IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
[PLAINTIFF], )
)
Plaintiff, )
)
v. ) C.A. No. 00-0000 (MN)
)
[DEFENDANT], )
)
Defendant. )
[PROPOSED] SCHEDULING ORDER [PATENT, NON-ANDA]
This day of , 20____, the Court having conducted an
initial Rule 16(b) scheduling conference pursuant to Local Rule 16.1(b), and the parties having
determined after discussion that the matter cannot be resolved at this juncture by settlement,
voluntary mediation, or binding arbitration;
IT IS HEREBY ORDERED that:
1. Rule 26(a)(l) Initial Disclosures and E-Discovery Default Standard. Unless
otherwise agreed to by the parties, the parties shall make their initial disclosures pursuant to
Federal Rule of Civil Procedure 26(a)(l) within five (5) days of the date the Court enters this Order.
If they have not already done so, the parties are to review the Court’s Default Standard for
Discovery, Including Discovery of Electronically Stored Information (‘‘ESI”), which is posted at
http://www.ded.uscourts.gov (see Other Resources, Default Standard for Discovery) and is
incorporated herein by reference.
2. Joinder of Other Parties and Amendment of Pleadings. All motions to join other
parties, and to amend or supplement the pleadings, shall be filed on or before [DATE]. Unless
otherwise ordered by the Court, any motion to join a party or motion to amend the pleadings shall
be made pursuant to the procedures set forth in Paragraphs 8(g) and 9.
3. Application to Court for Protective Order. Should counsel find it will be necessary
to apply to the Court for a protective order specifying terms and conditions for the disclosure of
confidential information, counsel should confer and attempt to reach an agreement on a proposed
form of order and submit it to the Court within ten (10) days from the date the Court enters this
Order. Should counsel be unable to reach an agreement on a proposed form of order, counsel must
follow the provisions of Paragraph 8(g) below.
Any proposed protective order must include the following paragraph:
Other Proceedings. By entering this order and limiting the disclosure
of information in this case, the Court does not intend to preclude
another court from finding that information may be relevant and
subject to disclosure in another case. Any person or party subject to
this order who becomes subject to a motion to disclose another
party’s information designated “confidential” [the parties should list
any other level of designation, such as “highly confidential,” which
may be provided for in the protective order] pursuant to this order
shall promptly notify that party of the motion so that the party may
have an opportunity to appear and be heard on whether that
information should be disclosed.
4. Papers Filed Under Seal. In accordance with section G of the Revised
Administrative Procedures Governing Filing and Service by Electronic Means, a redacted version
of any sealed document shall be filed electronically within seven (7) days of the filing of the sealed
document.
5. Courtesy Copies. The parties shall provide to the Court two (2) courtesy copies
of all briefs and any other document filed in support of any briefs (i.e., appendices, exhibits,
declarations, affidavits etc.). This provision also applies to papers filed under seal. All courtesy
copies shall be double-sided.
6. ADR Process. This matter is referred to a magistrate judge to explore the possibility
of alternative dispute resolution.
7. Disclosures. Absent agreement among the parties, and approval of the Court:
2
(a) By [DATE], Plaintiff shall identify the accused product(s), including
accused methods and systems, and its damages model, as well as the asserted patent(s) that the
accused product(s) allegedly infringe(s). Plaintiff shall also produce the file history for each
asserted patent.
(b) By [DATE], Defendant shall produce core technical documents related to
the accused product(s), sufficient to show how the accused product(s) work(s), including but not
limited to non-publicly available operation manuals, product literature, schematics, and
specifications. Defendant shall also produce sales figures for the accused product(s).
(c) By [DATE], Plaintiff shall produce an initial claim chart relating each
known accused product to the asserted claims each such product allegedly infringes.
(d) By [DATE], Defendant shall produce its initial invalidity contentions for
each asserted claim, as well as the known related invalidating references.
(e) By [DATE], Plaintiff shall provide final infringement contentions.
(f) By [DATE], Defendant shall provide final invalidity contentions.
8. Discovery. Unless otherwise ordered by the Court or agreed to by parties, the
limitations on discovery set forth in the Federal Rules shall be strictly observed.
(a) Fact Discovery Cut Off. All fact discovery in this case shall be initiated so
that it will be completed on or before [DATE].
(b) Document Production. Document production shall be substantially
complete by [DATE].
(c) Requests for Admission. A maximum of ___ requests for admission are
permitted for each side.
3
(d) Interrogatories.
i. A maximum of ___ interrogatories, including contention
interrogatories, are permitted for each side.
ii. The Court encourages the parties to serve and respond to contention
interrogatories early in the case. In the absence of agreement among the parties, contention
interrogatories, if filed, shall first be addressed by the party with the burden of proof. The adequacy
of all interrogatory answers shall be judged by the level of detail each party provides (i.e., the more
detail a party provides, the more detail a party shall receive).
(e) Depositions.
i. Limitation on Hours for Deposition Discovery. Each side is limited
to a total of __ hours of taking testimony by deposition upon oral examination.
ii. Location of Depositions. Any party or representative (officer,
director, or managing agent) of a party filing a civil action in this district court must ordinarily be
required, upon request, to submit to a deposition at a place designated within this district.
Exceptions to this general rule may be made by order of the Court. A defendant who becomes a
counterclaimant, cross-claimant, or third-party plaintiff shall be considered as having filed an
action in this Court for the purpose of this provision.
(f) Disclosure of Expert Testimony.
i. Expert Reports. For the party who has the initial burden of proof on
the subject matter, the initial Federal Rule of Civil Procedure 26(a)(2) disclosure of expert
testimony is due on or before [DATE]. The supplemental disclosure to contradict or rebut
evidence on the same matter identified by another party is due on or before [DATE]. Reply expert
reports from the party with the initial burden of proof are due on or before [DATE]. No other
4
expert reports will be permitted without either the consent of all parties or leave of the Court.
Along with the submissions of the expert reports, the parties shall advise of the dates and times of
their experts’ availability for deposition.
ii. Expert Report Supplementation. The parties agree they [will] [will
not] permit expert declarations to be filed in connection with motions briefing (including case-
dispositive motions).
iii. Objections to Expert Testimony. To the extent any objection to
expert testimony is made pursuant to the principles announced in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), as incorporated in Federal Rule of Evidence 702, it
shall be made by motion no later than the deadline for dispositive motions set forth herein, unless
otherwise ordered by the Court. Briefing on such motions is subject to the page limits set out in
connection with briefing of case dispositive motions.
iv. Expert Discovery Cut-Off. All expert discovery in this case shall be
initiated so that it will be completed on or before [DATE].
(g) Discovery Matters and Disputes Relating to Protective Orders.
i. Any discovery motion filed without first complying with the
following procedures will be denied without prejudice to renew pursuant to these procedures.
ii. Should counsel find, after a reasonable effort pursuant to Local
Rule 7.1.1 that they are unable to resolve a discovery matter or a dispute relating to a protective
order, the parties involved in the discovery matter or protective order dispute shall contact the
Court’s Judicial Administrator to schedule an argument.
iii. On a date to be set by separate order, generally not less than four (4)
days prior to the conference, the party seeking relief shall file with the Court a letter, not to exceed
5
three (3) pages, outlining the issues in dispute and its position on those issues. On a date to be set
by separate order, but generally not less than three (3) days prior to the conference, any party
opposing the application for relief may file a letter, not to exceed three (3) pages, outlining that
party's reasons for its opposition.
iv. The parties shall provide to the Court two (2) courtesy copies of its
discovery letter and any other document filed in support of any letter (i.e., appendices, exhibits,
declarations, affidavits etc.). This provision also applies to papers filed under seal. All courtesy
copies shall be double-sided.
v. Should the Court find further briefing necessary upon conclusion of
the conference, the Court will order it. Alternatively, the Court may choose to resolve the dispute
prior to the conference and will, in that event, cancel the conference.
9. Motions to Amend / Motions to Strike.
(a) Any motion to amend (including a motion for leave to amend) a pleading
or any motion to strike any pleading or other document shall be made pursuant to the discovery
dispute procedure set forth in Paragraph 8(g) above.
(b) Any such motion shall attach the proposed amended pleading as well as a
“redline” comparison to the prior pleading or attach the document to be stricken.
10. Technology Tutorials. Although technology tutorials are not required by the Court,
they are appreciated and, if any party chooses to file such a tutorial, it shall be submitted on or
before the date that the Joint Claim Construction Brief is filed.
11. Claim Construction Issue Identification. On [DATE], the parties shall exchange a
list of those claim term(s)/phrase(s) that they believe need construction and their proposed claim
construction of those term(s)/phrase(s). This document will not be filed with the Court. Subsequent
6
to exchanging that list, the parties will meet and confer to prepare a Joint Claim Construction Chart
to be submitted two weeks prior to service of the opening claim construction brief. The parties’
Joint Claim Construction Chart should identify for the Court the term(s)/phrase(s) of the claim(s)
in issue, and should include each party’s proposed construction of the disputed claim language
with citation(s) only to the intrinsic evidence in support of their respective proposed constructions.
Intrinsic evidence (including copies of the patent(s) at issue) shall NOT be attached to the joint
claim construction chart and, instead, the parties shall include a joint appendix with the joint claim
construction brief, and the joint appendix shall include a copy of the patent(s) at issue and portions
of all relevant intrinsic evidence that would have otherwise been included with the joint claim
construction chart, as well as any additional evidence cited in the parties’ briefing.
12. Claim Construction Briefing. The Plaintiff shall serve, but not file, its opening
brief, not to exceed 20 pages, on [DATE]. The Defendant shall serve, but not file, its answering
brief, not to exceed 30 pages, on [DATE]. The Plaintiff shall serve, but not file, its reply brief,
not to exceed 20 pages, on [DATE]. The Defendant shall serve, but not file, its sur-reply brief,
not to exceed 10 pages, on [DATE]. No later than [DATE], the parties shall file a Joint Claim
Construction Brief. The parties shall copy and paste their unfiled briefs into one brief, with their
positions on each claim term in sequential order, in substantially the form below. If the joint brief
as submitted is more than 80 pages, the parties must certify that the page limits (or equivalent word
counts) in the Scheduling Order have been complied with and provide a brief explanation
(e.g., formatting issues, listing of agreed-upon terms) as to why the brief is longer than 80 pages.
7
JOINT CLAIM CONSTRUCTION BRIEF
I. Agreed-Upon Constructions
II. Disputed Constructions
[TERM 1]
1. Plaintiff’s Opening Position
2. Defendant’s Answering Position
3. Plaintiff’s Reply Position
4. Defendant’s Sur-Reply Position
[TERM 2]
1. Plaintiff’s Opening Position
2. Defendant’s Answering Position
3. Plaintiff’s Reply Position
4. Defendant’s Sur-Reply Position
The parties need not include any general summaries of the law relating to claim construction. If
there are any materials that would be submitted in an index, the parties shall submit them in a Joint
Appendix.
13. Hearing on Claim Construction. Beginning at _________ on [DATE], the Court
will hear argument on claim construction. The parties need not include any general summaries of
the law relating to claim construction in their presentations to the Court. The parties shall notify
the Court, by joint letter submission, no later than the date on which their joint claim construction
brief is filed: (i) whether they request leave to present testimony at the hearing; and (ii) the amount
of time they are requesting be allocated to them for the hearing.
Provided that the parties comply with all portions of this Scheduling Order, and any other
orders of the Court, the parties should anticipate that the Court will issue its claim construction
8
order within sixty (60) days of the conclusion of the claim construction hearing. If the Court is
unable to meet this goal, it will advise the parties no later than sixty (60) days after the conclusion
of the claim construction hearing.
14. Supplementation. Absent agreement among the parties, and approval of the Court,
no later than [DATE] the parties must finally supplement, inter alia, the identification of all
accused products and of all invalidity references.
15. Case Dispositive Motions.
(a) All case dispositive motions, an opening brief, and affidavits, if any, in
support of the motion shall be served and filed on or before [DATE] [a date approximately four
months prior to the pretrial conference, the four months being calculated from the conclusion of
the briefing]. Briefing will be presented pursuant to the Court’s Local Rules. No case dispositive
motion under Rule 56 may be filed more than ten (10) days before the above date without leave
of the Court.
(b) Concise Statement of Facts Requirement. Any motion for summary
judgment shall be accompanied by a separate concise statement, not to exceed six (6) pages, which
details each material fact which the moving party contends is essential for the Court’s resolution
of the summary judgment motion (not the entire case) and as to which the moving party contends
there is no genuine issue to be tried. Each fact shall be set forth in a separate numbered paragraph
and shall be supported by specific citation(s) to the record.
Any party opposing the motion shall include with its opposing papers a response to
the moving party’s concise statement, not to exceed six (6) pages, which admits or disputes the
facts set forth in the moving party’s concise statement on a paragraph-by-paragraph basis. To the
extent a fact is disputed, the basis of the dispute shall be supported by specific citation(s) to the
9
record. Failure to respond to a fact presented in the moving party’s concise statement of facts shall
indicate that fact is not in dispute for purposes of summary judgment. The party opposing the
motion may also include with its opposing papers a separate concise statement, not to exceed four
(4) pages, which sets forth material facts as to which the opposing party contends there is a genuine
issue to be tried. Each fact asserted by the opposing party shall also be set forth in a separate
numbered paragraph and shall be supported by specific citation(s) to the record.
The moving party shall include with its reply papers a response to the opposing
party’s concise statement of facts, not to exceed four (4) pages, on a paragraph-by-paragraph basis.
Failure to respond to a fact presented in the opposing party’s concise statement of facts shall
indicate that fact remains in dispute for purposes of summary judgment.
(c) Page limits combined with Daubert motion page limits. Each party is
permitted to file as many case dispositive motions as desired provided, however, that each SIDE
will be limited to a combined total of 40 pages for all opening briefs, a combined total of 40 pages
for all answering briefs, and a combined total of 20 pages for all reply briefs regardless of the
number of case dispositive motions that are filed. In the event that a party files, in addition to a
case dispositive motion, a Daubert motion to exclude or preclude all or any portion of an expert’s
testimony, the total amount of pages permitted for all case dispositive and Daubert motions shall
be increased to 50 pages for all opening briefs, 50 pages for all answering briefs, and 25 pages for
all reply briefs for each SIDE. 1
1
The parties must work together to ensure that the Court receives no more than a total of
250 pages (i.e., 50 + 50 + 25 regarding one side’s motions, and 50 + 50 + 25 regarding
the other side’s motions) of briefing on all case dispositive motions and Daubert
motions that are covered by this scheduling order and any other scheduling order entered
in any related case that is proceeding on a consolidated or coordinated pretrial schedule.
10
16. Applications by Motion. Except as otherwise specified herein, any application to
the Court shall be by written motion. Any non-dispositive motion should contain the statement
required by Local Rule 7.1.1.
17. Motions in Limine. Motions in limine shall not be separately filed. All in limine
requests and responses thereto shall be set forth in the proposed pretrial order. Each SIDE shall
be limited to three (3) in limine requests, unless otherwise permitted by the Court. The in limine
request and any response shall contain the authorities relied upon; each in limine request may be
supported by a maximum of three (3) pages of argument, may be opposed by a maximum of three
(3) pages of argument, and the side making the in limine request may add a maximum of one (l)
additional page in reply in support of its request. If more than one party is supporting or opposing
an in limine request, such support or opposition shall be combined in a single three (3) page
submission (and, if the moving party, a single one (1) page reply), unless otherwise ordered by the
Court. No separate briefing shall be submitted on in limine requests, unless otherwise permitted
by the Court.
18. Pretrial Conference. On [DATE], the Court will hold a pretrial conference in Court
with counsel beginning at __________. Unless otherwise ordered by the Court, the parties should
assume that filing the pretrial order satisfies the pretrial disclosure requirement of Federal Rule of
Civil Procedure 26(a)(3). The parties shall file with the Court the joint proposed final pretrial
order in compliance with Local Rule 16.3(c) and the Court’s Preferences and Procedures for Civil
Cases not later than seven (7) days before the pretrial conference. Unless otherwise ordered by
the Court, the parties shall comply with the timeframes set forth in Local Rule 16.3(d)(1)-(3) for
the preparation of the joint proposed final pretrial order.
11
The parties shall provide the Court two (2) double-sided courtesy copies of the joint
proposed final pretrial order and all attachments. The proposed final pretrial order shall contain a
table of contents and the paragraphs shall be numbered.
19. Jury Instructions, Voir Dire, and Special Verdict Forms. Where a case is to be
tried to a jury, pursuant to Local Rules 47.1(a)(2) and 51.1 the parties should file (i) proposed
voir dire, (ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict
forms seven (7) business days before the final pretrial conference. This submission shall be
accompanied by a courtesy copy containing electronic files of these documents, in Microsoft
Word format, which may be submitted by e-mail to
[email protected].
20. Trial. This matter is scheduled for a ___ day jury trial beginning at 9:30 a.m. on
[DATE], with the subsequent trial days beginning at 9:00 a.m. Until the case is submitted to the
jury for deliberations, the jury will be excused each day at 4:30 p.m. The trial will be timed, as
counsel will be allocated a total number of hours in which to present their respective cases.
21. Judgment on Verdict and Post-Trial Status Report. Within seven (7) days after
a jury returns a verdict in any portion of a jury trial, the parties shall jointly submit a form of
order to enter judgment on the verdict. At the same time, the parties shall submit a joint status
report, indicating among other things how the case should proceed and listing any post-trial
motions each party intends to file.
22. Post-Trial Motions. Unless otherwise ordered by the Court, all SIDES are limited
to a maximum of 20 pages of opening briefs, 20 pages of answering briefs, and 10 pages of reply
briefs relating to any post-trial motions filed by that side, no matter how many such motions are
filed.
The Honorable Maryellen Noreika
United States District Judge
12
Counsel Shall Provide a Chart of All Relevant Deadlines
EVENT DEADLINE
