
if a party will rely on a damages expert.

4.

Protective Orders. The Court will enter the parties’ Agreed Protective Order.

5.

Discovery Limitations.

The discovery in this cause is limited to the disclosures

described in Paragraphs 1-3 together with: 30 interrogatories per side, 30 requests for
admissions per side, the depositions of the parties, depositions on written questions of
custodians of business records for third parties, 60 hours of nonparty depositions per side,
and 3 expert witnesses per side. “Side” means a party or a group of parties with a
common interest. Any party may later move to modify these limitations for good cause.

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6.

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 the deadline set in the Docket
Control Order, 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. 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
privilege, along with the documents over which privilege is asserted for in camera
inspection.
7.

Signature. The disclosures required by this Order shall be made in writing and signed by
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 Federal Rule of Civil
Procedure 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

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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.

Discovery Disputes.
(a)

Except in cases involving claims of privilege, any party entitled to receive
disclosures (“Requesting Party”) may, after the deadline for making disclosures,
serve upon a party required to make disclosures (“Responding Party”) a written
statement, in letter form or otherwise, of any reason why the Requesting Party
believes that the Responding Party’s disclosures are insufficient. The written
statement shall list, by category, the items the Requesting Party contends should
be produced. The parties shall promptly meet and confer. If the parties are
unable to resolve their dispute, then the Responding Party shall, within 14 days
after service of the written statement upon it, serve upon the Requesting Party 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 Requesting Party may thereafter file a motion to
compel.

(b)

In addition to the requirements of Local Rule CV-7(h) and (i), an opposed
discovery-related motion must include a certification that an in-person
conference involving lead and local counsel for all parties to the discovery dispute
was held.

(c)

Counsel are directed to contact the chambers of the undersigned for any “hot-line”
disputes before contacting the Discovery Hotline provided by Local Rule CV-

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26(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.

12.

Proposed Stipulations by the Parties Regarding Discovery:
The parties request that the Court enter its [Model] Order Regarding E-Discovery in

Patent Cases, and the parties agree to follow the provisions therein. The parties agree that, where
a party has designated a document as confidential per the Protective Order in this case, the

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parties are to provide a field in the load file that contains the confidentiality designation. The
parties further agree that no party is required to provide a log of privileged documents or
information created after the filing date of this action. Moreover, when there is a chain of
privileged emails, the producing party need only include one entry on the privilege log for the
entire email chain, and need not log each email contained in the chain separately; provided that
the receiving party, for good cause shown, shall be permitted to request from the producing party
additional information regarding such a chain of privileged emails. The Parties further agree to
service by e-mail communication.
SIGNED this 3rd day of January, 2012.

SIGNED this 29th day of August, 2013.

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ROY S. PAYNE
- 6 - UNITED STATES MAGISTRATE JUDGE