Case 1:14-cv-01430-CJB Document 504 Filed 04/25/22 Page 1 of 15 PageID #: 28179
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ELM 3DS INNOVATIONS, LLC,
`Plaintiff,
`
`v.
`SAMSUNG ELECTRONICS CO., LTD.., et al.,
`Defendants.
`
`C.A. No. 14-cv-1430-CJB
`
`JURY TRIAL DEMANDED
`
`SCHEDULING ORDER
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`This 23rd day of April, 2022, the Court having conducted an initial Rule 16 scheduling and
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`planning conference pursuant to Federal Rule of Civil Procedure 16(b) and Local Rule 16.1 on May
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`18, 2015, and the parties having determined after discussion that the matter cannot be resolved at
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`this juncture by settlement, voluntary mediation, or binding arbitration;
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`IT IS ORDERED that:
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`1.
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`Rule 26(a)(1) Initial Disclosures and E-Discovery Default Standard. This
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`deadline has already passed. The parties have exchanged these disclosures.
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`2.
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`Joinder of Other Parties and Amendment of Pleadings. This deadline has
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`already passed.
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`3.
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`Application to Court for Protective Order. This deadline has already passed.
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`The Court has entered a protective order. See D.I. 117.
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`4.
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`Papers Filed Under Seal. When filing papers under seal, counsel shall follow
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`the District Court’s policy on Filing Sealed Civil Documents in CM/ECF and section G of the
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`Administrative Procedures Governing Filing and Service by Electronic Means. A redacted version
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`of any sealed document shall be filed electronically within seven (7) days of the filing of the
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`sealed document.
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`Should any party intend to request to seal or redact all or any portion of a transcript of
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`a court proceeding (including a teleconference), such party should expressly note that intent at
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`Case 1:14-cv-01430-CJB Document 504 Filed 04/25/22 Page 2 of 15 PageID #: 28180
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`the start of the court proceeding. Should the party subsequently choose to make a request for
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`sealing or redaction, it must, promptly after the completion of the transcript, file with the Court
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`a motion for sealing/redaction, and include as attachments: (1) a copy of the complete transcript
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`highlighted so the Court can easily identify and read the text proposed to be sealed/redacted; and
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`(2) a copy of the proposed redacted/sealed transcript. With its request, the party seeking
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`redactions must demonstrate why there is good cause for the redactions and why disclosure of
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`the redacted material would work a clearly defined and serious injury to the party seeking
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`redaction.
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`5.
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`Courtesy Copies. The parties shall provide to the Court two (2) courtesy copies
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`of all briefs and any other document filed in support of any briefs (i.e., appendices, exhibits,
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`declarations, affidavits, etc.). This provision also applies to papers filed under seal. Unless ordered
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`differently by the Court, such copies must be provided to the Court by no later than noon the
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`business day after the filing is made electronically.
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`6.
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`Disclosures. Absent agreement among the parties, and approval of the Court:
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`a.
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` By September 14, 2022, Plaintiff shall elect no more than 36 total claims
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`and provide final infringement contentions.
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`b.
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`By October 12, 2022, Defendant shall elect no more than 36 prior art
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`references and provide final invalidity contentions.
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`c.
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`The parties, if they think it necessary, should set times in the schedule for
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`reducing the number of asserted claims and asserted prior art used for anticipation and
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`obviousness combinations. The usual points where the Court will consider such limits are before
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`claim construction and after a ruling on claim construction.
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`7.
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`Discovery. Unless otherwise ordered by the Court, the limitations on discovery
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`set forth in Local Rule 26.1 shall be strictly observed.
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`2
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`Case 1:14-cv-01430-CJB Document 504 Filed 04/25/22 Page 3 of 15 PageID #: 28181
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`a.
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`Discovery Cut Off. All discovery in this case shall be initiated so that it
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`will be completed on or before August 31, 2022.
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`b.
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`Document Production. Document production shall be substantially
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`complete by July 11, 2022.
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`c.
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`Requests for Admission. A maximum of 25 requests for admission are
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`permitted for each side. Deadline for service of Requests for Admission has passed, except that
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`Elm may serve any additional Requests for Admission related to the Representative Products no
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`later than July 18, 2022.
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`d.
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`Interrogatories.
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`i.
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`Each side has served the maximum allowable total of 30
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`interrogatories, except that Elm may serve no more than three additional interrogatories related to the
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`representative products by July 18, 2022. These limits include contention interrogatories.
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`ii.
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`The Court encourages the parties to serve and respond to contention
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`interrogatories early in the case. In the absence of agreement among the parties, contention
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`interrogatories, if served, shall first be addressed by the party with the burden of proof. The adequacy
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`of all interrogatory answers shall, in part, be judged by the level of detail each party provides; i.e., the
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`more detail a party provides, the more detail a party shall receive.
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`e.
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`Depositions.
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`i.
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`Limitation on Hours for Deposition Discovery. Plaintiff is limited to
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`a total of 75 hours of taking testimony of party fact witnesses by deposition upon oral examination,
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`excluding depositions of expert witnesses. Each Defendant is limited to 50 hours of taking testimony
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`of party fact witnesses by deposition upon oral examination, excluding depositions of expert
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`witnesses. The time limits under this Paragraph do not include third-party depositions taken pursuant
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`to Federal Rule of Civil Procedure 45. The time limitations set forth in Federal Rule of Civil Procedure
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`3
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`30(d)(1) shall apply, except where an individual is presented for a deposition pursuant to Rule 30(b)(6),
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`in which case a deposition may continue for multiple days, subject to the seven hour per day limit. By
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`agreement of the parties, depositions conducted in a foreign language will be allocated at a factor of
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`1.5, such that each 1.5 hours of deposition time in a foreign language will count as one deposition
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`hour.
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`ii.
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`Location of Depositions. Any party or representative (officer, director,
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`or managing agent) of a party filing a civil action in this Court must ordinarily be required, upon
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`request, to submit to a deposition at a place designated within this district. Exceptions to this general
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`rule may be made by order of the Court. A defendant who becomes a counterclaimant, cross-claimant,
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`or third-party plaintiff shall be considered as having filed an action in this Court for the purpose of
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`this provision.
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`f.
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`Disclosure of Expert Testimony.
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`i.
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`Expert Reports. For the party who has the initial burden of proof on
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`the subject matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on or before
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`November 16, 2022. The supplemental disclosure to contradict or rebut evidence on the same matter
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`identified by another party is due on or before December 22, 2022. Reply expert reports from the
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`party with the initial burden of proof are due on or before January 12, 2023. No other expert reports
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`will be permitted without either the consent of all parties or leave of the Court. Along with the
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`submissions of the expert reports, the parties shall advise of the dates and times of their experts’
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`availability for deposition.
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`ii.
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`Expert Report Supplementation. The parties agree they will not permit
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`expert declarations to be filed in connection with motions briefing (including case-dispositive motions,
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`apart).
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`4
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`iii.
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`Objections to Expert Testimony. To the extent any objection to expert
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`testimony is made pursuant to the principles announced in Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
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`579 (1993), as incorporated in Federal Rule of Evidence 702, it shall be made by motion no later than
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`the deadline for dispositive motions set forth herein, unless otherwise ordered by the Court. Briefing
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`on such motions is subject to the page limits set out in connection with briefing of case dispositive
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`motions.
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`g.
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`Discovery Matters and Disputes Relating to Protective Orders.
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`i.
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`Any discovery motion filed without first complying with the following
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`procedures will be denied without prejudice to renew pursuant to these procedures.
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`ii.
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`Should counsel find, after good faith efforts—including verbal
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`communication among Delaware and Lead Counsel for all parties to the dispute—that they are unable
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`to resolve a discovery matter or a dispute regarding a protective order, the parties involved in the
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`discovery matter or protective order dispute shall file a joint letter in substantially the following form:
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`Dear Judge Burke:
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`The parties in the above-referenced matter write to
`request the scheduling of a discovery teleconference.
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`The following attorneys, including at least one
`Delaware Counsel and at least one Lead Counsel per
`party, participated in a verbal meet-and-confer (in
`person and/or by telephone) on the following date(s):
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`Delaware Counsel: ___________________
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`Lead Counsel: _______________________
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`The disputes requiring judicial attention are listed
`below:
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`[provide here a non-argumentative list of disputes
`requiring judicial attention]
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`5
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`iii.
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`The moving party (i.e., the party seeking relief from the Court) should
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`also file a “Motion For Teleconference To Resolve Discovery Dispute.” The suggested text for this
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`motion can be found in Judge Burke’s section of the Court’s website, in the “Forms” tab, under the
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`heading “Discovery Matters - Motion to Resolve Discovery Dispute.”
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`iv.
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`The Court will thereafter set a discovery dispute telephone conference
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`and a briefing schedule. The movant’s opening letter brief shall include as attachments: (1) a proposed
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`order, attached as an exhibit, setting out the nature of the relief requested of the Court; and (2) to the
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`extent that the dispute relates to responses to certain discovery requests, an attached exhibit (or
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`exhibits) containing the requests and the responses in dispute. To the extent that factual issues are
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`disputed or are otherwise central to the Court’s analysis, the parties shall attach as an exhibit (or
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`exhibits) to their letter briefs sworn declarations or affidavits regarding those issues. The parties should
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`also consult and follow Judge Burke’s “Guidelines for Discovery Disputes,” which is found in the
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`“Guidelines” tab on Judge Burke’s section of the District Court’s website. The parties shall also
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`comply with paragraph 5 regarding the submission of courtesy copies; if they fail to do so, the
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`telephone conference may be cancelled.
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`v.
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`Should the Court find further briefing necessary upon the conclusion
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`of the telephone conference, the Court will order it. Alternatively, the Court may choose to resolve
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`the dispute prior to the telephone conference and will, in that event, cancel the conference.
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`8.
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`Motions to Amend.
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`a.
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`Any motion to amend a pleading shall NOT be accompanied by an
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`opening brief but shall, instead, be accompanied by a letter, not to exceed three (3) single-spaced
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`pages, describing the basis for the requested relief, and shall attach the proposed amended
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`pleading as well as a “blackline” comparison to the prior pleading.
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`6
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`Case 1:14-cv-01430-CJB Document 504 Filed 04/25/22 Page 7 of 15 PageID #: 28185
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`b.
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`Within seven (7) days after the filing of a motion in compliance with this
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`Order, any party opposing such a motion shall file a responsive letter, not to exceed five (5) single-
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`spaced pages.
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`c.
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`Within three (3) days thereafter, the moving party may file a reply letter,
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`not to exceed two (2) single-spaced pages, and, by this same date, the parties may file a letter
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`requesting a teleconference to address the motion to amend.
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`9.
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`Motions to Strike.
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`a.
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`Any motion to strike any pleading or other document or testimony shall
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`NOT be accompanied by an opening brief but shall, instead, be accompanied by a letter, not to
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`exceed three (3) single-spaced pages, describing the basis for the requested relief, and shall attach
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`the document to be stricken.
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`b.
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`Within seven (7) days after the filing of a motion in compliance with this
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`Order, any party opposing such a motion shall file a responsive letter, not to exceed five (5) single-
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`spaced pages.
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`c.
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`Within three (3) days thereafter, the moving party may file a reply letter,
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`not to exceed two (2) single-spaced pages, and, by this same date, the parties may file a letter
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`requesting a teleconference to address the motion to strike.
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`10.
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`Motions to Stay.
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`a.
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`Any motion to stay shall NOT be accompanied by an opening brief but
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`shall, instead, be accompanied by a letter, not to exceed three (3) single-spaced pages, describing
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`the basis for the requested relief.
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`b.
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`Within seven (7) days after the filing of a motion in compliance with this
`
`Order, any party opposing such a motion shall file a responsive letter, not to exceed five (5) single-
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`spaced pages.
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`c.
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`Within three (3) days thereafter, the moving party may file a reply letter,
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`not to exceed two (2) single-spaced pages, and, by this same date, the parties may file a letter
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`requesting a teleconference to address the motion to stay.
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`12.
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`Claim Construction. The Court has issued a Claim Construction ruling. See D.I.
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`266.
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`15.
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`Interim Status Report. On _______, 202_, counsel shall file a joint letter with
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`the Court with an interim report on the nature of the matters in issue and the progress of
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`discovery to date. Thereafter, if the Court deems it necessary, it will schedule a status conference.
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`16.
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`Supplementation. Absent agreement among the parties, and approval of the
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`Court, no later than October 12, 2022, the parties must finally supplement, inter alia, the
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`identification of all accused products and of all invalidity references.
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`17.
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`Case Dispositive Motions.
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`a.
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`All case dispositive motions, an opening brief, and affidavits, if any, in
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`support of the motion shall be served and filed on or before February 22, 2023. Briefing will be
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`presented pursuant to the Court’s Local Rules, as modified by this Order.
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`b.
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`No early motions without leave. No case dispositive motion under Rule
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`56 may be filed more than ten (10) days before the above date without leave of the Court. A
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`party seeking leave to file a case dispositive motion prior to ten (10) days before the deadline set
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`forth above shall do so by filing a motion and an accompanying letter brief with the Court of no
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`more than four (4) single-spaced pages, explaining the reasons why an earlier-filed motion should
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`be permitted. If any party wishes to contest this request, it may do so by filing a responsive letter
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`brief of no more than four (4) single-spaced pages, within seven (7) days from the date the
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`requesting party filed its brief. No reply briefs shall be filed.
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`8
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`c.
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`Concise Statement of Facts Requirement. Any motion for summary
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`judgment shall be accompanied by a separate concise statement, not to exceed six pages, which
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`details each material fact that the moving party contends is essential for the Court’s resolution of
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`the summary judgment motion (not the entire case) and as to which the moving party contends
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`there is no genuine issue to be tried. Each fact shall be set forth in a separate numbered paragraph
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`and shall be supported by specific citation(s) to the record.
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`Any party opposing the motion shall include with its opposing papers a response to the
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`moving party’s concise statement, not to exceed six pages, which admits or disputes the facts set
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`forth in the moving party’s concise statement on a paragraph-by-paragraph basis. To the extent a
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`fact is disputed, the basis of the dispute shall be supported by specific citation(s) to the record.
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`Failure to respond to a fact presented in the moving party’s concise statement of facts shall
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`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
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`four pages, which sets forth material facts as to which the opposing party contends there is a
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`genuine issue to be tried. Each fact asserted by the opposing party shall also be set forth in a
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`separate numbered paragraph and shall be supported by specific citation(s) to the record.
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`d.
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`The moving party shall include with its reply papers a response to the
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`opposing party’s concise statement of facts, not to exceed four pages, on a paragraph-by-
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`paragraph basis.
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`e.
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`Page limits combined with Daubert motion page limits. Each party is
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`permitted to file as many case dispositive motions as desired; provided, however, that each SIDE
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`will be limited to a combined total of 40 pages for all opening briefs, a combined total of 40
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`pages for all answering briefs, and a combined total of 20 pages for all reply briefs regardless of
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`the number of case dispositive motions that are filed. In the event that a party files, in addition
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`9
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`to a case dispositive motion, a Daubert motion to exclude or preclude all or any portion of an
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`expert’s testimony, the total amount of pages permitted for all case dispositive and Daubert
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`motions shall be increased to 50 pages for all opening briefs, 50 pages for all answering briefs,
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`and 25 pages for all reply briefs for each SIDE .1
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`f.
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`Hearing. The Court will hear argument on all pending case dispositive and
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`Daubert motions on May 3, 2023 beginning at 11:00 a.m.2
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`18.
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`Applications by Motion. Except as otherwise specified herein, any application
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`to the Court shall be by written motion filed with the Court. Any non-dispositive motion should
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`contain the statement required by Local Rule 7.1.1.
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`19.
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`Pretrial Conference. On ________, 202_, the Court will hold a pretrial
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`conference in court with counsel beginning at _____ _.m. [The parties should request a date
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`approximately two to four weeks prior to their requested trial date.] Unless otherwise ordered by
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`the Court, the parties should assume that filing the pretrial order satisfies the pretrial disclosure
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`requirement of Federal Rule of Civil Procedure 26(a)(3). The parties shall file with the Court the
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`joint proposed final pretrial order with the information required by the form of Patent Pretrial
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`Order, which can be found in the “Forms” tab on Judge Burke’s section of the Court ’s website
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`(www.ded.uscourts.gov), on or before ________, 202_. [The parties should insert a date no less
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`than seven (7) days before the requested pretrial conference date.] Unless otherwise ordered by
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`the Court, the parties shall comply with the timeframes set forth in Local Rule 16.3(d)(1)-(3) for
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`the preparation of the joint proposed final pretrial order.
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`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 motion and Daubert motions that are covered by this
`scheduling order and any other scheduling order in any related case that is proceeding on a
`consolidated or coordinated pretrial schedule.
`2 Previously scheduled for January 13, 2023.
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`10
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`As noted in the Patent Pretrial Order, the parties shall include in their joint proposed
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`pretrial order, among other things:
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`a.
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`a request for a specific number of hours for their trial presentations, as
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`well as a requested number of days, based on the assumption that in a typical jury trial day (in
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`which there is not jury selection, jury instruction, or deliberations), there will be 5 ½ to 6 ½ hours
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`of trial time, and in a typical bench trial day there will be 6 to 7 hours of trial time;
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`b.
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`their position as to whether the Court should allow objections to efforts
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`to impeach a witness with prior testimony, including objections based on lack of completeness
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`and/or lack of inconsistency;
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`c.
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`their position as to whether the Court should rule at trial on objections
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`to expert testimony as beyond the scope of prior expert disclosures, taking time from the parties’
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`trial presentation to argue and decide such objections, or defer ruling on all such objections unless
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`renewed in writing following trial, subject to the proviso that a party prevailing on such a post-
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`trial objection will be entitled to have all of its costs associated with a new trial paid for by the
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`party that elicited the improper expert testimony at the earlier trial; and;
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`d.
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`their position as to how to make motions for judgment as a matter of law,
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`whether it be immediately at the appropriate point during trial or at a subsequent break, whether
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`the jury should be in or out of the courtroom, and whether such motions may be supplemented
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`in writing.
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`20.
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`Motions in Limine. Motions in limine shall not be separately filed. All in limine
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`requests and responses thereto shall be set forth in the proposed pretrial order. Each SIDE shall
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`be limited to three (3) in limine requests, unless otherwise permitted by the Court. The in limine
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`request and any response shall contain the authorities relied upon; each in limine request may be
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`supported by a maximum of three (3) single-spaced pages of argument and may be opposed by
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`11
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`a maximum of three (3) single-spaced pages of argument, and the party making the in limine
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`request may add a maximum of one (1) additional single-spaced page in reply in support of its
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`request. If more than one party is supporting or opposing an in limine request, such support or
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`opposition shall be combined in a single three (3)-page single-spaced submission (and, if the
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`moving party, a single one (1)-page single-spaced reply), unless otherwise ordered by the Court.
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`No separate briefing shall be submitted on in limine requests, unless otherwise permitted by the
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`Court.
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`21.
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`Jury Instructions, Voir Dire, and Special Verdict Forms. Where a case is to
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`be tried to a jury, pursuant to Local Rules 47.1 and 51.1 the parties should file (i) proposed voir
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`dire, (ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict forms
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`three (3) full business days before the final pretrial conference. This submission shall be
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`accompanied by a courtesy copy containing electronic files of these documents, in Word format,
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`which may be submitted by e-mail to the trial judge’s staff.
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`22.
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`Trial. This matter is scheduled for a __ day ____ jury trial beginning at 9:30 a.m.
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`on _________, 202_, with the subsequent trial days beginning at 9:00 a.m. Until the case is
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`submitted to the jury for deliberations, the jury will be excused each day at 4:30 p.m. The trial will
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`be timed, as counsel will be allocated a total number of hours in which to present their respective
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`cases.
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`23.
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`Judgment on Verdict and Post-Trial Status Report. Within seven (7) days
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`after a jury returns a verdict in any portion of a jury trial, the parties shall jointly file a form of
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`order to enter judgment on the verdict. At the same time, the parties shall file a joint status report,
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`indicating among other things how the case should proceed and listing any post-trial motions
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`each party intends to file.
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`12
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`24.
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`Post-Trial Motions. Unless otherwise ordered by the Court, all SIDES are
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`limited to a maximum of 20 pages of opening briefs, 20 pages of answering briefs, and 10 pages
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`of reply briefs relating to any post-trial motions filed by that side, no matter how many such
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`motions are filed.
`
`Christopher J. Burke
`UNITED STATES MAGISTRATE JUDGE
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`13
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`Case 1:14-cv-01430-CJB Document 504 Filed 04/25/22 Page 14 of 15 PageID #: 28192
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`Event
`
`Samsung to serve final narrative interrogatory responses providing
`technical data for all representative products.
`NOTE: This is merely a final deadline. Samsung shall provide rolling
`updates to its interrogatory responses in the interim that include its final
`responses to technical interrogatories relating to subsets of the
`representative products. At a minimum, Samsung shall use best efforts
`serve final responses for half of the representative products by June 6,
`2022.
`
`Elm’s deadline to serve interrogatories and Rule 30(b)(6) deposition
`notices relating to Samsung’s representative products
`
`Elm’s deadline to serve fact-deposition notices on Samsung
`
`Fact discovery closes
`
`Elm elects no more than 36 total claims and provide final infringement
`contentions
`
`Defendants’ responses to contention interrogatories related to
`infringement
`
`Defendants elect no more than 36 prior art references and provide final
`invalidity contentions
`
`Elm’s responses to contention interrogatories related to invalidity
`
`Opening expert reports
`
`Responsive expert reports
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`Reply expert reports
`
`Expert discovery closes
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`Case dispositive and Daubert motions
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`Responses to case dispositive and Daubert motions
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`Replies to case dispositive and Daubert motions
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`Hearing on pending dispositive and Daubert motions
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`Rule 16 Conference
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`14
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`Deadline
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`7/11/2022
`
`7/18/2022
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`7/18/2022
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`8/31/2022
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`9/14/2022
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`10/5/2022
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`10/12/2022
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`10/26/2022
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`11/16/2022
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`12/22/2022
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`1/12/2023
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`1/31/2023
`
`2/22/2023
`
`3/22/2023
`
`4/5/2023
`
`May 3, 2023
`
`TBD
`
`

`

`Case 1:14-cv-01430-CJB Document 504 Filed 04/25/22 Page 15 of 15 PageID #: 28193
`
`Deadline for Elm to provide a draft pretrial order to all other parties
`
`Event
`
`Deadline for all other parties to provide Elm and each other party with
`their responses to Elm’s draft order
`
`Pretrial conference
`
`Jury trial
`
`Deadline for the parties to jointly submit a form of order to enter
`judgment on the verdict and to submit a joint status report (should they
`wish to file one), indicating among other things how the case should
`proceed and listing any post-trial motions each party intends to file
`
`Deadline
`
`30 days before the
`pretrial order is to
`be filed with the
`Court
`
`14 days before the
`pretrial order is to
`be filed with the
`Court
`
`TBD
`
`TBD
`
`7 days after jury
`verdict
`
`15
`
`