Case 1:19-cv-00859-RTH Document 54 Filed 04/27/21 Page 1 of 3
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`In the United States Court of Federal Claims
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`No. 19-859
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`E-NUMERATE SOLUTIONS, INC. and
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`E-NUMERATE, LLC,
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`Plaintiffs,
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`v.
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`THE UNITED STATES,
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`Defendant
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`ORDER
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`On 23 April 2021, plaintiffs filed an unopposed motion to file a second amended
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`complaint. See Unopposed Mot. to File Second Am. Compl. Pursuant to Court of Federal
`Claims Rule 15(a)(2), ECF No. 50. The Court granted plaintiffs’ unopposed motion on 26 April
`2021, and plaintiffs filed their second amended complaint on 27 April 2021. Order, ECF No. 52;
`Second Amended Complaint, ECF No. 53. Concurrent with plaintiffs’ unopposed motion, the
`parties filed a joint status report jointly proposing “a schedule for claim construction proceedings
`that tracks the schedule previously entered by the Court.” Joint Status Report, ECF No. 51 at 2.
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`The only outstanding area of dispute between the parties on the schedule for claim
`construction “is the [date of] production of core technical documents by the Government
`pursuant to [the Court of Federal Claims Patent Rule] 7(a) for the additional government
`agencies named in the [second amended] complaint.” Id. Plaintiffs “request[] that the
`[g]overnment be ordered to make its production of technical documents . . . for all accused
`[g]overnment agencies on a rolling basis with production to be complete by September 27,
`2021.” Id. at 3. Plaintiffs claim mandating document production be complete by 27 September
`is “more than reasonable” given the government’s prior knowledge of plaintiffs’ intent to amend
`the complaint with the additional infringing agencies and the fact the government “has made no
`showing of good cause and/or complexity necessary” to warrant additional time beyond the
`deadline plaintiffs propose. Id. at 3. The government “requests that the Court stay the deadline
`as to the core technical documents . . . for the newly named agencies until four weeks after the
`claim construction . . . .” Id. at 7. In response to plaintiffs’ arguments, the government “disputes
`[p]laintiffs’ implication that it had a duty to collect documents as to all the newly asserted
`agencies prior to the filing of the Second Asserted Complaint,” states it “has already produced
`tens of thousands of pages of technical documents,” and argues “there is little to be gained by
`producing technical documents from numerous [g]overnment agencies other than inflicting an
`unnecessary burden to the [g]overnment.” Id. at 6–7.
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`Case 1:19-cv-00859-RTH Document 54 Filed 04/27/21 Page 2 of 3
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`As discussed with the parties in past status conferences and detailed in past orders, the
`Court adopted a claim construction schedule similar to the patent case management schedule of
`Judge Albright in the United States District Court, Western District of Texas. See, e.g. Order,
`ECF No. 36. Judge Albright’s patent case management schedule stays all discovery not
`necessary for claim construction absent agreement between the parties or certain “exceptional
`circumstances.” See Order Governing Proceedings – Patent Case (retrieved 27 April 2021). The
`Court allowed the parties to engage in third-party discovery because the government did not
`oppose plaintiffs’ request to begin third-party discovery prior to the conclusion of a Markman
`hearing. See Joint Preliminary Status Report, ECF No. 35 at 9.
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`The Court will adhere as strictly as possible to the Western District of Texas patent case
`management schedule previously tracked. The Supreme Court has identified “the power
`inherent in every court to control the disposition of the cases on its docket with economy of time
`and effort for itself, for counsel, and for litigants.” Landis v. North American Co., 299 U.S. 248,
`255–56 (1936). As one party opposes setting a deadline for the production of additional
`discovery before the Markman proceeding, the Court will not at this time diverge further from a
`schedule similar to Judge Albright’s patent case management schedule. For the foregoing
`reasons, the Court ADOPTS the following modified claim construction briefing schedule.
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`Event
`The government files an
`answer to plaintiffs’ second
`amended complaint or
`otherwise responds
`Plaintiffs serve preliminary
`infringement contentions
`The government serves
`preliminary invalidity
`contentions
`Parties exchange claim terms
`for construction
`Parties exchange proposed
`claim constructions
`Parties disclose extrinsic
`evidence they may rely upon
`for claim construction
`Deadline to meet and confer
`to narrow terms in dispute
`and exchange revised
`constructions
`Plaintiffs file their opening
`claim construction brief
`The government files its
`responsive claim construction
`brief
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`Prior Deadline
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`N/A
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`New Deadline
`11 May 2021
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`15 December 2020
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`8 June 2021
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`19 February 2021
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`6 July 2021
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`1 March 2021
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`20 July 2021
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`15 March 2021
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`3 August 2021
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`22 March 2021
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`10 August 2021
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`29 March 2021
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`17 August 2021
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`5 April 2021
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`24 August 2021
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`26 April 2021
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`14 September 2021
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`Case 1:19-cv-00859-RTH Document 54 Filed 04/27/21 Page 3 of 3
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`10 May 2021
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`28 September 2021
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`24 May 2021
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`12 October 2021
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`27 May 2021
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`19 October 2021
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`1 June 2021
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`26 October 2021
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`7 June 2021
`N/A
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`To be scheduled
`30 November 2021
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`Plaintiff file their reply claim
`construction brief
`The government files its sur-
`reply claim construction brief
`The parties submit the joint
`claim construction statement
`and propose dates for the
`Markman hearing in the first
`half of November
`If desired, parties may submit
`joint technical tutorial to the
`Court
`Markman hearing
`Deadline for the government
`to produce technical
`documents for additional
`agencies named in the second
`amended complaint
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`IT IS SO ORDERED.
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`s/ Ryan T. Holte
`RYAN T. HOLTE
`Judge
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