FORM REPORT FOR ALL KEARNEY, J. CASES
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
: CIVIL ACTION
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v. : NO.
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REPORT OF RULE 26(f) MEETING
Under Federal Rule of Civil Procedure 26(f), this Court’s , 2022 Order and this
Court’s Policies, counsel for the parties conferred on (date) and submit the following report of
their meeting for the Court’s consideration at the initial pretrial conference on (date):
1. Discussion of specific claims, defenses and relevant issues
You should assume Judge Kearney read the complaint, pending motions and is familiar
with the claims. The full facts supporting those claims and defenses may be unknown. Counsel
shall concisely describe the facts supporting their claims and defenses.
Summarize your discussion of those issues on which the parties will need to conduct
discovery. Identify information each party needs in discovery as well as when and why. The
parties shall specifically address an initial focus on relevant information on the key issues
available from the most easily accessible sources. The parties shall list all undisputed facts.
2. Stipulated facts and insurance coverage and deductibles
The parties must stipulate as to facts not in dispute. We require stipulations to avoid
duplicative and unnecessary discovery, wasted time in depositions asking questions about names,
addresses and background or otherwise on dates which are undisputed, employment histories, etc.
While we do not expect you to stipulate to disputed facts at this early stage, we do expect a fulsome
description of undisputed facts. The parties must also disclose the insurance coverage, including
retainer or deductible, consistent with Rule 26(a)(1)(A).
3. Informal disclosures
Confirm each party’s compliance on timing, form and scope of informal disclosures
including date of exchange and detailed reason for a deviation from the Court’s scheduling Order.
4. Additional disclosures [in patent non-ANDA cases only].
In patent non-ANDA cases, the comprehensive joint report of the Rule 26(f) meeting
shall include proposed dates for the exchange, in steps, of required information to plan
for a Markman hearing as soon as practicable under Fed.R.Civ.P. 1:
a. 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. 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. Plaintiff shall produce an initial claim chart relating each known
accused product to the asserted claims each such product allegedly
infringes.
d. Defendant shall produce its initial invalidity contentions for each
asserted claim, as well as the known related invalidating
references.
e. The exchange of final infringement contentions.
f. Finally supplement, among other items, the identification of all
accused products and of all invalidity references.
g. Date for Markman hearing and scope of Markman hearing
5. Formal discovery
Discovery begins with the issuance of our Order setting the Initial Pretrial Conference.
Describe written discovery issued or taken to date including mandated disclosures under Rule
26(a). Indicate nature, sequence and timing of written discovery, as well as any need to conduct
discovery in phases to prepare for the filing of motions or for settlement discussions. The parties
shall address focusing discovery on the subjects and sources most clearly proportional to the case
needs. Specifically delineate what discovery will be conducted formally.
The discovery deadline will normally be no more than ninety days after the initial Rule 16
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Order scheduling the Initial Pretrial Conference. The parties need to describe believe there are
compelling reasons for a different discovery period if warranted. The parties shall also disclose a
need for an Order under Federal Rule of Evidence 502.
6. Electronic discovery
The parties are required to address procedures to preserve electronically stored
information, to avoid inadvertent privilege waivers, and to determine the form in which electronic
information will be produced. The cost of producing the information must be discussed and be
addressed in this report.
It is expected that the parties will reach an agreement on how to conduct electronic
discovery. In the event the parties cannot reach such an agreement before the Rule 16 scheduling
conference, the court will enter an order incorporating default standards. The default order can be
viewed under Judge Kearney’s policies at www.paed.uscourts.gov.
7. Expert witness disclosures
Indicate agreement on anticipated testimony of expert witnesses, including whether
depositions of experts will be needed.
The parties should expect that the Court requires expert reports to be exchanged
simultaneously, witness rebuttal reports required shortly thereafter, and expert discovery to be
completed with fact discovery.
8. Settlement or resolution
All cases will be sent to the Magistrate Judge or private mediation for early settlement
discussions. The parties must familiarize themselves with Local Rule 53.3 before responding.
Fully explain when mediation would be appropriate.
9. Trial
A firm trial date will be scheduled at or shortly after the pre-trial conference. Please
advise of trial attachments (not pool listings), pre-paid vacation, medical plans or other irreversible
conflicts for lead trial counsel in the following four (4) to eight (8) months.
10. Referral to Magistrate Judge
Please provide a statement whether all parties agree to a referral of this case to a Magistrate
Judge for trial. 1
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Magistrate Judges are authorized, with agreement of the parties, to try any civil case, jury or
non-jury, with appeals filed directly with the Court of Appeals.
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11. Other matters
Describe your discussion and agreement on matters not addressed above but which will
affect the just and timely resolution of the case under Fed.R.Civ.P. 1.
(Counsel for Plaintiff)
(Counsel for Defendant)
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