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`Case 1:17-cv-00585-JFB-SRF Document 56 Filed 04/10/18 Page 1 of 12 PagelD #: 1162
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`UNIVERSAL SECURE REGISTRY LLC,
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`Plaintiff,
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`v.
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`APPLE INC., VISA INC. and
`VISA U.S.A., INC.,
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`Defendants.
`
`)
`)
`)
`)
`) C.A. No. 17-585 (JFB) (SRF)
`)
`)
`)
`)
`)
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`fi!il,Ql'~CHEDULING ORDER
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`This \o-\'aay of A1r'f'\ \
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`, 2018, the Court having conducted an initial Rule 16
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`scheduling and planning conference pursuant to Federal Rule of Civil Procedure 1_6(b) and Local
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`Rule 16.1 on April 3, 2018 and the parties having determined after discussion that the matter
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`cannot be resolved at 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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`Joinder of Other Parties and Amendment of Pleadings. All motions to join other
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`parties, and to amend or supplement the pleadings, shall be filed on or before November 30,
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`2018.
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`2.
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`Discovery. All discovery in this case shall be initiated so that it will be completed
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`on or before July 2, 2019. Unless otherwise ordered by the Court, the limitations on discovery set
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`forth in Local Rule 26.1 shall be strictly observed.
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`a.
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`Rule 26(a)(l) Initial Disclosures. Unless otherwise agreed to by the parties,
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`the parties shall make their initial disclosures pursuant to Federal Rule of Civil Procedure
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`26(a)(l) within five (5) days of the date of this Order.
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`b.
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`E-Discovery Default Standard. The parties have reviewed the Court's
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`Default Standard for Discovery of Electronic Documents, Including Discovery of Electronically
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`Stored Information ("ESI"). The parties propose to adopt the Court's Default Standard for
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`Discovery with the following exceptions.
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`• Paragraph 3 disclosures shall be due by May 3, 2018
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`• Paragraph 4(a) disclosures shall be due by May 3, 2018
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`• Paragraph 4(b) disclosures shall be due by June 18, 2018
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`• Paragraph 4(c) disclosures shall be due by August 10, 2018.
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`• Paragraph 4(d) disclosures shall be due by October 2, 2018.
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`• The parties will submit their modifications to Paragraph 5 by April 12,
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`2018.
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`c.
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`Document Production. Document production shall be completed on or
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`before February 8, 2019.
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`d.
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`Interrogatories. A maximum of 12 common interrogatories are permitted to
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`Defendants collectively by Plaintiff. A maximum of 12 common interrogatories are permitted for
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`Defendants collectively to Plaintiff. Plaintiff is also permitted, for each Defendant, a maximum of
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`13 additional individual interrogatories. A maximum of 13 additional individual interrogatories
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`are also permitted by each Defendant to Plaintiff.
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`e.
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`Contention Interrogatories. In the absence of agreement among the parties,
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`contention interrogatories, if filed, shall first be addressed by the party with the burden of proof
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`no later than the date established for the completion of document production, with the responsive
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`answers due within thirty (30) days thereof. The adequacy of all such interrogatory answers shall
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`be judged by the level of detail each party provides; i.e., the more detail a party provides, the
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`more detail a party shall receive.
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`f.
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`Requests for Admission. Unlimited requests for admission as
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`to
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`authenticity of documents are permitted. The parties agree to work together to reach a stipulation
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`that addresses authenticity of documents and thereby minimize or avoid the need for requests for
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`admission as to authenticity. Plaintiff is permitted, for each Defendant, a maximum of 25
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`individual requests. A maximum of 25 individual requests are permitted by each Defendant to
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`Plaintiff.
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`g.
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`Depositions.
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`i.
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`Timing. In the absence of agreement among the parties or by order
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`of the Court, no deposition (other than those noticed under Fed. R. Civ. P. 30(b)(6)) shall be
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`scheduled prior to the completion of document production.
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`ii.
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`Limitation on Hours for Deposition Discovery. Plaintiff is limited,
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`for each defendant, to a maximum of 65 hours for taking depositions ( excluding expert
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`depositions and non-party depositions). Defendants collectively are limited to a maximum of 65
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`hours for taking depositions (excluding expert depositions and non-party depositions) of
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`Plaintiff. Defendants collectively may take a maximum of 21 hours of 30(b )( 6) time of Plaintiff.
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`Plaintiff is limited, for each defendant, to a maximum of 21 hours of 30(b )( 6) time. Defendants
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`collectively may take a maximum of 21 hours of deposition of Plaintiffs Kenneth P. Weiss
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`(both 30(b)(l) deposition time and 30(b)(6) deposition time count against the 21 hour limit). The
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`default deposition hour limit for all other witnesses, party or non-party, shall be 7 hours for each
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`witness (absent written agreement or leave of Court and, in the case of non-parties, their
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`agreement). The parties shall cooperate to modify the default 7 hour limit in the case of 30(b)(6)
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`designated witnesses where the number of designated topics for a particular designated witness
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`cannot reasonably be covered within the 7 hour limit. The parties will also cooperate to modify
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`the default 21 hour limit for 30(b)(6) depositions where additional hours are needed due to the
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`number of 30(b)(6) witnesses designated on the noticed topics. In no event shall any single
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`deposition exceed 7 hours on the record for a single day of testimony, unless the parties agree
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`otherwise. If additional hours for party deposition discovery becomes necessary, the parties shall
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`meet and confer in good-faith to try to teach agreement on the number of additional hours
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`needed. There is no limit on the number of non-party depositions.
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`iii.
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`Location of Depositions. The parties will cooperate in good-faith
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`to try and reach agreement on a mutually agreeable location for depositions of party witnesses to
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`take place.
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`h.
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`Disclosure of Expert Testimony.
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`i.
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`For the party who has the initial burden of proof on the subject
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`matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on or before
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`August 6, 2019.
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`ii.
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`The supplemental disclosure to contradict or rebut evidence on the
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`same matter identified by another party is due on or before September 6, 2019.
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`iii.
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`Reply expert reports from the party with the initial burden of proof
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`are due on or before October 7, 2019.
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`iv.
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`No other expert reports will be permitted without either the
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`consent 9f all parties or leave of the Court. Along with the submissions of the expert reports, the
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`parties shall advise of the dates and times of their experts' availability for deposition.
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`Depositions of experts shall be completed on or before November 8, 2019.
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`v.
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`Objections to Expert Testimony. To the extent any objection to
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`expert testimony is made pursuant to the principles announced in Daubert v. Merrell Dow
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`Pharm., Inc., 509 U.S. 579 (1993), as incorporated in Federal Rule of Evidence 702, it shall be
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`made by motion no later than the deadline for dispositive motions set forth herein, unless
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`otherwise ordered by the Court.
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`i.
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`Fact Witnesses to be Called at Trial.
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`i.
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`Within one (1) month following the close of expert discovery,
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`each party shall serve on the other parties a list of each fact witness (including any expert
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`witness who is also expected to give fact testimony), who has previously been disclosed during
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`discovery and that it intends to call at trial.
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`ii.
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`Within one (1) month of receipt of such fact witness list, each
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`party shall serve a list of each rebuttal fact witness that it intends to call at trial.
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`iii.
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`The parties shall have the right to depose any such fact witnesses
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`who have not previously been deposed in this case. Such deposition shall be held within one (1)
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`month after service of the list ofrebuttal fact witnesses and shall be limited to twenty (20) hours
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`per side in the aggregate unless extended by agreement of the parties or upon order of the Court
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`upon good cause shown.
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`j.
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`Discovery Matters and Disputes Relating to Protective Orders.
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`1.
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`Should counsel find they are unable to resolve a discovery matter
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`or those other matters covered by this paragraph, 1 the parties involved shall contact chambers at
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`(302) 573-4551 to schedule a telephone conference.
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`Counsel are expected to verbally discuss the issues/concerns before seeking the Court's
`intervention. .
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`ii.
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`After the parties have contacted chambers and have scheduled a
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`teleconference, the moving party or parties should file a "[Joint] Motion for Teleconference To
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`Resolve [Protective Order or Discovery] Dispute." The suggested text for this motion can be
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`found in Magistrate Judge Fallon's section of the Court's website in the "Forms" tab, under the
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`heading "Discovery Matters-Motion to Resolve Discovery Disputes."
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`iii.
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`Not less than seventy-two (72) hours prior to the conference,
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`excluding weekends and holidays, the party seeking relief shall file with the Court a letter, not to
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`exceed four (4) pages, in no less than 12-point font, outlining the issues in dispute and its
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`position on those issues. (The Court does not seek extensive argument or authorities at this
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`point; it seeks simply a statement of the issue to be addressed and a summary of the basis for the
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`party's position on the issue.)
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`iv.
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`Not less than forty-eight (48) hours prior to the conference,
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`excluding weekends and holidays, any party opposing the application for relief may file a letter,
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`not to exceed four (4) pages, in no less than 12-point font, outlining that party's reason for its
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`opposition.
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`v.
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`Two (2) courtesy copies of the letters are to be hand delivered to
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`the Clerk's Office within one hour of e-filing.
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`vi.
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`Should the Court find further briefing necessary upon conclusion
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`of the telephone conference, the Court will order it.
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`vii.
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`Disputes or issues regarding protective orders, or motions for
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`extension of time for briefing case dispositive motions which are related to discovery matters are
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`to be addressed in accordance with this paragraph.
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`viii. No motions to compel or motions for protective order shall be
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`filed absent approval of the Court. Absent express approval of the Court following a discovery
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`conference, no motions pursuant to Fed. R. Civ. P. 37 shall be filed.
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`3.
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`Application to Court for Protective Order. Should counsel find it will be .
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`necessary to apply to the Court for a protective order specifying terms and conditions for the
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`disclosure of confidential information, counsel should confer and attempt to reach an agreement
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`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,
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`counsel must follow the provisions of Paragraph 2G) above.
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`Any proposed protective order must include the following paragraph:
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`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.
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`4.
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`Papers Filed Under Seal. When filing papers under seal, counsel should deliver to
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`the Clerk an original and one (1) copy of the papers. In accordance with section G of the
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`Administrative Procedures Governing Filing and Service by Electronic Means, a redacted
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`version of any sealed document shall be filed electronically within seven (7) days of the filing of
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`the sealed document.
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`5.
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`Courtesy Copies. The parties shall provide to the Court two (2) courtesy copies of
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`all briefs and one (1) courtesy copy of any other document filed in support of any briefs (i.e.,
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`appendices, exhibits, declarations, affidavits etc.). This provision also applies to papers filed
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`under seal.
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`6.
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`ADR Process. This matter will be discussed during the Rule 16 scheduling
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`conference.
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`7.
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`Interim Status Report. On October 1, 2018, counsel shall submit a joint interim
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`report to the Court on the nature of the matters in issue, the progress of discovery to date, and
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`whether they anticipate any issues with respect to amending the pleadings that may affect the
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`timing and procedures with respect to claim construction. On February 15, 2019, the parties will
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`submit a second joint interim report updating the Court on the nature of the matters in issue and
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`the progress of discovery to date.
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`8.
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`Status Conference. On February 20, 2019, the Court will hold a Rule 16(a), (b)
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`and (c) conference by telephone with counsel beginning at 1:00 p.m. Plaintiffs counsel shall
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`initiate the telephone call. At the time of this conference, counsel shall also be prepared to
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`discuss the progress, if any, of settlement discussions and shall be prepared to discuss the
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`possibility of setting up a settlement conference with the Court, counsel and their clients. If all
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`parties agree that there is nothing to report, nor anything to add to the interim status report or to
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`this order, they shall notify the Court in writing before the conference is scheduled to occur, and
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`the conference will be taken off of the Court's calendar.
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`9.
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`Claim Construction.
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`i.
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`If the Court does not find that a limited earlier claim construction
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`would be helpful in resolving the case, on November 9, 2018, the parties shall exchange a list of
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`those claim term(s)/phrase(s) that they believe need construction and their proposed claim
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`construction of those term(s)/phrase(s). This document will not be filed with the Court.
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`ii.
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`Subsequent to exchanging that list, the parties will meet and
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`confer to prepare a Joint Claim Construction Chart to be submitted on December 14, 2018.
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`iii.
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`Unless otherwise ordered by the Court, the parties shall provide
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`the Court, no later than the date on which their opening claim construction briefs are due, a
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`tutorial on the technology at issue. In that regard, the parties may separately or jointly submit a
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`DVD of not more than 30 minutes. The tutorial should focus on the technology in issue and
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`should not be used to argue the parties' claim construction contentions. The parties may choose
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`to file their tutorial(s) under seal, subject to any protective order in effect. Each party may
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`comment, in writing (in no more than 5 pages) on the opposing party's tutorial. Any such
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`comment shall be filed no later than the date on which the answering claim construction briefs
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`are due. As to the format selected, the parties should confirm the Court's technical abilities to
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`access the information contained in the tutorial.
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`iv.
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`The parties shall contemporaneously submit initial briefs on claim
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`construction issues on January 16, 2019.
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`v.
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`The
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`parties'
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`answering/responsive
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`briefs
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`shall
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`be
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`contemporaneously submitted on February 13, 2019.
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`vi.
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`No reply briefs or supplemental papers on claim construction shall
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`be submitted without leave of the Court. Local Rule 7.l.3(a)(4) shall control the page limitation
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`for initial ( opening) and responsive ( answering) briefs.
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`vii.
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`Beginning at 2:00 p.m. on March 6, 2019, the Court will hear
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`evidence and argument on claim construction. The parties shall notify the Court, by joint letter
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`submission, no later than the date on which answering claim construction briefs are due:
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`(i) whether they request leave to present testimony at the hearing; and (ii) the amount of time
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`they would like to have allocated to them for the hearing.
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`viii.
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`The Court shall issue its decision on claim . construction on
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`May 10, 2019.
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`10.
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`Case Dispositive Motions. All case dispositive motions, an opening brief, and
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`affidavits, if any, in support of the motion shall be served and filed on or before January 17,
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`2020. No case dispositive motion under Rule 56 may be filed more than ten (10) days before the
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`above date without leave of the Court. Any responses to case dispositive motions will be due on
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`or before February 14, 2020, and any replies to case dispositive motions will be due on or before
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`February 28, 2020. If the matter is scheduled for a bench trial, no case dispositive motions shall
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`be filed without prior authorization of the Court.
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`Any reference to exhibits in the briefs must refer to the specific pages of the exhibit
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`proffered in support of a party's argument. If the exhibit is a deposition, both the page and line
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`numbers must be specified.2
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`.11.
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`Applications by Motion. Except as otherwise specified herein, any application to
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`the Court shall be by written motion filed with the Clerk. Any non-dispositive motion should
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`contain the statement required by Local Rule 7 .1.1.
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`12.
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`Pretrial Conference. On June 25, 2020, the Court will hold a Pretrial Conference
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`in Court with counsel beginning at 2:00 p.m. Unless otherwise ordered by the Court, the parties
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`should assume that filing the pretrial order satisfies the pretrial disclosure requirement of Federal
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`Rule of Civil Procedure 26(a)(3). The parties shall file with the Court the joint proposed final
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`pretrial order with the information required by the form of Final Pretrial Order which
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`2 For example, a reference to an exhibit that refers to the entire document will not be accepted
`and is not consistent with this provision.
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`accompanies this Scheduling Order on or before June 4, 2020. Unless otherwise ordered by the
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`Court, the parties shall comply with the timeframes set forth in Local Rule 16.3(d)(l)-(3) for the
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`preparation of the joint proposed final pretrial order. The Court will advise the parties at or
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`before the above-scheduled pretrial conference whether an additional pretrial conference will be
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`necessary.
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`13. 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 party shall
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`be limited to five (5) 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) pages of argument and may be opposed by a maximum of
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`three (3) pages of argument, and the party making the in limine request may add a maximum of
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`one (1) additional page in reply in support of its request. If more than one party is supporting or
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`opposing an in limine request, such support or opposition shall be combined in a single three (3)
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`page submission (and, if the moving party, a single one (1) page reply), unless otherwise ordered
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`by the Court. No separate briefing shall be submitted on in limine requests, unless otherwise
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`permitted by the Court.
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`14.
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`Jury Instructions, Vair Dire, and Special Verdict Forms. Where a case is to be
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`tried to a jury, pursuant to Local Rules 4 7 and 51, the parties should file joint (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. That submission shall be
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`accompanied by a computer diskette containing each of the foregoing four ( 4) documents in
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`WordPerfect format.
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`15.
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`Trial. This matter is scheduled for a 10 day jury trial beginning at 9:30 a.m. on
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`July 20, 2020 with the subsequent trial days beginning at 9:00 a.m. The trial will be timed, as
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`counsel will be allocated a total number of hours in which to present their respective cases.
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