Revised 2/15/2023
For Patent Cases
SCHEDULING ORDER
This ___ day of ______ , 20__, the Court having conducted an initial Rule 16 scheduling
and planning conference pursuant to Federal Rule of Civil Procedure 16(b) and Local Rule 16.1 on
_______________, 20__, 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 ORDERED that:
1. 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 _____________,
20__.
2. Discovery. 1 All discovery in this case shall be initiated so that it will be completed
on or before _______________, 20__. Unless otherwise ordered by the Court, the limitations on
discovery set forth in Local Rule 26.1 shall be strictly observed.
a. Rule 26(a)(1) Initial Disclosures. Unless otherwise agreed to by the parties,
the parties shall make their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1)
within five (5) days of the date of this Order.
b. E-Discovery Default Standard. If they have not already done so, the parties
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Should the parties agree to modify the number of depositions under FED. R. CIV. P.
30, the number of allowed interrogatories under Rule 33 or limit the number of requests for
production and/or requests for admission under Rules 34 and 36 respectively, they shall include
the appropriate proposed provisions in this Order.
are to review the Default Standard for Discovery of Electronic Documents, which is posted on
Magistrate Judge Fallon’s section of the Court’s website (http://www.ded.uscourts.gov) under the
“Guidelines” tab, and is incorporated herein by reference.
c. Document Production. Document production shall be substantially
complete on or before ______________.
d. Interrogatories. A maximum of ___ interrogatories shall be served by each
party to any other party.
e. Contention Interrogatories. In the absence of agreement among the parties,
contention interrogatories, if filed, shall first be addressed by the party with the burden of proof no
later than the date established for the completion of document production, with the responsive
answers due within thirty (30) days thereof. The adequacy of all such 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.
f. Requests for Admission. A maximum of ___ requests for admission shall
be served by each party to any other party.
g. Depositions.
i. Timing. In the absence of agreement among the parties or by order of
the court, no deposition (other than those noticed under Fed. R. Civ. P. 30(b)(6)) shall be scheduled
prior to the completion of document production.
ii. Limitation on Hours for Deposition Discovery. Each side is limited to
a maximum of ___ hours for taking fact depositions.
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iii. 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.
h. Disclosure of Expert Testimony.
i. For the party who has the initial burden of proof on the subject
matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on or before
_____________, 20__.
ii. The supplemental disclosure to contradict or rebut evidence on the
same matter identified by another party is due on or before ______________, 20__.
iii. Reply expert reports from the party with the initial burden of proof
are due on or before ________.
iv. No other 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.
i. Objections to Expert Testimony. To the extent any objection to expert
testimony is made pursuant to the principles announced in Daubert v. Merrell Dow Pharm., 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.
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j. Fact Witnesses to be Called at Trial.
i. Within one (1) month following the close of expert discovery, each
party shall serve on the other parties a list of each fact witness (including any expert witness who
is also expected to give fact testimony), who has previously been disclosed during discovery and
that it intends to call at trial.
ii. Within one (1) month of receipt of such fact witness list, each party
shall serve a list of each rebuttal fact witness that it intends to call at trial.
iii. The parties shall have the right to depose any such fact witnesses
who have not previously been deposed in this case. Such deposition shall be held within one (1)
month after service of the list of rebuttal fact witnesses and shall be limited to twenty (20) hours
per side in the aggregate unless extended by agreement of the parties or upon order of the court
upon good cause shown.
k. Discovery Matters and Disputes Relating to Protective Orders.
i. Should counsel find they are unable to resolve a discovery matter
or those other matters covered by this paragraph, 2 the moving party (i.e., the party seeking relief
from the Court) shall file a “[Joint] Motion for Teleconference To Resolve [Protective Order or
Discovery] Dispute.” The suggested text for this motion can be found in Magistrate Judge
Fallon’s section of the Court’s website in the “Forms” tab, under the heading “Discovery
Matters–Motion to Resolve Discovery Disputes.”
Counsel are expected to verbally discuss the issues/concerns before seeking the Court’s
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intervention.
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ii. The Court will thereafter order a discovery telephone conference
and deadlines for submissions. On the date set by the Court, generally not less than seventy-two
(72) hours prior to the conference, excluding weekends and holidays, the party seeking relief shall
file with the Court a letter, not to exceed four (4) pages, in no less than 12-point font, outlining the
issues in dispute and its position on those issues. This submission shall include a proposed order,
attached as an exhibit, setting out the nature of the relief requested. The parties shall file any
exhibits associated with their respective letter submissions as separate, individual attachments
within the docket entry for the letter.
iii. On the date set by the Court, generally not less than forty-eight (48)
hours prior to the conference, excluding weekends and holidays, any party opposing the
application for relief may file a letter, not to exceed four (4) pages, in no less than 12-point font,
outlining that party’s reason for its opposition.
iv. Two (2) courtesy copies of the letters are to be hand delivered to the
Clerk’s Office within one hour of e-filing. All courtesy copies shall be double-sided.
v. Should the Court find further briefing necessary upon conclusion of
the telephone conference, the Court will order it.
vi. Disputes or issues regarding protective orders, or motions for
extension of time for briefing case dispositive motions which are related to discovery matters are
to be addressed in accordance with this paragraph.
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 of this
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Order. Should counsel be unable to reach an agreement on a proposed form of protective order,
counsel must follow the provisions of Paragraph 2(j) above.
Any proposed protective order should include the following paragraph:
Other Proceedings. By entering this order and limiting the
disclosure of information in this litigation, 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 in other proceedings 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 party may have an opportunity to appear
and be heard in the other proceeding.
4. Papers Filed Under Seal. When filing papers under seal, counsel should deliver
to the Clerk an original and one (1) copy of the papers. In accordance with section G of the
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 one (1) courtesy copy of 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.
6. Interim Status Report. On ______________, 20__, counsel shall submit a joint
interim report to the Court on the nature of the matters in issue and the progress of discovery to
date.
7. Status Conference. On ___________________, 20__, the Court will hold a Rule
16(a), (b) and (c) conference by telephone with counsel beginning at ______ _.m. Plaintiff’s
counsel shall initiate the telephone call. At the time of this conference, counsel shall also be
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prepared to discuss the progress, if any, of settlement discussions and shall be prepared to discuss
the possibility of setting up a settlement conference with the Court, counsel and their clients. If all
parties agree that there is nothing to report, nor anything to add to the interim status report or to
this order, they shall notify the Court in writing before the conference is scheduled to occur, and
the conference will be taken off of the Court’s calendar.
8. Claim Construction Issue Identification. On or before __________, 20__, 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 to exchanging that list, the parties will meet and confer to prepare a
Joint Claim Construction Chart to be filed no later than _________, 20__. 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. A copy of the
patent(s) in issue as well as those portions of the intrinsic record relied upon shall be submitted
with this Joint Claim Construction Chart. In this joint submission, the parties shall not provide
argument. Each party shall file concurrently with the Joint Claim Construction Chart a “Motion
for Claim Construction” that requests the Court to adopt the claim construction position(s) of that
party set forth in the Joint Claim Construction Chart. The motion shall not contain any argument
and shall simply state that the party “requests” that the Court adopt the claim construction
position(s) of [the party] set forth in the Joint Claim Construction Chart (D.I. [ ]).”
9. Claim Construction Briefing. The Plaintiff shall serve, but not file, its opening
brief, not to exceed 20 pages, on __________. The Defendant shall serve, but not file, its answering
brief, not to exceed 30 pages, on ____________. The Plaintiff shall serve, but not file, its reply
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brief, not to exceed 20 pages, on ______________. The Defendant shall serve, but not file, its sur-
reply brief, not to exceed 10 pages, on __________. No later than __________, 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.
JOINT CLAIM CONSTRUCTION BRIEF
I. Agreed-upon Constructions
II. Disputed Constructions
A. [TERM 1]
1. Plaintiff’s Opening Position
2. Defendant’s Answering Position
3. Plaintiff’s Reply Position
4. Defendant’s Sur-Reply Position
B. [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 appendix, the parties shall submit them in a
Joint Appendix.
10. Beginning at ____ _.m. on _______________, 20__, the Court will hear evidence
and argument on claim construction. The parties shall notify the Court, by joint letter submission,
no later than the date on which the Joint Claim Construction Brief is due: (i) whether they request
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leave to present testimony at the hearing; and (ii) the amount of time they would like to have
allocated to them for the hearing.
11. The court shall issue its decision on claim construction on ___________, 20__.
12. Case Dispositive Motions.
All case dispositive motions, an opening brief, and affidavits, if any, in support of the
motion shall be served and filed on or before ______________, 20__ [a date approximately four
months prior to the pretrial conference]. Briefing will be presented pursuant to the Court’s Local
Rules, except as modified by this Order. If the matter is scheduled for a bench trial, no case
dispositive motions shall be filed without prior authorization of the Court. No case-dispositive
motion under Rule 56 may be filed more than ten (10) days before the above date without leave of
the Court.
a. Concise Statement of Facts Requirement. Any motion for summary
judgment shall be accompanied by a separate concise statement, not to exceed six pages, which
details each material fact that 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.
b. Any party opposing the motion shall include with its opposing papers a
response to the moving party’s concise statement, not to exceed six 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
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
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motion may also include with its opposing papers a separate concise statement, not to exceed four
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.
c. The moving party shall include with its reply papers a response to the
opposing party’s concise statement of facts, not to exceed four pages, on a paragraph-by-paragraph
basis.
d. 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. 3
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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.
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e. Citations to exhibits. Any reference to exhibits in the briefs must refer to
the specific pages of the exhibit proffered in support of a party’s argument. If the exhibit is a
deposition, both the page and line numbers must be specified. 4
13. Applications by Motion. Except as otherwise specified herein, any application to
the Court shall be by written motion filed with the Clerk. Any non-dispositive motion should
contain the statement required by Local Rule 7.1.1.
14. Pretrial Conference. On _________________, 20__, the Court will hold a Pretrial
Conference in Court with counsel beginning at ___ _.m. [a date approximately two to four weeks
prior to the requested trial date]. 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 with
the information required by the form of Final Pretrial Order which accompanies this Scheduling
Order on or before [a date 7 days before the Pretrial Conference], 20__. Unless otherwise ordered
by the Court, the parties shall comply with the time frames set forth in Local Rule 16.3(d)(1)-(3)
for the preparation of the joint proposed final pretrial order. The Court will advise the parties at or
before the above-scheduled pretrial conference whether an additional pretrial conference will be
necessary.
15. 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.
For example, a reference to an exhibit that refers to the entire document will not be
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accepted and is not consistent with this provision.
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16. 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 party 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 and may be opposed by a maximum of
three (3) pages of argument, and the party making the in limine request may add a maximum of
one (1) 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.
17. Jury Instructions, Voir Dire, and Special Verdict Forms. Where a case is to be
tried to a jury, pursuant to Local Rules 47 and 51 the parties should file joint (i) proposed voir dire,
(ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict forms three
(3) full business days before the final pretrial conference. That submission shall be accompanied
by a courtesy copy containing electronic files of these documents in Microsoft Word format, which
shall be submitted to
[email protected].
18. Trial. This matter is scheduled for a __ day ___ [bench / jury] trial beginning at
9:30 a.m. on ________________, 20__ with the subsequent trial days beginning at 9:00 a.m. The
trial will be timed, as counsel will be allocated a total number of hours in which to present their
respective cases.
19. [Eliminate this paragraph in ANDA cases] Judgment on Verdict and Post-Trial
Status Report. Within seven days after a jury returns a verdict in any portion of a jury trial, the
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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.
20. Post-Trial Motions.
[For ANDA cases] The parties will address the post-trial briefing schedule and page limits
in the proposed final pretrial order.
[For non-ANDA cases] 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.
/s/
UNITED STATES MAGISTRATE JUDGE
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