ESN LLC v. Cisco Systems, Inc. et al

Filing 12

NOTICE OF SCHEDULING CONFERENCE, PROPOSED DEADLINES FOR DOCKET CONTROL ORDER, AND DISCOVERY ORDER; Scheduling Conference set for 4/22/2008 10:00 AM in Ctrm 319 (Texarkana) before Judge David Folsom.. Signed by Judge David Folsom on 3/12/08. (mrm, )

ESN LLC v. Cisco Systems, Inc. et al

Doc. 12

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION ESN LLC Plaintiff, v. CISCO SYSTEMS, INC., et al Defendant. § § § § § § CIVIL ACTION NO. 5:08CV20 § § § §

NOTICE OF SCHEDULING CONFERENCE, PROPOSED DEADLINES FOR DOCKET CONTROL ORDER, AND DISCOVERY ORDER The Court, sua sponte, issues this Notice of Scheduling Conference and Proposed Deadlines for Docket Control Order Containing Discovery Order. Notice of Scheduling Conference Pursuant to FED. R. CIV. P. 16 and Local Rule CV-16, the Scheduling Conference in this case is set for Tuesday, April 22, 2008 at 10:00 a.m.1 The parties are directed to meet and confer in accordance with FED. R. CIV. P. 26(f) no later than April 1, 2008, twenty-one (21) days before the conference.

The hearing will be conducted at 500 N. State Line, Third Floor Courtroom, Texarkana Texas, 75501. -1-

1

Dockets.Justia.com

Pre-Scheduling Conference Meeting When the parties confer with each other pursuant to Rule 26(f), in addition to the matters covered by Rule 26(f), the parties shall attempt in good faith to agree on certain matters, including deadlines for a proposed Docket Control Order (see Example Docket Control Order Attached), and shall file with the Court a joint written report outlining their proposals at least seventy-two (72) hours prior to the Rule 16 Scheduling Conference. The parties must include the following matters in the joint conference report and be prepared to discuss such matters at the Scheduling Conference: (1) A factual and legal description of the case which also sets forth the elements of each cause of action and each defense; The date the Rule 26(f) conference was held, the names of the those persons who were in attendance, and the parties they represent; A list of any cases that are related to this case and that are pending in any state or federal court with the respective case number and court; The expect length of trial; Whether the parties jointly agree to trial before a magistrate judge; Whether a jury demand has been made; Proposed modification of the deadlines in the Proposed Docket Control Order set forth in the attached Appendix A; The need for and modification of the proposed specific limits on discovery relating to claim construction, including depositions of witnesses, including expert witnesses, which are included herein; The entry of a Protective Order; The appointment of a Technical Advisor or Special Master; The number of claims being asserted;

(2)

(3)

(4) (5) (6) (7)

(8)

(9) (10) (11)

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(12) (13)

The possibility of early mediation; and Local Rules pertaining to attorney misconduct.

Proposed Deadlines for Docket Control Order The proposed deadlines for the Docket Control Order as well as the disclosure rules and discovery in patent case, set forth in the attached Appendix A, shall be discussed at the Scheduling Conference. The Court will not modify the trial date except for good cause shown. General Discovery Order After a review of the pleaded claims and defenses in this action and in furtherance of the management of the Court's docket under FED. R. CIV. P. 16, it is ordered as follows: 1. Protective Orders: Upon the request of any party, the Court shall enter a Protective Order, which is agreed to by all parties. If the parties are unable to come to agreement, they shall submit competing motions detailing specific areas of both agreement and disagreement as well as a proposed order. Any party may oppose the issuance of or move to modify the terms of the Protective Order for good cause. 2. Discovery Limitations: At the Scheduling Conference, the Court shall also discuss limiting discovery in this action to the disclosures provided for in the Proposed Docket Control Order together with 30 interrogatories per side, 100 requests for admissions per side, 100 hours for depositions of fact witnesses per side (The deposition of each witness shall be limited to a maximum of seven (7) hours, which may be increased by no more than one (1) hour upon agreement of the parties. However, each 30(b)(6) witness may be deposed for a maximum of ten (10) hours), the deposition of all expert witnesses shall be limited to a maximum of ten (10) hours per a witness. "Side" means a party or a group of parties with a common -3-

interest. Any party may move to modify these limitations for good cause. All deposition to be read into evidence or shown in court as part of the parties' case-in-chief shall be EDITED so as to exclude all unnecessary, repetitious, and irrelevant testimony; ONLY those portions which are relevant to the issues in controversy shall be read into evidence or shown in open court. Parties SHALL limit total deposition time to no more than one hour per deposition to be read or shown in court. 3. Privileged Information: There is no duty to disclose privileged documents or information. Once the parties have exchanged privilege logs, 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 the parties have no disputes concerning the privileged documents or information, then the parties shall inform the Court of that fact. 4. Duty to Supplement: After disclosure is made pursuant to the Court's Docket Control 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 the information disclosed was either incomplete or incorrect when made, or is no longer complete or true. 5. Disputes: Counsel are directed to contact the chambers of the undersigned for any "hotline" disputes before contacting the Discovery Hotline provided by Local Rule CV-26(f). If the undersigned is not available, the parties shall proceed in accordance with Local Rule CV26(f). Other General Rules 1. No Excuses: A party is not excused from the requirements of this Discovery Order or the Court's Docket Control Order because it has not fully completed its investigation of the case,

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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. 2. Local Rule CV-7(d): The parties are directed to Local Rule CV-7(d) which provides, in part, that "[i]n the event a party fails to oppose a motion in the manner prescribed herein, the court will assume that the party has no opposition." Local Rule CV-7(e) provides that a party opposing a motion has 15 days in which to serve and file supporting documents and briefs, after which the Court will consider the submitted motion for decision. 3. The Court will refuse to entertain any discovery motion filed after the date of this Order unless the movant advises the Court within the body of the motion that counsel for the parties have first met and conferred in person, with local counsel present, in a good faith effort to resolve the matter. This provision applies only to discovery matters and requires only that counsel from those parties that are in disagreement to meet in person. Lastly, this meet and confer provisions only requires the presence of such counsel having authority to resolve the matter in dispute. The following excuse will not warrant a continuance nor justify a failure to comply with the discovery deadline: The fact that one or more of the attorneys is set for trial in another court on the same day, unless the other setting was made prior to the date of this order or was made as a special provision for the parties in the other case. 4. The parties shall make a good faith effort to adhere to page limits provide by the Local Rules and shall not exceed such page limits without first receiving leave of court upon a showing of good cause. Any effort to avoid these page limits, e.g. submitting each issue raised on summary judgment in a separate motion, shall be closely scrutinized.

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.

IT IS SO ORDERED.

SIGNED this 11th day of March, 2008.

____________________________________ DAVID FOLSOM UNITED STATES DISTRICT JUDGE

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APPENDIX A IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION COMPANY A, Plaintiff, v. COMPANY B, Defendant. § § § § § CIVIL ACTION NO. X:XX-CV-XXX (DF) § § § § §

EXAMPLE DOCKET CONTROL ORDER

STEP 1

ACTION Initial Case Management Conference Patentee serves Disclosure of Asserted Claims and Preliminary Infringement Contentions of a reasonable number of representative claims Patentee makes Document Production Accompanying Disclosure Initial Disclosures

RULE Patent L.R. 2-1 FRCP 26(f) Patent L.R. 3-1

DATE DUE

2

No later than 10 days before the initial management conference.

3

Patent L.R. 3-2

Same as 2

4

FRCP 26(a)(1)

At or within 14 days of initial management conference

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5

Accused Infringer serves Preliminary Invalidity Contentions Accused Infringer makes Document Production Accompanying Preliminary Invalidity Contentions All parties make Exchange of Proposed Terms and Claim Elements for Construction Patentee shall limit the number of asserted claims to no more than ten (10) and notify the accused infringer and Court All parties meet and confer to discuss list of Proposed Terms and Claim Elements for Construction Deadline for early mediation at the Parties' request All parties make Exchange of Preliminary Claim Constructions and Extrinsic Evidence All parties meet and confer to discuss Preliminary Claim Constructions and Extrinsic Evidence

Patent L.R. 3-3

Not later than 45 days after Patentee serves preliminary infringement contentions Same as 5

6

Patent L.R. 3-4

7

Patent L.R. 41(a)

Not later than 10 days after Accused infringer serves preliminary invalidity contentions

8

After 7 but before 9

9

Patent L. R. 41(b)

After 8 but before 11

10

11

Patent L. R. 4-2

Not later than 20 days after 7

12

Patent L. R. 42©)

After 11 but before 13

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13

All parties jointly file Joint Claim Construction and Prehearing Statement Deadline to join other parties without leave of Court, which shall be at least 60 days before the deadline for filing dispositive motions Deadline to file amended pleadings without leave of Court, which shall be at least 30 days before the deadline for dispositive motions Completion of Claim Construction Discovery Patentee files opening claim construction brief Accused Infringer files responsive claim construction brief Patentee files reply brief on claim construction ONLY WITH LEAVE OF COURT Accused infringer files sur-reply brief on claim construction Parties file Join Claim Construction Chart

Patent L. R. 4-3

Not later than 60 days after 5

14

Same as 13

15

16

Patent L. R. 4-4

Not later than 30 days after 13

17

Patent L. R. 45(a) Patent L. R. 45(b) Patent L. R. 45©)

Not later than 45 days after 13

18

Not later than 14 days after 17

19

Not later than 7 days after 18

20

Not later than 7 days after 19

21

Patent L. R. 45(d)

At least 10 days before Claim Construction Hearing

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22

Pre-hearing Conference and technical tutorial if necessary Claim Construction Hearing Court's Claim Construction Ruling Patent L. R. 4-6

The day before the Claim Construction Hearing or the day of the Claim Construction Hearing At least 2 weeks after 20 On or about (3 weeks afer 23) subject to the Court's scheduling and/or use of a technical advisor <DO NOT PUT IN A DATE> Patent L. R. 36(a) On or about 30 days after claim construction ruling <DO NOT PUT IN A DATE> On or about 40 days after claim construction ruling <DO NOT PUT IN A DATE> On or about 40 days after claim construction ruling <DO NOT PUT IN A DATE>

23 24

25

Patentee makes Final Infringement Contentions Accused Infringer serves Preliminary Unenforceability Contentions Accused Infringer makes Document Production Accompanying Preliminary Unenforceability Contentions Accused Infringer makes Final Invalidity Contentions Accused Infringer makes disclosure relating to willfulness Accused Infringer makes Final Unenforceability Contentions

26

27

28

Patent L.R. 36(b) Patent L.R. 3-8

On or about 50 days after claim construction ruling <DO NOT PUT IN A DATE> On or about 50 days after claim construction ruling <DO NOT PUT IN A DATE> On or about 60 days after claim construction ruling <DO NOT PUT IN A DATE>

29

30

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31

Deadline for completion of all fact discovery, which shall be at least 90 days before the final pretrial conference Deadline for disclosure of expert testimony on issues for which a party bears the burden of proof Deadline for disclosure of rebuttal expert testimony Deadline for late mediation at the Parties' request Deadline for completion of expert discovery Deadline for objections to other parties' expert witnesses Deadline for filing dispositive motions, including motions on invalidity and unenforceability, which shall be at least 75 days before the initial pretrial conference Deadline for filing all Daubert motions Deadline for parties to make pretrial disclosures FRCP 26(a)(3) FRCP 26(a)(2) L.R. CV-26(b)

On or about 80 days after claim construction ruling <DO NOT PUT IN A DATE>

32

On or about 90 days after claim construction ruling <DO NOT PUT IN A DATE>

33

FRCP 26(a)(2) L.R. CV-26(b)

On or about 110 days after claim construction ruling <DO NOT PUT IN A DATE>

34

35

30 days after rebuttal expert testimony

36

After 35

37

At least 75 days before initial pretrial conference

38 39

Same as 37 At least 30 days before initial pretrial conference

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40

Patentee to provide to other parties its information for Joint Final Pretrial Order, Proposed Jury Instruction and Verdict Form Defendant and Thirdparties to Provide to Patentee their information for Joint Final Pretrial Order, Proposed Jury Instruction and Verdict Form
P a r t ie s to file Proposed J o in t Final Pretrial Order, P r o p o s e d Jury I n s tr u c t io n s , Joint Verdict F o r m s and M o t i o n s in L i m in e . Prior to initial p r e t r ia l conference, p a r t ie s shall confer with e a c h other regarding the o t h e r party's M o t i o n in L i m in e , deposition d e s i g n a t i o n s , and exhibit a n d shall submit to the C o u r t in writing any o b je c t io n s they may have t o the other party's M o tio n s in Limine, d e p o s i t io n designations, a n d exhibits. I n it ia l Pretrial C o n f e r e n c e and hearing o n M o t i o n s in Limine if r e q u i r e d and hearing on o b je c t io n s to deposition d e s i g n a t io n s and exhibits F i n a l Pretrial Conference b e f o r e Judge David F o ls o m J u r y Selection before J u d g e David Folsom

At least 30 days before initial pretrial conference

41

At least 30 days before initial pretrial
c on fe re n ce

42

A t least 2 weeks before initial pretrial conference

43

TBD

44

45

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APPENDIX B

FINAL PRE-TRIAL CONFERENCE DATES* FOR JUDGE DAVID FOLSOM

Aril 7, 2008 May 8, 2008 June 2, 2008 July 7, 2008 August 4, 2008 September 2, 2008 November 3, 2008 December 1, 2008 January 5. 2009 February 2, 2009

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