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`Case 1:20-cv-00925-JFB-SRF Document 20 Filed 10/23/20 Page 1 of 12 PageID #: 159
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`HOLOGIC, INC., a Delaware corporation; and
`CYTYC SURGICAL PRODUCTS, LLC, a
`Massachusetts limited liability company,
`
`Plaintiffs,
`
`V.
`
`CA. No. 20-925-JFB—SRF
`
`MINERVA SURGICAL, INC., a Delaware
`corporation,
`
`Defendant.
`
`A
`This 23f day of October, 2020, the Court having conducted an initial Rule 16 scheduling
`
`SCHEDULING ORDER
`
`and planning conference pursuant to Federal Rule of Civil Procedure 16(b) and Local Rule 16.1
`
`on September 22, 2020, 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 ORDERED that:
`
`1.
`
`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 December 17,
`
`2020.
`
`2.
`
`Discovery.
`
`All discovery exchanged in Hologic, Inc. v. Minerva Surgical, Inc, No. 15-1031-JFB—SRF
`
`(D. Del.) (the “First Action”) and Minerva Surgical, Inc. v. Hologz'c, Inc, No. 18—cv—00217-JFB-
`
`SRF (D. Del.) is deemed to have been exchanged in this action.
`
`All discovery in this case shall be initiated so that it will be completed on or before
`
`December 30, 2020.
`
`

`

`8338 rearweaagaalsesafi Basement £8 EH69 16/22/29 Saga 2 of 12 PagelD a: m
`Case 1:20-cv-00925-JFB-SRF Document 20 Filed 10/23/20 Page 2 of 12 PageID #: 160
`
`a.
`
`Rule 261a” 1 2 Initial Disclosures. Unless otherwise agreed to by the parties,
`
`the parties shall make their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1)
`
`within five (5) days of the date of this Order.
`
`b.
`
`E-Discovery Default Standard. If they have not already done so, the parties
`
`are to review the Default Standard for Discovery of Electronic Documents, which is posted on
`
`Magistrate Judge Fallon’s section of the Court’s website (http://www.ded.uscourts.gov) under the
`
`“Guidelines” tab, and is incorporated herein by reference with the following deadlines: -
`
`i.
`
`The parties shall make their disclosures under Default Standard for
`
`Discovery, Paragraph 3, within five (5) days of the date of this Order.
`
`ii.
`
`Identification of Accused Products. By October 19, 2020, Plaintiffs
`
`will provide disclosures under Default Standard for Discovery, Paragraph 4.a.
`
`iii.
`
`Core Technical Documents. By November 2, 2020, Defendant must
`
`produce core technical documents
`
`in accordance with Default Standard for Discovery,
`
`Paragraph 4.b.
`
`iv.
`
`Infringement Contentions. By November 23, 2020, Plaintiffs will
`
`/
`provide disclosures under Default Standard for Discovery, Paragraph 4.0.
`v.
`InvalidityContentions. {HelogielssPaéopesakBeeauseBefendamX 5Q?
`
`esteppedfremassertingfinvaliditwbefendanfneedmflprovidefiisefosuresunderdlefaultfitandardw’f
`WirseevereraTagraplT4‘7di'dz‘fierfia’ffi7éifi‘thefitmTWfiinedefeWuderath‘*}
`
`Defendant.wilLQI;)y;d§,disglosar%urrder=BefauifiStandardmearagraphLdflflfiW
`
`mango;mmys%m%WWM%MQMWWW%WOW
`
`Defendant must serve initial invalidity contentions thirty (30) days after all appeals from the First
`
`Action are exhausted;
`
`

`

`Essa l2§8=8t288§§§2fi2§fifi Beeumem a8 files mag/a9 Bags a at 3.2 BagelD a: 3.6a
`Case 1:20-cv-00925-JFB-SRF Document 20 Filed 10/23/20 Page 3 of 12 PageID #: 161
`
`c.
`
`Document Production. Document production shall be completed on or
`
`before December 14, 2020.
`
`d.
`
`Interr‘ogatories. A maximum of 2 interrogatories shall be served by each
`
`party to any other party.
`
`e.
`
`Contention Interrogatories. In the absence of agreement among the parties,
`
`contention interrogatories, if filed, shall first be addressed by the party with the burden ofproof no
`
`later than the date established for the completion of document production, with the responsive
`
`answers due within thirty (30) days thereof. The adequacy of all such 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.
`
`f.
`
`Requests for Admission. A maximum of 10 requests for admission shall be
`
`served by each party to any other party.
`
`g.
`
`Depositions.
`
`i. Mg In the absence of agreement among the parties or by order
`
`of the Court, no deposition (other than those noticed under Fed. R. Civ. P. 30(b)(6)) shall be
`
`scheduled prior to the completion of document production.
`
`ii.
`
`Limitation on Hours for Deposition Discovery. Each side is limited
`
`to a maximum of 15 hours for taking fact depositions and a maximum four persons.
`
`iii.
`
`Location of Depositions. Any party or representative (officer,
`
`director, or managing agent) of a party filing a civil action in this District Court must ordinarily be
`
`required, 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
`
`

`

`ESSS liEBrEVrBBQEéflEIél—‘SE Basementéa Eilsa mag/2e Eager: of 12 Pagell #: 152
`Case 1:20-cv-00925-JFB-SRF Document 20 Filed 10/23/20 Page 4 of 12 PageID #: 162
`
`action in this Court for the purpose of this provision.
`
`In view of the COVID-19 pandemic,
`
`depositions may be taken by videoconference.
`
`h.
`
`Disclosure ofExpert Testimony.
`
`5Q?
`
`/f
`
`i.
`
`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
`
`January 18, 2021.
`
`ii.
`
`The supplemental disclosure to contradict or rebut evidence on the
`
`same matter identified by another party is due on or before February 8, 2021.
`
`iii.
`
`Reply expert reports from the party with the initial burden of proof
`
`are due on or before February 22, 2021.
`
`iv.
`
`No other expert reports will be permitted without either the consent
`
`of all parties or leave of the Court. Along with the submissions of the expert reports, the parties
`
`shall advise of the dates and times of their experts’ availability for deposition.
`
`v.
`
`Expert discovery, including’any depositions of expert witnesses,
`
`must be completed by March 8, 2021.
`
`vi.
`
`Objections to Expert Testimony. To the extent any objection to
`
`expert testimony is made pursuant to the principles announced in Daubert v. Merrell Dow Pharm.,
`
`1110., 509 US. 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.
`
`

`

`8338 liEBz8¥2888§§flE§§RE Basement 26 titles toga/ac Page 5 of 12 PagelD #: 159
`Case 1:20-cv-00925-JFB-SRF Document 20 Filed 10/23/20 Page 5 of 12 PageID #: 163
`
`i.
`
`Fact Witnesses to be Called at Trial.
`
`i.
`
`By February 22, 2021, each party shall serve on the other parties a
`
`list of each fact witness (including any expert witness who is also expected to give fact testimony),
`
`who has previously been disclosed during discovery and that it intends to call at trial.
`
`ii.
`
`By March 1, 2021, each party shall serve a list of each rebuttal fact
`
`witness that it intends to call at trial.
`
`iii.
`
`The parties shall have the right to depose any such fact witnesses
`
`who have not previously been deposed in this case. Such deposition shall be held by March 29,
`
`2021, and shall be limited to three (3) hours per side in the aggregate unless extended by agreement
`
`of the parties or upon order of the Court upon good cause shown.
`
`j.
`
`Discovery Matters and Disputes Relating to Protective Orders.
`
`i.
`
`Should counsel find they are unable to resolve a discovery matter or
`
`those other matters covered by this paragraph,l the moving party (i. e., the party seeking relief from
`
`the Court) shall file a “[Joint] Motion for Teleconference To Resolve [Protective Order or
`Discovery] Dispute.” The suggested text for this motion can be found in Magistrate Judge Fallon’s
`
`section of the Court’s website in the “Forms” tab, under the heading “Discovery Matters—Motion
`
`to Resolve Discovery Disputes.”
`
`ii.
`
`The Court will thereafter order a discovery telephone conference
`
`and deadlines for submissions. On the date set by the Court, generally not less than seventy-two
`
`(72) hours prior to the conference, excluding weekends and holidays, the party seeking relief shall
`
`file with the Court a letter, not to exceed four (4) pages, in no less than 12-point font, outlining the
`
`
`
`1 Counsel are expected to verbally discuss the issues/concems before seeking the Court’s
`intervention.
`
`

`

`SEES iféfirsvr88§§§dr9§=§fif
`fissumem 2Q Filed 10/23/20 Page 6 of 12 Pagelo #2: 154.
`Case 1:20-cv-00925-JFB-SRF Document 20 Filed 10/23/20 Page 6 of 12 PageID #: 164
`
`issues in dispute and its position on those issues. This submission shall include a proposed order,
`
`attached as an exhibit, setting out the nature of the relief requested.
`
`iii.
`
`On the date set by the Court, generally not less than forty-eight (48)
`
`hours prior to the conference, excluding weekends and holidays, any party opposing the
`
`application for relief may file a letter, not to exceed four (4) pages, in no less than 12-point font,
`
`outlining that party’s reason for its opposition.
`
`iv.
`
`Two (2) courtesy copies of the letters are to be hand delivered to the
`
`Clerk’s Office within one hour of e-filing. All courtesy copies shall be double-sided.
`
`V.
`
`Should the Court find further briefing necessary upon conclusion of
`
`the telephone conference, the Court will order it.
`
`vi.
`
`Disputes or issues regarding protective orders, or motions for
`
`extension of time for briefing case dispositive motions which are related to discovery matters are
`
`to be addressed in accordance with this paragraph.
`
`3.
`
`Application to Court for Protective Order. The Protective Order in the First
`
`Action (First Action, D.I. 140) applies in this action as if entered herein.
`
`4.
`
`Papers Filed Under Seal. When filing papers under seal, counsel should deliver
`
`to the Clerk an original and one (1) copy of the papers.
`
`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 ofthe filing of the sealed
`
`document.
`
`5.
`
`Courtesy Copies. The parties shall provide to the Court two (2) courtesy copies
`
`of all briefs and one (1) courtesy copy of any other document filed in support of any briefs (i.e.,
`
`

`

`Ease lefifievfiggéézéfifififili Daeument re Eiled 19123120 Page 7 of 12 PagelD #: 153
`Case 1:20-cv-00925-JFB-SRF Document 20 Filed 10/23/20 Page 7 of 12 PageID #: 165
`
`appendices, exhibits, declarations, affidavits, etc). This provision also applies to papers filed
`
`under seal.
`
`6.
`
`ADR Process. This matter will be discussed during the Rule 16 scheduling
`
`conference.
`
`7.
`
`Interim Status Report. On December 21, 2020, counsel shall submit a joint
`
`interim report to the Court on the nature of the matters in issue and the progress of discovery to
`date.
`‘
`
`8.
`
`Status Conference. On January 5, 2021, the Court will hold a Rule 16(a), (b) and
`
`(0) conference by telephone with counsel beginning at 1:00 pm. Plaintiff’s counsel shall initiate
`
`the telephone call. At the time of this conference, counsel shall also be prepared to discuss the
`
`progress, if any, of settlement discussions and shall be prepared to discuss the possibility of setting
`
`up a settlement conference with the Court, counsel and their clients. If all parties agree that there
`
`I is nothing to report, nor anything to add to the interim status report or to this order, they shall notify
`
`the Court in writing before the conference is scheduled to occur, and the conference will be taken
`
`off of the Court’s calendar.
`
`9.
`
`Claim Construction Issue Identification.
`
`The Court’s previous
`
`claim
`
`construction ruling and the parties’ previous agreement (First Action, D.I. 227; D.I. 155), and the
`
`Federal Circuit’s ruling relating thereto (First Action, D.I. 635-1), are deemed to be the Court’s
`
`claim construction decision in the present case.
`
`10.
`
`Early Summary Judgment Motions. Prior to filing any summary judgment
`
`motion in advance of the deadline set forth in Paragraph 11, any party seeking leave to do so must
`
`submit a letter brief seeking permission to file the motion. The opening letter brief shall be no
`
`longer than five (5) pages and shall be filed with the Court no later than October 30, 2020.
`
`

`

`Ease 1528:8i/266§§§:§E§:§RE fleettment 29 Filed 10/23/20 Page 8 of 12 PagelD #:- lee
`Case 1:20-cv-00925-JFB-SRF Document 20 Filed 10/23/20 Page 8 of 12 PageID #: 166
`
`Answering letter briefs shall be no longer than five (5) pages and filed with'the Court no later than
`
`November 13, 2020. Any motion addressing assignor estoppel shall be raised within the deadlines
`
`set for dispositive motions.
`
`11.
`
`Case Dispositive Motions. All case dispositive motions, an opening brief, and
`
`affidavits, if any, in support of the motion shall be served and filed on or before March 22, 2021.
`
`Briefing will be presented pursuant to the Court’s Local Rules, except as modified as folloWs:
`
`(i) responsive briefs are due April 12, 2021, and reply briefs are due April 26, 2021 ; and
`
`(ii) [—Hologielsfioposalraif‘i‘ssuespresentedforsummaryfiudgmentwshalhbemseeforthamnglej
`
`openingbriefperwpartyanotito(texceed—Bre‘p‘agmith‘respensivewbriefsnetwrtoimexceedijpages,wand»)
`rWWéangesflMjWomsWe Court and Parties
`
`may address any modifications to the page limits for summaryjudgment briefing later‘iwthe-easw 12%?
`<1 cm terehce, See; §>$W93r3§>k3 "r. awed 8.
`'
`. If the matter is scheduled for a bench trial, no case dispositive motions shall be filed
`
`'3 b em a fat-ate 5,
`
`without prior authorization of the Court. No case-dispositive motion under Rule 56 may be filed
`
`more than ten (10) days before the above date without leave of the Court.
`
`Any reference to exhibits in the briefs must refer to the specific pages of the exhibit
`
`proffered in support of a party’s argument. If the exhibit is a deposition, both the page and line
`
`numbers must be specified.2
`
`12.
`
`Applications by Motion. Except as otherwise specified 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.
`
`H 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.
`
`

`

`83$ £55838vr88§§§:§£§:§fif I9me 216 and 10/23/20 Page a or 112 PagelllD #: 1571
`Case 1:20-cv-00925-JFB-SRF Document 20 Filed 10/23/20 Page 9 of 12 PageID #: 167
`
`13.
`
`Pretrial Conference. The Court will hold a Pretrial Conference in Court on July
`
`27, 2021 at 10:00 am. 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 ofFinal Pretrial Order which accompanies this Scheduling Order
`
`on July 7, 2021. Unless otherwise ordered by the Court, the parties shall comply with the time
`
`frames set forth in Local Rule l6.3(d)(l)-(3) for the preparation of the joint proposed final pretrial
`
`order.
`
`The Court will advise the parties at or before the above-scheduled pretrial conference
`
`whether an additional pretrial conference will be necessary.
`
`14. 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 party 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
`
`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 party 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 liminé request, such support or opposition shall be combined in a single three (3)
`
`page submission (and, if the moving party, a single one (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.
`
`15.
`
`Jury Instructions, Voir Dire, and Special Verdict Forms. Where a case is to be
`
`tried to a jury, pursuant to Local Rules 47 and 51 the parties should file joint (i) proposed voir
`
`

`

`823$ £38IW388§§§:§E§-'§IBIE 9W it? filled its/23120 Page 1110) ofl‘ 112 Panel-#1 115%
`Case 1:20-cv-00925-JFB-SRF Document 20 Filed 10/23/20 Page 10 of 12 PageID #: 168
`
`dire, (ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict forms
`
`three (3) full business days before the final pretrial conference. That submission shall be
`
`accompanied by a computer diskette containing each of the foregoing four (4) documents in
`
`5&1?
`
`
`
`Word format.
`
`16.
`
`Trial. This matter is scheduled for a five (5)-day jury trial on August 23, 2021.
`
`The trial will be timed, as counsel will be allocated a total number of hours in which to present
`
`their respective cases.
`
`i
`'
`i”
`, *3 l
`t
`3“
`
`TE§ aviAGISTRATE JUDGE
`
`\Mwfl
`
`t
`
`,
`/s/
`
`
`ED
`
`-10-
`
`

`

`Ease 1528:W:66§§§:§E§:§RE Begum 29 Filed 10/22/20 Page 11 of 12 PageID a: 153
`Case 1:20-cv-00925-JFB-SRF Document 20 Filed 10/23/20 Page 11 of 12 PageID #: 169
`
`272331901
`
`TABLE OF SCHEDULING DATES
`
`
`‘ Event
`,
`Deadline
`
`Date of Rule 16 Scheduling Conference
`9/22/2020
`
`Initial Disclosures under Federal Rules
`5 days after the date of the Scheduling
`Order
`
`Disclosures under Delaware Default Standard for
`5 days after the date of the Scheduling
`Discovery 11 3
`Order
`Identify Accused Products
`10/19/2020
`_J
`(Default Standard for Discovery 11 4.a.)
`
`Opening Letter Brief(s) re Permission for Early
`10/30/2020
`Summary Judgment
`
`Core Technical Document Production
`T
`11/2/2020 ‘
`(Default Standard for Discovery 1] 4.b.)
`
`Responsive Letter Brief(s) re Permission for Early
`1 1/ 13/2020
`L_Summary Judgment
`Preliminary Infringement Contentions
`
`
`
`1
`
`i
`
`(
`
`—1
`
`l—
`
`11/23/2020
`
`(Default Standard for Discovery 11 4.c.)
`Initial Invalidity Contentions
`(Default Standard for Discovery 11 4.d.)
`
`i‘
`
`day W
`ctio
`
`
`
`
`
`
`
`
`' 0
`roposal: o
`[Ho glc’
`a er all appe 1s from t e First
`are
`h
`ted]
`fMfirervaisrPropesa‘lgidays after all
`appeals from the First Action are
`1
`exhausted]
`
`12/14/2020
`Completion ofDocument Production
`12/17/2020
`Joinder ofOther Parties and Amendment ofPleadingsi
`12/21/2020
`Interim Status Report
`1—
`12/30/2020
`1Fact Discovery Cutoff
`.
`_
`L
`
`Status Conference
`1/5/2021
`Opening Expert Reports
`1/18/2021
`4
`(issues on which party has initial burden ofproof)
`‘
`i“
`Responsive Expert Reports
`2/8/2021
`
`Reply Expert Reports
`2/22/2021
`
`Parties exchange list of fact witnesses that they intend‘i
`2/22/2021
`
`
`
`_1
`
`
`
`
`
`l.
`
`,
`
`
`_i
`
`to call at trial
`
`
`-11-
`
`

`

`8§§8 iféBrEVrBBQQéfiEEfiRE fissument 26 Filed 10/23/20 Page 12 of 12 PagelD #: 1‘50
`Case 1:20-cv-00925-JFB-SRF Document 20 Filed 10/23/20 Page 12 of 12 PageID #: 170
`
`
`
`4
`_J
`
`1
`
`
`
`
`
`
`Deadline
`Event
`
`
`Parties exchange list of rebuttal witnesses that they
`3/1/2021
`Lintend to call at trial
`
`3/8/2021
`(>Close ofExpert Discovery
`3/22/2021
`Dispositive Motions
`
`Deadline for depositions of witnessesnot previously
`3/29/2021
`deposed
`’7Answering briefs to case dispositive motions
`4/12/2021
`
`Reply briefs to case dispositive motions
`4/26/2021
`Joint proposed pre-trial order
`7/7/2021
`
`Parties file joint (i) proposed voir dire, (ii)
`Three business days before the pre-trial
`preliminary jury instructions, (iii) final jury
`conference
`instructions, and (iv) special verdict forms
`
`Pretrial Conference
`7/27/2021 at 10:00 am.
`
`
`[Jury Trial (5 days)
`
`8/23/2021
`
`
`
`
`-12-
`
`