Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 1 of 41 PageID #: 9962
`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 1 of 41 PagelD #: 9962
`
`EXHIBIT A
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` EXHIBIT A
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`

`

`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 2 of 41 PageID #: 9963
`
`Ward, Jennifer
`From:
`Sent:
`To:
`
`Subject:
`Attachments:
`
`Ryan, Seth and John,
`
`Yoon, James
`Friday, June 25, 2021 3:42 PM
`Ryan D. Levy; Seth Ogden; John F. Triggs; Smith, Ryan; Yen, Lucy; Carlson, Erik; Ward,
`Jennifer; Ramos, Kathie
`CAT/Wirtgen - Proposed Revisions to Draft Scheduling Order
`REDLINE.pdf; June 25 DRAFT_Proposed Scheduling Order_CAT's Proposal.docx
`
`Thanks again for talking with us this week regarding the Wirtgen-Caterpillar cases in Delaware and Minnesota.
`
`Per our discussions, attached is our draft proposed redlines to the proposed scheduling and discovery order. The draft
`assumes that the parties will proceed in Delaware and that Caterpillar Inc. will be the defendant. The draft also assumes
`that the Minnesota case will be dismissed without prejudice.
`
`Please email me any questions or comments. Let me know if you need any additional information.
`
`Jim
`
`James Yoon
`Wilson Sonsini Goodrich & Rosati
`650 Page Mill Road
`Palo Alto, CA 94304
`650-320-4726 (Direct)
`650-714-8493 (Cell #1: Normal Work Cell)
`650-229-2649 (Cell #2: Work From Home Cell)
`Email: jyoon@wsgr.com
`
`1
`
`

`

`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 3 of 41 PageID #: 9964
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 17-770-RGA
`
`JURY TRIAL DEMANDED
`
`DRAFT 6/25/2021
`
`))
`
`))
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`)
`)
`)
`
`))
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`)
`
`WIRTGEN AMERICA, INC.
`
`Plaintiff,
`
`vs.
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`CATERPILLAR INC.
`
`Defendant.
`
` [PROPOSED] SCHEDULING ORDER
`
`This ___ day of ____________, 2021, the Court having conducted an initial Rule 16
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`scheduling and planning conference pursuant to Local Rule 16.216.1(ab) on December 11, 2018,
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`and the parties1 having determined after discussion that the matter cannot be resolved at this
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`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. Unless otherwise agreed to by the parties, the
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`parties shall make their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1)
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`within five days of the date of this Orderon November 19, 2021 [5 days after CAT’s answer].
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`2.
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`Joinder of Other Parties and Amendments 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 [300September 16,
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`2022 [301 days from this OrderCAT’s Answer].
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`3.
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`Discovery.
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`a.
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`Coordination of Fact Discovery. Due to the overlap in the above-captioned
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`1 “Plaintiff(s),” as used herein, refers to a party that is asserting a patent claim or counterclaim.
`“Defendant(s),” as used herein, refers to a party accused of infringing a patent.
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`

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`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 4 of 41 PageID #: 9965
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`case with In the Matter of Certain Road Milling Machines and Components Thereof,
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`Investigation No. 337-TA-1067 (Int’l Trade Comm’n) (“the 1067 Investigation”), without the
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`parties waiving any discovery rights under the Federal Rules of Civil Procedure or otherwise, it
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`is ordered that all discovery produced or taken in the 1067 Investigation can be used as if
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`produced or taken in the above-captioned case.
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`b.
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`Fact Discovery Cut Off. All fact discovery in this case shall be initiated so
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`that it will be completed on or before [480March 17, 2023 [483 days from this OrderCAT’s
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`Answer].
`
`c.
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`Document Production. Document production shall be substantially
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`complete by [360November 18, 2022 [364 days from this OrderCAT’s Answer].
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`d.
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`Requests for Admission. A maximum of 50100 requests for admission are
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`permitted for each side, excluding requests exclusively for document authentication purposes.
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`e.
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`Interrogatories. A maximum of 25 interrogatories, including contention
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`interrogatories, are permitted for each side.
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`f.
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`Depositions.
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`i.
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`Limitation on Hours for Deposition Discovery. Each side is limited
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`to a total of 70100 hours of taking testimony of fact witnesses by deposition upon oral
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`examination.
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`ii.
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`Location of Depositions. Any party or representative (officer,
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`director, or managing agent) of a party filing a civil action in this district court must ordinarily be
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`required, upon request, to submit to a deposition at a place designated within this district.
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`Exceptions to this general rule may be made by order of the Court or by agreement of the parties.
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`A defendant who becomes a counterclaimant, cross-claimant, or third-party plaintiff shall be
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`2
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`

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`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 5 of 41 PageID #: 9966
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`considered as having filed an action in this Court for the purposes of this provision.
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`g.
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`Discovery Matters and Disputes Relating to Protective Orders. Should
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`counsel find they are unable to resolve a discovery matter or a dispute relating to a protective
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`order, the parties involved in the discovery matter or protective order dispute shall contact the
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`Court’s Case Manager to schedule an in-person conference/argument. Unless otherwise ordered,
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`by no later than seven business days prior to the conference/argument, any party seeking relief
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`shall file with the Court a letter, not to exceed three pages, outlining the issues in dispute and its
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`position on those issues. By no later than five business days prior to the conference/argument,
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`any party opposing the application for relief may file a letter, not to exceed three pages, outlining
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`that party’s reasons for its opposition. A party should include with its letter a proposed order
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`with a detailed issue-by-issue ruling such that, should the Court agree with the party on a
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`particular issue, the Court could sign the proposed order as to that issue, and the opposing party
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`would be able to understand what it needs to do, and by when, to comply with the Court’s order.
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`Any proposed order shall be e-mailed, in Word format, simultaneously with filing to
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`rga_civil@ded.uscourts.gov.
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`If a discovery-related motion is filed without leave of the Court, it will be denied
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`without prejudice to the moving party’s right to bring the dispute to the Court through the
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`discovery matters procedures set forth in this Order.
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`h.
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`Miscellaneous Discovery Matters.
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`i.
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`PatentESI Disclosures.
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`1.
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`On or before February 4, 2022 [77 days from CAT’s
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`Answer], the parties shall exchange Initial Disclosures
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`pursuant to Paragraph 3 of the Default Standard for
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`3
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`

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`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 6 of 41 PageID #: 9967
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`Discovery, Including Discovery of Electronically Stored
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`Information (“ESI”) (“Delaware Default Standard”).
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`2.
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`On or before February 18, 2022 [91 days from CAT’s
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`Answer], pursuant to Paragraph 5(b) of the Delaware
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`Default Standard, the parties shall disclose ten (10) search
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`terms that they plan to use per custodian.
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`3.
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`On or before February 25, 2022 [98 days from CAT’s
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`Answer], pursuant to Paragraph 5(b) of the Delaware
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`Default Standard, the parties shall disclose, absent a
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`showing of good cause, no more ten (10) additional search
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`terms that they request the opposing party use in its
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`electronic search.
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`ii.
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`Patent Disclosures.
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`1.
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`On or before December 3, 2021 [14 days from this Order],
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`plaintiffsCAT’s Answer], Plaintiffs shall specifically identify the accused products and asserted
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`patent(s) defendantsDefendants allegedly infringe and produce the file history for each asserted
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`patent.
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`2.
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`On or before December 17, 2021 [28 days from this Order],
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`defendantsCAT’s Answer], Defendants shall produce to plaintiffsPlaintiffs the core technical
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`documents related to the accused product(s).
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`3.
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`On or before [42January 7, 2022 [49 days from this Order],
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`plaintiffsCAT’s Answer], Plaintiffs shall serve on defendantsDefendants an initial claim chart
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`relating each accused product to the asserted claims each product allegedly infringes.
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`4
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`

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`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 7 of 41 PageID #: 9968
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`4.
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`On or before January 28, 2022 [70 days from this Order],
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`defendantsCAT’s Answer], Defendants shall serve on plaintiffsPlaintiffs their initial invalidity
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`contentions for each asserted claims, as well as the related invalidating references.
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`5.
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`Within forty-five (45) days of the Court’s issuance of its
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`Claim Construction order and by no later than [495March 31, 2023 [497 days from this Order],
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`PlaintiffCAT’s Answer], Plaintiffs shall provide final infringement contentions.
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`6.
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`Within ninety (90) days of the Court’s issuance of its Claim
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`Construction order and by no later than May 12, 2023 [540 days from this Order],
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`DefendantCAT’s Answer], Defendants shall provide final invalidity contentions.
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`ii. [The parties should set forth a statement identifying any other pending
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`or completed litigation including IPRs involving one or more of the asserted patents. Plaintiff
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`should advise whether it expects to institute any further litigation in this or other Districts within
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`the next year. Defendant should advise whether it expects to file one or more IPRs and, if so,
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`when.]
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`iii.
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`[No later than one hundred and twenty (120) days after CAT files
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`its answer, the parties shall file a statement with the Court that identifies any other pending or
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`completed litigation including IPRs involving one or more of the asserted patents. In this
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`statement, Plaintiff should advise whether it expects to (1) amend the complaint to add additional
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`patents and (2) institute any further litigation in this or other Districts within the next year. In this
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`statement, Defendant should advise whether it expects to (1) amend the complaint to add
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`additional patents and (2) institute any further litigation in this or other Districts within the next
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`year. Finally, in this statement, the parties should indicate whether they expect to file challenges
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`to the patents at issue in this case with the United States patent office and, if so, when.]
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`5
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`

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`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 8 of 41 PageID #: 9969
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`iv.
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`iii. [If one or more of the patents-in-suit have already been licensed
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`or the subject of a settlement agreement, either (1) PlaintiffPlaintiffs shall provide the licenses
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`and/or settlement agreements to DefendantDefendants no later than the time of the initial Rule
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`16(b) scheduling conference, or (2) if PlaintiffPlaintiffs requires a Court Order to make such
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`disclosures, PlaintiffPlaintiffs shall file any necessary proposed orders no later than twenty-four
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`hours before the initial Rule 16(b) scheduling conference. PlaintiffPlaintiffs shall represent in the
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`scheduling order that it is complying or has complied with this requirement. All parties shall be
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`prepared to discuss at the conference what their preliminary views of damages are.]
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`4.
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`Application to Court for Protective Order. The parties will submit a proposed
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`Protective Order within 30 days of entry of this order that is no less restrictive than that
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`governing the ITC investigation captioned In the Matter of Certain Road Milling Machines and
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`Components Thereof, Inv. No. 337-TA-1067. Should counsel be unable to reach an agreement
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`on a proposed form of order, counsel will follow the provisions of Paragraph 3(g) above.
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`Any proposed protective order will include the following paragraph:
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`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 as confidential
`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.
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`5.
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`Papers Filed Under Seal. When filing papers under seal, counsel shall deliver to
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`the Clerk the required number of copies as directed in paragraph 6. A redacted version of any
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`sealed document shall be filed electronically within seven days of the filing of the sealed
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`document.
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`6
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`

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`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 9 of 41 PageID #: 9970
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`6.
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`Courtesy Copies. The parties shall provide to the Court two courtesy copies of all
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`briefs and one 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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`7.
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`Claim Construction Issue Identification. On or before [270August 19, 2022 [273
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`days from this OrderCAT’s Answer], the parties shall exchange a list of those claim
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`term(s)/phrase(s) that they believe need construction and their proposed claim construction of
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`those term(s)/phrase(s). This document will not be filed with the Court. Subsequent to
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`exchanging that list, the parties will meet and confer to prepare aseparate Joint Claim
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`Construction ChartCharts for each side’s asserted patents to be filed no later than September 2,
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`2022 [284 days from this OrderCAT’s Answer]. The Joint Claim Construction ChartCharts, in
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`Word format, shall be e-mailed simultaneously with filing to rga_civil@ded.uscourts.gov. The
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`parties’ Joint Claim Construction ChartCharts should identify for the Court the term(s)/phrase(s)
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`of the claim(s) in issue and should include each party’s proposed construction of the disputed
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`claim language with citation(s) only to the intrinsic evidence in support of their respective
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`proposed constructions. A copy of the patent(s) in issue as well as those portions of the intrinsic
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`record relied upon shall be submitted with this Joint Claim Construction ChartCharts. In
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`thisthese joint submissionsubmissions, the parties shall not provide argument.
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`8.
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`Claim Construction Briefing12. PlaintiffEach side shall serve, but not file, its
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`12 As each brief is written and provided to the opposing party, the individual responsible
`for verifying the word count will represent to the other party that it has so verified and by what
`means. These verifications should not be provided to the Court unless a dispute arises about
`them. Pictures, Figures copied from the patent, and other illustrations do not count against the
`word limit. PlaintiffPlaintiffs should include with itstheir opening brief one or more
`representative claims with the disputed terms italicized. Should DefendantDefendants want to
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`7
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`

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`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 10 of 41 PageID #: 9971
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`opening brief concerning its patents, not to exceed 5,000 words, on [312September 30, 2022
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`[315 days from this Order]. DefendantCAT’s Answer]. The parties shall serve, but not file,
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`itstheir answering briefbriefs, not to exceed 7,500 words, on [340October 28, 2022 [343 days
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`from this Order]. PlaintiffCAT’s Answer]. The parties shall serve, but not file, itstheir reply
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`briefbriefs, not to exceed 5,000 words, on [368November 22, 2022 [364 days from this Order].
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`DefendantCAT’s Answer]. The parties shall serve, but not file, itstheir sur-reply briefbriefs, not
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`to exceed 2,500 words on [389December 16, 2022 [392 days from this OrderCAT’s Answer]. No
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`later than [396December 23, 2022 [399 days from this OrderCAT’s Answer], the parties shall
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`file a Joint Claim Construction BriefBriefs. The parties shall copy and paste their unfiled briefs
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`into two briefs (one brieffor each side’s asserted patents), with their positions on each claim term
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`in sequential order, in substantially the form below.
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`JOINT CLAIM CONSTRUCTION BRIEF
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`I.
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`II.
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`Representative Claims
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`Agreed-upon Constructions
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`III.
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`Disputed Constructions
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`A.
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`[TERM 1]23
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`1.
`2.
`3.
`4.
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`Plaintiff’s Opening Position
`Defendants’ Answering Position
`Plaintiff’s Reply Position
`Defendant’s Sur-Reply Position
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`B.
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`[TERM 2]
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`add additional representative claims, DefendantDefendants may do so. The representative claims
`and the agreed-upon claim constructions do not count against word limits.
`23 For each term in dispute, there should be a table or the like setting forth the term in
`dispute and the parties’ competing constructions. The table does not count against the word
`limits.
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`8
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`

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`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 11 of 41 PageID #: 9972
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`1.
`2.
`3.
`4.
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`Plaintiff’s Opening Position
`Defendants’ Answering Position
`Plaintiff’s Reply Position
`Defendant’s Sur-Reply Position
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`Etc. The parties need not include any general summaries of the law relating to claim
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`construction. If there are any materials that would be submitted in an appendix, the parties shall
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`submit them in a Joint Appendix.
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`9.
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`Hearing on Claim Construction. Beginning at 9:00 a.m. on February _ , 2023
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`[about 6 weeks later], the Court will hear argument on claim construction. Absent prior approval
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`of the Court (which, if it is sought, must be done so by joint letter submission no later than the
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`date on which the answering claim construction briefs are due), the parties shall not present
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`testimony at the argument, and the argument shall not exceed a total of three hours. When the
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`Joint Claim Construction Brief isBriefs are filed, the parties shall simultaneously file a motion
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`requesting the above-scheduled claim construction hearing, state that the briefing is complete,
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`and state how much total time the parties are requesting that the Court should allow for the
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`argument.
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`10.
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`Disclosure of Expert Testimony.
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`a.
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`Expert Reports. For the party who has the initial burden of proof on the
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`subject matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on or before
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`[373May 12, 2023 [539 days from this OrderCAT’s Answer]. The supplemental disclosure to
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`contradict or rebut evidence on the same matter identified by another party is due on or before
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`June 23, 2023 [581 days from this OrderCAT’s Answer]. Reply expert reports from the party
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`with the initial burden of proof are due on or before July 21, 2023 [609 days from this
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`OrderCAT’s Answer]. No other expert reports will be permitted without either the consent of all
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`parties or leave of the Court. If any party believes that an expert report does not comply with the
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`9
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`

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`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 12 of 41 PageID #: 9973
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`rules relating to timely disclosure or exceeds the scope of what is permitted in that expert report,
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`the complaining party must notify the offending party within one week of the submission of the
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`expert report. The parties are expected to promptly try to resolve any such disputes, and, when
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`they cannot reasonably be resolved, use the Court’s Discovery Dispute Procedure or the
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`complaint will be waived.
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`Along with the submissions of the expert reports, the parties shall advise of the
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`dates and times of their experts’ availability for deposition. Depositions of experts shall be
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`completed on or before September 15, 2023 [665 days from this OrderCAT’s Answer].
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`b.
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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.,
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`509 U.S. 579 (1993), as incorporated in Federal Rule of Evidence 702, it shall be made by
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`motion no later than the deadline for dispositive motions set forth herein, unless otherwise
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`ordered by the Court.
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`11.
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`Case Dispositive Motions. All case dispositive motions shall be served and filed
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`on or before [693 days from this OrderOctober 14, 2023 [694 days from CAT’s Answer]. All
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`case dispositive motion answering briefs shall be served and filed on or before November 4,
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`2022 [715 days from CAT’s Answer]. All case dispositive motion reply briefs shall be served
`
`and filed on or before November 18, 2022 [729 days from CAT’s Answer]. No case dispositive
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`motion under Rule 56 may be filed more than ten days before the above date without leave of the
`
`Court. Absent an order of the Court upon a showing of good cause, each side is limited to one
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`forty-page opening brief, one forty-page answering brief, and one twenty-page reply brief for all
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`of its Daubert and case dispositive motions.
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`12.
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`Applications by Motion. Except as otherwise specified herein, any application to
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`10
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`

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`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 13 of 41 PageID #: 9974
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`the Court shall be by written motion. Any non-dispositive motion should contain the statement
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`required by Local Rule 7.1.1.
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`13.
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`Pretrial Conference. On March __, 2024 [about 820834 days from this
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`OrderCAT’s Answer], the Court will hold a Rule 16(e)(c) final pretrial conference in Court with
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`counsel beginning at 8:30 a.m. The parties shall file a joint proposed final pretrial order in
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`compliance with Local Rule 16.3(c) no later than 5:00 p.m. on the fourth business day before the
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`date of the final pretrial conference. Unless otherwise ordered by the Court, the parties shall
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`comply with the timeframes set forth in Local Rule 16.3(d) for the preparation of the proposed
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`joint final pretrial order.
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`14. Motions in Limine. Motions in limine shall be separately filed, with each motion
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`containing all the argument described below in one filing for each motion. Any supporting
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`documents in connection with a motion in limine shall be filed in one filing separate from the
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`motion in limine. Each party shall be limited to three in limine requests, unless otherwise
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`permitted by the Court. The in limine request and any response shall contain the authorities relied
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`upon; each in limine request may be supported by a maximum of three pages of argument and
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`may be opposed by a maximum of three pages of argument, and the party making the in limine
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`request may add a maximum of one additional page in reply in support of its request. If more
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`than one party is supporting or opposing an in limine request, such support or opposition shall be
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`combined in a single three-page submission (and, if the moving party, a single one-page reply).
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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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`15.
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`Jury Instructions, Voir Dire, and Special Verdict Forms. Where a case is to be
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`tried to a jury, pursuant to Local Rules 47.1(a)(2) and 51.1, the parties should file (i) proposed
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`11
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`

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`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 14 of 41 PageID #: 9975
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`voir dire, (ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict
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`forms no later than 6:00 p.m. on the fourth business day before the date of the final pretrial
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`conference. Areas of dispute shall be identified as narrowly as possible and in a manner that
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`makes it readily apparent what the dispute is. The parties shall submit simultaneously with filing
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`each of the foregoing four documents in Word format to rga_civil@ded.uscourts.gov.
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`16.
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`Trial. This matter is scheduled for a 5-day jury trial beginning at 9:30 a.m. on
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`April __, 2024 [about 845859 days from this OrderCAT’s Answer], with the subsequent trial
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`days beginning at 9:30 a.m. Until the case is submitted to the jury for deliberations, the jury will
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`be excused each day at 5:00 p.m. The trial will be timed, and counsel will be allocated a total
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`number of hours in which to present their respective cases.
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`17.
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`ADR Process. This matter is referred to a magistrate judge to explore the
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`possibility of alternative dispute resolution. This matter is referred to a magistrate judge to
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`handle all discovery disputes including any that arise in connection with expert reports. The
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`parties agree to hold a settlement conference with the magistrate judge by February 28, 2022.
`
`__________________________________________
`UNITED STATES DISTRICT JUDGE
`
`12
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`

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`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 15 of 41 PageID #: 9976
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`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and exact copy of the foregoing document has been served this
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`12th day of June 2021 upon the below-listed counsel via ECF:
`
`Appendix A
`
`Bindu A. Palapura
`POTTER ANDERSON & CORROON, LLP
`Hercules Plaza, 6th Floor
`1313 N. Market Street
`Wilmington, DE 19801
`Tel: (302) 984-6000
`bpalapura@potteranderson.com
`
`Event
`
`Plaintiff Files Amended Complaint
`Defendant Files Answer
`Rule (26)(a)(1) Disclosures
`
`Identification of Accused Products/Asserted
`Patents
`Core Technical Document Production
`
`Protective Order
`
`Initial Infringement Contentions
`
`Initial Invalidity Contentions
`
`Delaware Default Standard Para. 3
`Disclosures
`Delaware Default Standard Para. 5(b) –
`Disclosure of Search Terms
`Delaware Default Standard Para. 5(b) –
`Disclosure of Requested Search Terms by
`Opposing Party
`Deadline to Hold Settlement Conference with
`
`DeadlineGregory J. Commins, Jr.
`Michael E. Anderson
`BAKER & HOSTETLER LLP
`1050 Connecticut Avenue, NW
`Washington, DC 20036
`gcommins@bakerlaw.com
`syashar@bakerlaw.com
`meanderson@bakerlaw.com
`August 20, 2021
`November 19, 2021
`November 23, 2021 [4 days from Cat’s
`Answer]
`December 3, 2021 [14 days from CAT’s
`Answer]
`December 17, 2021 [28 days from CAT’s
`Answer]
`December 17, 2021 [28 days from Cat’s
`Answer]
`January 7, 2022 [49 days from CAT’s
`Answer]
`January 28, 2022 [70 days from CAT’s
`Answer]
`February 4, 2022 [77 days from CAT’s
`Answer]
`February 18, 2022 [91 days from CAT’s
`Answer]
`February 25, 2022 [98 days from CAT’s
`Answer]
`
`February 28, 2022 [101 days from CAT’s
`
`

`

`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 16 of 41 PageID #: 9977
`
`Magistrate Judge
`Identification of Terms for
`Construction/Proposed Construction
`Joint Claim Construction Chart
`
`Joinder of Other Parties / Amendment of
`Pleadings
`Opening CC Briefs
`
`Answering CC Briefs
`
`Substantial Completion Deadline
`
`Reply CC Briefs
`
`Sur-Reply CC Briefs
`
`Joint Claim Construction Briefs
`
`Claim Construction Hearing
`Fact Discovery Deadline
`
`Final Infringement Contentions
`
`Final Invalidity Contentions
`
`Opening Expert Reports
`
`Rebuttal Expert Reports
`
`Reply Expert Reports
`Expert Discovery Deadline
`
`Case Dispositive / Daubert Motions &
`Opening Briefs
`Case Dispositive / Daubert Answering Briefs
`
`Case Dispositive / Daubert Reply Briefs
`
`Pretrial Order
`
`Answer]
`August 19, 2022 [273 days from CAT’s
`Answer]
`September 2, 2022 [287 days from CAT’s
`Answer]
`September 16, 2022 [301 days from CAT’s
`Answer]
`September 30, 2022 [315 days from CAT’s
`Answer]
`October 28, 2022 [343 days from CAT’s
`Answer]
`November 18, 2022 [364 days from CAT’s
`Answer]
`November 22, 2022 [368 days from CAT’s
`Answer]
`December 16, 2022 [392 days from CAT’s
`Answer]
`December 23, 2022 [399 days from CAT’s
`Answer]
`February _ , 2023 [about 6 weeks after JCCB]
`March 17, 2023 [483 days from CAT’s
`Answer]
`Within forty-five (45) days of the Court’s
`issuance of its Claim Construction order and
`by no later than March 31, 2023 [497 days
`from CAT’s Answer]
`Within ninety (90) days of the Court’s
`issuance of its Claim Construction order and
`by no later than May 12, 2023 [539 days from
`CAT’s Answer]
`May 12, 2023 [539 days from CAT’s
`answer]
`June 23, 2023 [581 days from CAT’s
`Answer]
`July 21, 2023 [609 days from CAT’s Answer]
`September 15, 2023 [665 days from CAT’s
`Answer]
`October 14, 2023 [694 days from CAT’s
`Answer]
`November 4, 2022 [715 days from CAT’s
`Answer]
`November 18, 2022 [729 days from CAT’s
`Answer]
`No later than 5:00 p.m. on the fourth business
`day before the date of the final pretrial
`conference
`
`

`

`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 17 of 41 PageID #: 9978
`
`Jury Instructions, Voir Dire, and Special
`Verdict Forms
`
`Pretrial Conference
`
`Trial
`
`No later than 6:00 p.m. on the fourth business
`day before the date of the final pretrial
`conference
`March __, 2024 [about 834 days from CAT’s
`Answer]
`5-day jury trial beginning on April __, 2024
`[about 859 days from Cat’s Answer]
`
`/s/ Seth R. Ogden
`Seth R. Ogden
`
`

`

`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 18 of 41 PageID #: 9979
`
`Summary report:
`Litera® Change-Pro for Word 10.7.0.7 Document comparison done on
`6/25/2021 3:21:44 PM
`
`Style name: Default Style
`Intelligent Table Comparison: Active
`Original filename: DRAFT_Proposed Scheduling Order_to Cat_06072021
`(002).docx
`Modified filename: June 25 DRAFT_Proposed Scheduling Order_CAT's
`Proposal.docx
`Changes:
`Add
`Delete
`Move From
`Move To
`Table Insert
`Table Delete
`Table moves to
`Table moves from
`Embedded Graphics (Visio, ChemDraw, Images etc.)
`Embedded Excel
`Format changes
`Total Changes:
`
`114
`99
`3
`3
`37
`1
`0
`0
`0
`0
`0
`257
`
`

`

`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 19 of 41 PageID #: 9980
`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 19 of 41 PagelD #: 9980
`
`EXHIBIT B
`
` EXHIBIT B
`
`

`

`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 20 of 41 PageID #: 9981
`
`
`
`
`November 10, 2021
`
`VIA EMAIL
`
`James C. Yoon, Esq.
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`650 Page Mill Road
`Palo Alto, California 94304
`(650) 493-9300
`jyoon@wsgr.com
`
`RE: Production of Core Technical Documents
`Wirtgen America, Inc. v. Caterpillar Inc.
`C.A. No. 17-770-RGA (D. Del.)
`
`
`
`Dear James:
`
`We write in response to response to Erik Carlson’s October 15, 2021 email regarding the
`November 10, 2021 core technical document production. Because we do not believe the
`Scheduling Order entered by the Court addressed or contemplated Caterpillar’s
`counterclaim patents, we do not agree to provide discovery on those issues on the timetable
`set forth in the Scheduling Order.
`
`As you know, Caterpillar never informed Wirtgen America it intended to file counterclaims
`alleging infringement of its own patents in connection with this action until immediately
`before filing its answer. This was despite the significant amount of time the parties spent
`negotiating the Scheduling Order. Further, our pending motion to sever and to transfer
`further militates against proceeding with discovery on the timetable set forth in the
`Scheduling Order. Should that motion be denied, we can discuss an orderly schedule for
`discovery relating to your infringement allegations.
`
`Please let us know if you would like to discuss.
`
`Best regards,
`
`PATTERSON INTELLECTUAL PROPERTY LAW, P.C.
`
`
`
`
`Ryan D. Levy
`rdl@iplawgroup.com
`
`
`
`
`
`

`

`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 21 of 41 PageID #: 9982
`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 21 of 41 PagelD #: 9982
`
`EXHIBIT C
`
` EXHIBIT C
`
`

`

`Case 1:17-cv-00770-RGA-MPT Document 64-1 Filed 11/18/21 Page 22 of 41 PageID #: 9983
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`
`
`
`
`
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`WIRTGEN AMERICA, INC.
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`CATERPILLAR INC.
`
`
`
`
`
`
`
`Defendant.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`C.A. No. 17-770-RGA
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`PLAINTIFF WIRTGEN AMERICA, INC.’S INITIAL DISCLOSURES,
`PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 26(a)(1)
`
`
`
`Plaintiff Wirtgen America, Inc. (“Plaintiff” or “Wirtgen America”), by its undersigned
`
`counsel, hereby submits the following initial disclosures (“Initial Disclosures”) to Defendant
`
`Caterpillar Inc. (“Defendant”), pursuant to Federal Rule of Civil Procedure (each, a “Rule”)
`
`26(a)(1), and in accordance with this Court’s Scheduling Order. See D.I. 28.
`
`These Initial Disclosures are based on information now reasonably available to Wirtgen
`
`America and represent Wirtgen America’s good-faith effort to identify information that it
`
`reasonably believes to be required pursuant to Rule 26(a)(1) and this Court’s Scheduling Order.
`
`See D.I. 28. Wirtgen America’s investigation is ongoing, and Wirtgen America expressly reserves
`
`the right to modify, amend, supplement, and/or correct the information provided in these Initial
`
`Disclosures as information becomes reasonably available. By making these Initial Disclosures,
`
`Wirtgen America does not represent or warrant that it is identifying every document, item of
`
`electronically stored information, tangible thing, or witness it may use to support its claims and
`
`defenses in this civil action.
`
`Wirtgen America also expressly reserves the right to rely upon additional information as it
`
`1
`
`

`

`C