Rockstar Consortium US LP et al v. Google Inc

Filing 69

DISCOVERY ORDER. Signed by Magistrate Judge Roy S. Payne on 5/12/2014. (ch, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION ROCKSTAR CONSORTIUM US LP AND NETSTAR TECHNOLOGIES LLC Case No. 2:13-cv-00893-JRG-RSP Plaintiffs, JURY TRIAL DEMANDED v. GOOGLE INC. Defendant. 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), 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 01980.00010/5886970.3 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. 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 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: 1 The Court anticipates that this disclosure requirement will obviate the need for requests for production. 01980.00010/5886970.3 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, 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, 40 requests 01980.00010/5886970.3 for admissions per side (excluding requests solely for authentication of documents, which shall be unlimited), the fact depositions of the parties and third parties, as many document subpoenas of third parties as needed, five expert witnesses per side, and 145 hours per side for depositions of fact witnesses. Depositions of expert witnesses shall not count toward this 145-hour limit. “Side” means a party or a group of parties with a common interest. All individual depositions shall be limited to seven hours in accordance with the Federal Rules of Civil Procedure except that depositions of experts shall be limited to one day of seven (7) hours, unless the parties agree to additional time or the expert has provided more than one expert report, in which case the expert may be deposed for an additional consecutive day of seven (7) hours for a total of up to fourteen (14) hours. Any party may later move to modify these limitations for good cause, and the party’s ability to do so shall not be prejudiced in any way by this paragraph. For example, Defendant advised Plaintiffs that Defendant currently intends to take the depositions of the named inventors prior to claim construction briefing, and that if Plaintiffs produce documents relevant to the inventors after that date, Defendant reserves the right to seek leave of court to depose them again. The parties recognize that this proceeding is still in a preliminary stage and that discovery has not yet commenced. The limitations contained in this order may be modified by agreement of the parties subject to approval of the court or by motion to the court with the burden on the party seeking modification. Accordingly, the parties agree to meet and confer in good faith about reasonable adjustments to any of the preceding limits as discovery progresses. Furthermore, to the extent the 01980.00010/5886970.3 parties are unable to reach agreement, any party may later move to modify these limitations for good cause. 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 01980.00010/5886970.3 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. 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 01980.00010/5886970.3 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-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. 13. Proposed Stipulations by the Parties Regarding Discovery. (a) Production Of Materials Obtained Via Third-Party Subpoena. A party who serves a subpoena in this matter on a third party shall provide a copy to the other party. Subject to the provisions in the parties’ Agreement Regarding the Format of Document Production, a party who receives documents from a third party pursuant to a subpoena will reproduce those documents to the other party as soon as practicable and at most, no later than three (3) business days after receiving the documents. Where reproduction of documents within three (3) business days is not possible, the party who 01980.00010/5886970.3 received the documents will provide prompt notice to the other party and will work in good faith to resolve the issue on a case-by-case basis. (b) Post-Complaint Privileged Documents. No party shall be required to identify on their respective privilege log any document or communication dated on or after the filing of the lawsuit, which absent this provision, the party would have been obligated to so identify on said privilege log. The parties shall exchange their respective privilege document logs at a time to be agreed upon by the parties following the production of documents. (c) Limitations on Expert Discovery. Testifying experts shall not be subject to discovery of any draft of their reports in this case and such draft reports, notes, outlines, or any other writings leading up to an issued report(s) in this litigation are exempt from discovery. In addition, all communications between counsel for a party and that party’s testifying expert, and all materials generated by a testifying expert with respect to that person’s work, are exempt from discovery unless they relate to the expert’s compensation or identify facts, data or assumptions relied upon by the expert in forming any opinions in this litigation and such information is not already disclosed in the expert’s report. (d) Electronic Service. The parties agree to serve documents, pleadings, correspondence and other items electronically in lieu of service by U.S. Mail or otherwise, to at least each attorney listed on the docket as attorney of record for the opposing party or to at least the attorneys on an agreed-upon service list. If the document, pleading, correspondence or 01980.00010/5886970.3 other item is too large to be served electronically, then a cover letter of other similar notification shall be served electronically and the document, pleading, correspondence or other item shall be served by Federal Express for next day delivery. (e) Electronically-Stored Information. Discovery and production of electronically-stored information (ESI), including email and electronic files, shall be governed by the parties’ Agreement Regarding the Format of Document Productions. 14. Courtesy Paper Copies. Papers copies will not be accepted by this Court unless specifically requested. 15. . Hearing Notebooks. Hearing notebooks are no longer required or requested. However, the Court may request hearing notebooks in specific instances. 16. Witness Disclosures Any opinion testimony offered by a witness shall comply with the requirements in the Federal Rules of Evidence, Federal Rules of Civil Procedure, and Local Rules of this Court. IT IS SO ORDERED. SIGNED this 3rd day of January, 2012. SIGNED this 12th day of May, 2014. ____________________________________ ROY S. PAYNE UNITED STATES MAGISTRATE JUDGE 01980.00010/5886970.3

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