Case 1:14-cv-01453-LPS Document 18 Filed 04/14/15 Page 1 of 13 PageID #: 126
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`MEDA PHARMACEUTICALS INC. and
`CIPLALTD.,
`
`P laintif.fs,
`
`v.
`
`APOTEX INC. and APOTEX CORP.,
`
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Civil Action No. 1:14-cv-01453-LPS
`
`SCHEDULING ORDER
`
`This [ ~y of April, 2015, the Court having consulted with the parties' attorneys and
`
`received a joint proposed scheduling order, 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 fifteen (15) days of the date of this Order. If
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`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 Standards for Discovery, and is
`
`incorporated herein by reference). Specifically, the parties shall start the initial discovery set
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`{00954425;vl )
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`MEDA PHARMACEUTICALS INC. and
`CIPLALTD.,
`
`P laintif.fs,
`
`v.
`
`APOTEX INC. and APOTEX CORP.,
`
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Civil Action No. 1:14-cv-01453-LPS
`
`SCHEDULING ORDER
`
`This [ ~y of April, 2015, the Court having consulted with the parties' attorneys and
`
`received a joint proposed scheduling order, 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 fifteen (15) days of the date of 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 Standards for Discovery, and is
`
`incorporated herein by reference). Specifically, the parties shall start the initial discovery set
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`Case 1:14-cv-01453-LPS Document 18 Filed 04/14/15 Page 2 of 13 PageID #: 127
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`forth in Paragraph 4(a)-(d) of the Default Standard commencing within 30 days after the entry
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`of this ORDER.
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`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 May 29, 2015.
`
`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 Order. Should counsel be unable to reach an agreement on a proposed form order, counsel
`
`must follow the provisions of Paragraph 7(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 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.
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`Case 1:14-cv-01453-LPS Document 18 Filed 04/14/15 Page 3 of 13 PageID #: 128
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`Should any party intend to request to seal or redact all or any portion of a transcript of a
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`court proceeding (including a teleconference), such party should expressly note that intent at the
`
`start of the court proceeding. Should the party subsequently choose to make a request for sealing
`
`or redaction, it must, promptly after the completion of the transcript, file with the Court a motion
`
`for sealing/redaction, and include as attachments (1) a copy of the complete transcript
`
`highlighted so the Court can easily identify and read the text proposed to be sealed/redacted, and
`
`(2) a copy of the proposed redacted/sealed transcript. With their request, the party seeking
`
`redactions must demonstrate why there is good cause for the redactions and why disclosure of
`
`the redacted material would work a clearly defined and serious injury to the party seeking
`
`redaction.
`
`5.
`
`Courtesy Copies. Other than with respect to "discovery matters," which are
`
`governed by paragraph 7(g), and the final pretrial order, which is governed by paragraph 20, the
`
`parties shall provide to the Court two (2) courtesy copies of all briefs and one ( 1) courtesy copy
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`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.
`
`ADR Process. This matter is referred to a magistrate judge to explore the
`
`possibility of alternative dispute resolution.
`
`7.
`
`Discovery. Unless otherwise ordered by the Court, the limitations on discovery
`
`set forth in Local Rule 26. l shall be strictly observed.
`
`a.
`
`Discovery Cut Off. All [fact] discovery in this case shall be initiated so
`
`that it will be completed on or before: February 26, 2016.
`
`b.
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`Document Production. Document production shall be substantially
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`complete by: October 23, 2015.
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`Case 1:14-cv-01453-LPS Document 18 Filed 04/14/15 Page 4 of 13 PageID #: 129
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`c.
`
`Requests for Admission. A maximum of 50 requests for admission are
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`permitted for each side, excluding those solely related to authentication of documents.
`
`d.
`
`Interrogatories.
`
`i.
`
`A maximum of 20 interrogatories, including contention
`
`interrogatories are permitted for each side.
`
`n.
`
`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 70 hours, not to exceed 10 notices of
`
`deposition, of taking testimony by deposition upon oral
`
`examination, excluding experts and third parties. To the
`
`extent a witness requires an interpreter, only half of the
`
`deposition time used for that witness shall count towards
`
`the 70 hour limitation.
`
`ii.
`
`Location of Depositions. Any party or representative
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`(officer, director, or managing agent) of a party filing a
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`Case 1:14-cv-01453-LPS Document 18 Filed 04/14/15 Page 5 of 13 PageID #: 130
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`civil action in this district court must ordinarily be required,
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`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 26(a)(2)
`
`disclosure of expert testimony is due on or before April 1,
`
`2016. The supplemental disclosure to contradict or rebut
`
`evidence on the same matter identified by another party is
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`due on or before May 6, 2016. Reply expert reports from
`
`the party with the initial burden of proof are due on or
`
`before June 3, 2016. By agreement of the parties, plaintiffs
`
`will serve opening and reply expert reports regarding
`
`objective indicia of non-obviousness and defendants will
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`serve rebuttal expert reports regarding objective indicia of
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`non-obviousness, but this agreement shall not be construed
`
`as altering any party's burden of proof at trial on any
`
`issues. No other expert reports will be permitted without
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`either the consent of all parties or leave of the Court. Along
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`Case 1:14-cv-01453-LPS Document 18 Filed 04/14/15 Page 6 of 13 PageID #: 131
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`with the submissions of the expert reports, the parties shall
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`advise of the dates and times of their experts' availability
`
`for deposition. All expert discovery in this case shall be
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`initiated so that it will be completed on or before: July 15,
`
`2016.
`
`n.
`
`Expert Report Supplementation. The parties agree they will
`
`not permit expert declarations to be filed in connection with
`
`motions briefing (including case dispositive motions).
`
`m.
`
`Objections to Expert Testimony. To the extent any
`
`objection to expert testimony is made 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.
`
`g.
`
`Discovery Matters and Disputes Relating to Protective Orders.
`
`1.
`
`Any discovery motion filed without first complying with the
`
`following procedures will be denied without prejudice to renew
`
`pursuant to these procedures.
`
`11.
`
`Should counsel find, after good faith efforts - including verbal
`
`communication among Delaware and Lead Counsel for all
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`Case 1:14-cv-01453-LPS Document 18 Filed 04/14/15 Page 7 of 13 PageID #: 132
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`parties to the dispute - that they are unable to resolve a
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`discovery matter or a dispute relating to a protective order, the
`
`parties involved in the discovery matter or protective order
`
`dispute shall submit a joint letter in substantially the following
`
`form:
`
`Dear Judge Stark:
`
`The parties in the above -
`Referenced matter write to request the
`Scheduling of a discovery
`Teleconference.
`
`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):
`
`Delaware Counsel: ~~~~~~~~~~~~-
`
`The disputes requiring
`judicial attention are listed below:
`
`[provide here a non-argumentative
`list of disputes requiring judicial
`attention]
`
`m. On a date to be set by separate order, generally not less than
`
`forty-eight (48) hours prior to the conference, the party seeking
`
`relief shall file with the Court a letter, not to exceed three (3)
`
`pages, outlining the issues in dispute and its position on those
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`Case 1:14-cv-01453-LPS Document 18 Filed 04/14/15 Page 8 of 13 PageID #: 133
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`issues. On a date to be set by separate order, but generally not
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`less than twenty-four (24) hours prior to the conference, any
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`party opposing the application for relief may file a letter, not to
`
`exceed three (3) pages, outlining the party's reason for its
`
`opposition.
`
`iv.
`
`Each party shall submit two (2) courtesy copies of its discovery
`
`letter and any attachments.
`
`v.
`
`Should the Court find further briefing necessary upon
`
`conclusion of the telephone conference, the Court will order it.
`
`Alternatively, the Court may choose to resolve the dispute prior
`
`to the telephone conference and will, in the event, cancel the
`
`conference.
`
`8.
`
`Motions to Amend.
`
`a.
`
`Any motion to amend (including a motion for leave to amend) a pleading
`
`shall NOT be accompanied by an opening brief but shall, instead, be accompanied by a letter, not
`
`to exceed three (3) pages, describing the basis for the requested relief, and shall attach the
`
`proposed amended pleading as well as a "blackline" comparison to the prior pleading.
`
`b.
`
`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)
`
`pages.
`
`c.
`
`Within three (3) days thereafter, the moving party may file a reply letter,
`
`not to exceed two (2) pages, and, by this same date, the parties shall file a letter requesting a
`
`teleconference to address the motion to amend.
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`Case 1:14-cv-01453-LPS Document 18 Filed 04/14/15 Page 9 of 13 PageID #: 134
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`9.
`
`Motions to Strike.
`
`a.
`
`Any motion to strike any pleading or other document shall NOT be
`
`accompanied by an opening brief but shall, instead, be accompanied by a letter, not to exceed
`
`three (3) pages, describing the basis for the requested relief, and shall attach the document to be
`
`stricken.
`
`b.
`
`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)
`
`pages.
`
`c.
`
`Within three (3) days thereafter, the moving party may file a reply letter,
`
`not to exceed two (2) pages, and, by this same date, the parties shall file a letter requesting a
`
`teleconference to address the motion to strike.
`
`10.
`
`Tutorial Describing the Technology and Matters in Issue. Unless otherwise
`
`ordered by the Court, the parties shall provide the Court, no later than the date on which their
`
`opening claim construction briefs are due, a tutorial on the technology at issue. In that regard, the
`
`parties may separately or jointly submit a DVD of not more than thirty (30) minutes. The tutorial
`
`should focus on the technology at issue and should not be used for argument. The parties may
`
`choose to file their tutorial(s) under seal, subject to any protective order in effect. Each party may
`
`comment, in writing (no more than five (5) pages) on the opposing party's tutorial. Any such
`
`comment shall be filed no later than the date on which the answering claim construction briefs
`
`are due. As to the format selected, the parties should confirm the Court's technical abilities to
`
`access the information contained in the tutorial.
`
`11.
`
`Claim Construction Issue Identification. On October 1, 2015, the parties shall
`
`exchange a list of those claim term(s)/phrase(s) that they believe need construction and their
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`Case 1:14-cv-01453-LPS Document 18 Filed 04/14/15 Page 10 of 13 PageID #: 135
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`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 submitted on October 22, 2015. 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
`
`with this Joint Claim Construction Chart. In this joint submission, the parties shall not provide
`
`argument.
`
`12.
`
`Claim Construction Briefing. The parties shall contemporaneously submit initial
`
`briefs on claim construction issues on November 23, 2015. The parties answering/responsive
`
`briefs shall be contemporaneously submitted on December 23, 2015. No reply briefs of
`
`supplemental papers on claim construction shall be submitted without leave of the Court. Local
`
`Rule 7 .1.3( 4) shall control the page limitations for initial (opening) and responsive (answering)
`
`briefs.
`
`Hearing on Claim Construction. Beginning at J; 0 0 r111 on
`13.
`F ~b, '8 ) ~o \ b [the parties propose 10:00 a.m. on January 21, 2016, or as soon
`
`thereafter as is convenient for the Court], the Court will hear argument on claim construction.
`
`The parties shall notify the Court, by joint Jetter submission, no later than the date on which their
`
`answering claim construction briefs are due: (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.
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`Case 1:14-cv-01453-LPS Document 18 Filed 04/14/15 Page 11 of 13 PageID #: 136
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`Provided the parties comply with all portions of this Scheduling Order, and any other
`
`orders of the Court will issue its claim construction order within sixty (60) days after the
`
`conclusion of the claim construction hearing.
`
`14.
`
`Interim Status Report. On February 11, 2016, counsel shall submit a joint letter
`
`to the Court with an interim report on the nature of the matters in issue and the progress of
`
`discovery to date. Thereafter, if the Court deems it necessary, it will schedule a status
`
`conference.
`
`15.
`
`Supplementation. Absent agreement among the parties, and approval of the Court,
`
`no later than March 11, 2016, the parties must finally supplement, inter alia, the identification
`
`of all accused products and of all invalidity references.
`
`16.
`
`17.
`
`Case Dispositive Motions. None.
`
`Applications by Motion. Except as otherwise 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.
`
`18.
`
`Pretrial Conference. On Mo.rcL
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`.
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`[the parties propose October
`
`7, 2016, or as soon thereafter as is convenient for the Court], the Court will hold a pretrial
`
`conference in Court with counsel beginning at \ t ยท.) 0 o.n-.. 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 Revised Final
`FQ..\,. l\ > iot1.
`Pretrial Order, on or before Septeml:Je1 23, 2616. Unless otherwise ordered by the Court, the
`
`parties shall comply with timeframes set forth in Local Rule 16.3( d)( 1 )-(3) for the preparation of
`
`the joint proposed final pretrial order.
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`Case 1:14-cv-01453-LPS Document 18 Filed 04/14/15 Page 12 of 13 PageID #: 137
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`The parties shall provide the Court two (2) copies of the joint proposed final pretrial
`
`order and all attachments.
`
`As noted in the Revised Final Pretrial Order, the parties shall include in their joint
`
`proposed final pretrial order, among other things:
`
`a.
`
`a request for a specific number of hours for their trial presentations, as
`
`well as a requested number of days, based on the assumption that in a typical bench trial day
`
`there will be 6-7 hours of trial time;
`
`b.
`
`their position as to whether the Court should allow objections to efforts to
`
`impeach a witness with prior testimony, including objections based on lack of completeness
`
`and/or lack of inconsistency;
`
`c.
`
`their position as to whether the Court should rule at trial on objections to
`
`expert testimony as beyond the scope of prior expert disclosures, taking time from the parties'
`
`trial presentation to argue and decide such objections, or defer ruling on all such objections
`
`unless renewed in writing following trial, subject to the proviso that a party prevailing on such a
`
`post-trial objection will be entitled to have all of its costs associated with a new trial paid for by
`
`the party that elicited the improper expert testimony at the earlier trial; and
`
`d.
`
`their position as to how to make motions for judgment as a matter of law,
`
`whether it be immediately at the appropriate point during trial or at a subsequent break and
`
`whether such motions maybe supplemented in writing.
`
`19. 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
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`Case 1:14-cv-01453-LPS Document 18 Filed 04/14/15 Page 13 of 13 PageID #: 138
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`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 side 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, ifthe moving party, a single (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.
`
`20.
`
`Trial. This matter is scheduled for a five-day bench trial beginning at 8:30 a.m. on
`
`Mo..rc.J.....
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`\fa ) io \] [tbe parties propo~e ,N9ve111ber 14, 2016, or H soon thereafteF as is
`
`-e6nnnient f9F tbe Cout=fj, with the subsequent trial days beginning at 8:30 a.m., pending the
`
`Court's availability. The trial day will end no later than 5:00 p.m. each day.
`
`21.
`
`Post-Trial Briefing. The parties will address the post-trial briefing sc
`
`page limits in the proposed final pretrial order.
`
`CHIEF J DGE
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