`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`PACIFIC BIOSCIENCES OF CALIFORNIA,
`
`INC.
`
`vs.
`
`Plaintiff,
`
`C.A. No. 17-cv-275-LPS
`C.A. No. 17-cv-1353-LPS
`
`JURY TRIAL DEMANDED
`
`OXFORD NANOPORE TECHNOLOGIES,
`INC.
`
`Defendant
`
`..\\,.. ~CHEDULING ORDER
`
`This day of \ ~
`
`'1 ~ '. ~:e'clurt~~in~iconducted a Case Management
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`Conference/Rule 16 scheduling and planning conference pursuant to Local Rule 16.2( a)
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`and Judge Stark's Revised Procedures for Managing Patent Cases (which is posted at
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`http://www.ded.uscourts.gov, see Chambers, Judge Leonard P. Stark, Patent Cases) on
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`February 9; 2018, and the parties having determined after discussion that the matter cannot be
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`resolved at this juncture by settlement, voluntary mediation, or binding arbitration;
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`IT IS HEREBY ORDERED that:
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`1.
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`Rule 26(a)(l) Initial Disclosures and E-Discoverv Default Standard. Unless
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`otherwise agreed to by the parties, the parties shall make their initial disclosures pursuant to
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`Federal Rule of Civil Procedure 26(a)(l) within five (5) days of the date of this Order. If
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`they have not already done so, the parties are to review the Court's Default Standard for
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`Discovery, Including Discovery of Electronically Stored Information ("ESf') (which is
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`posted at http:/lwww.ded.uscourts.gov: see Other Resources, Default Standards for
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`Discovery, and is incorporated herein by reference).
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`1
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`PACBIO Ex. 2007 p.1
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`Case 1:17-cv-01353-LPS Document 35 Filed 02/20/18 Page 2 of 15 PageID #: 1477
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`2.
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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 March 15, 2019.
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`· 3.
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`Application to Court for Protective Order. Should counsel find it will be necessary
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`to apply to the Court for a protective order specifying terms and conditions for the disclosure of
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`confidential information, counsel, should confer and attempt to reach an agreement on a proposed
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`form of order and submit it to the Court within ten (10) days from the date· of this Order. Should
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`counsel be unable to reach an agreement on a proposed form of order, counsel must follow the
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`provisions of Paragraph 8(g) below.
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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 case, the
`Court does not intend to preclude another court from
`finding that information may be relevant and subject
`to disclosure in another case. Any person or party
`subject to this order who becomes subject to a
`motion to disclose another party's information
`designated "confidential" [theparties should list any
`other level of designation, such as "highly
`confidential," which may be provided for in the
`protective order] pursuantto this order shall
`promptly notify that party of the motion so that the
`party may have an opportunity to appear and be
`heard on whether that information should be
`disclosed.
`
`4.
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`Papers Filed Under Seal. In accordance with section G of the Administrative
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`Procedures Governing Filing and Service by Electronic Means, a redacted version of any
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`sealed document shall be filed electronically within seven (7) days of the filing of the sealed
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`document.
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`Should any party intend to request to seal or redact all or any portion of a transcript of
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`2
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`PACBIO Ex. 2007 p.2
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`Case 1:17-cv-01353-LPS Document 35 Filed 02/20/18 Page 3 of 15 PageID #: 1478
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`a court proceeding (including a teleconference), such party should expressly note that intent at
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`the start of the court proceeding. Should the party subsequently choose to make a request for
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`sealing or redaction, it must, promptly after the completion of the transcript, file with the
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`Court a motion for sealing/redaction, and include as attachments (1) a copy of the complete
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`transcript highlighted so the Court can easily identify and read the text proposed to be
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`sealed/redacted, and (2) a copy of the proposed redacted/sealed transcript. With their request,
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`the party seeking redactions must demonstrate why there is good cause for the redactions and
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`why disclosure of the redacted material would work a clearly defined and serious injury to the
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`party seeking redaction.
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`5.
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`Courtesy Copies. Other than with respect to "discovery matters," which are
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`governed by paragraph 8(g), and the final pretrial order, which is governed by paragraph 20,
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`the parties shall provide to the Court two (2) courtesy copies of all briefs and one (1) courtesy
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`copy of any other document filed in support of any briefs (i.e., appendices, exhibits,
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`declarations, affidavits etc.). This provision also applies to papers filed under seal.
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`6.
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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.
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`7.
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`Disclosures. Absent agreement among the parties, and approval of the Court:
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`a.
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`By March 9, 2018, Plaintiff shall identify the accused product(s),
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`including accused methods and systems, and its damages model, as well as the asserted
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`patent( s) that the accused product(s) allegedly infringe(s). Plaintiff shall also produce the
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`file history for each asserted patent.
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`3
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`PACBIO Ex. 2007 p.3
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`Case 1:17-cv-01353-LPS Document 35 Filed 02/20/18 Page 4 of 15 PageID #: 1479
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`b.
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`·By April 13, 2018, Defendant shall produce core technical documents
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`related to the accused product( s ), sufficient to show how the accused product( s) work( s ),
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`including but not limited to non-publicly available operation manuals, product literature,
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`schematics, and specifications. Defendant shall also produce sales figures for the accused
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`product( s ).
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`c.
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`By May 11, 2018, Plaintiffshallproduceaninitialclaimchartrelatingeach
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`known accused product to the asserted claims each such product allegedly infringes. ·
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`d.
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`By July 13, 2018, Defendant shall produce its initial invalidity contentions
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`for each asserted claim, as well as the known related invalidating references.
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`By March 16, 2019, Plaintiff shall provide final infringement contentions.
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`e.
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`f.
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`.
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`.
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`By March 29, 2019, Defendant shall provide final invalidity contentions.
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`.
`.
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`.
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`. .
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`.
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`8.
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`Discovery. Unless otherwise ordered by i:he Coi:i#, the llinitations on discovery
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`set forth in Local Rule 26.1 shall be strictlyobserved.
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`a.
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`Fact Discovery Cut Off. All non-expert discovery in this case shall
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`be initiated so that it will be completed on or before May 3, 2019.
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`b.
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`Document Production. Document production shall be substantially
`
`. complete by November 16, 2018.
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`c.
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`Requests for Admission. A maximum of 40 requests for admission are
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`permitted for each side.
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`d.
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`Interrogatories.
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`i.
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`Amaximum of 30 interrogatories, including contention
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`interrogatories, are permitted for each side.
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`4
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`PACBIO Ex. 2007 p.4
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`Case 1:17-cv-01353-LPS Document 35 Filed 02/20/18 Page 5 of 15 PageID #: 1480
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`11.
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`The Court encourages the parties to serve and respond to
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`contention interrogatories early in the case. In the absence of
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`agreement among the parties, contention interrogatories, if filed,
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`shall first be addressed by the party with the burden of proof.
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`The adequacy of all interrogatory answers shall be judged by the
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`level of detail each party provides; i.e., the more detail a party
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`provides, the more detail a party shall receive.
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`e.
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`Depositions.
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`i.
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`Limitation on Hours for Deposition Discovery. Each side is limited
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`to a total of 120 hours of tajcing testimony 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
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`district court must ordinarily be required, upon request, to submit to
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`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. A
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`defendant who becomes a counterclaimant, cross-claimant, or third(cid:173)
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`party plaintiff shall be considered as having filed an action in this
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`Court for the purpose of this provision.
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`f.
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`Disclosure of Expert Testimony.
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`1.
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`Expert Reports. For the party who has the initial burden of proof
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`on the subject matter, the initial Federal Rule 26(a)(2) disclosure of
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`5
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`PACBIO Ex. 2007 p.5
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`Case 1:17-cv-01353-LPS Document 35 Filed 02/20/18 Page 6 of 15 PageID #: 1481
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`expert testimony is due on or before May 17, 2019. The supplemental
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`disclosure to contradict or rebut evidence on the same matter
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`identified by another party is due on or before June 21, 2019. Reply
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`expert reports from the party with the initial burden of proof are due
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`on or before July 5, 2019. No other expert reports will be permitted
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`without either the consent of all parties or leave of the Court. Along
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`with the submissions of the expert reports, the parties shall advise of
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`the dates and times of their experts' availability for deposition.
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`Expert discovery shall be completed by August 9, 2019.
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`II.
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`Expert Report Supplementation. The parties agree they will permit
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`expert declarations to be filed in connection . with motions briefing
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`(including case-dispositive motions) except to the extent that such
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`expert declarations exceed the scope of the relevant expert's report.
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`iii.
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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
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`Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), as
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`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
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`herein, unless otheiwise ordered by the Court. Briefing on such
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`motions is subject to the page limits set out in connection with
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`briefing of case dispositive motions.
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`g.
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`Discovery Matters and Disputes Relating to Protective Orders.
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`6
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`PACBIO Ex. 2007 p.6
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`Case 1:17-cv-01353-LPS Document 35 Filed 02/20/18 Page 7 of 15 PageID #: 1482
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`1.
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`Any discovery motion filed without first complying with the
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`following procedures will be denied without prejudice to renew
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`pursuant to these procedures.
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`ii.
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`Should counsel find, after good faith efforts including verbal
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`communication among Delaware and Lead Counsel for· all parties to
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`the dispute- that they are unable to resolve a discovery matter or a
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`dispute relating to a protective order, the parties involved in the
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`discovery matter or protective order dispute shall submit a joint
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`letter in substantially the following form:
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`Dear Judge Stark:
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`The parties in the above- ·
`referenced matter write to request the
`scheduling of a discovery teleconference.
`
`The following attorneys,
`including at least one Delaware
`Counsel and at least one Lead Counsel
`per party, participated in a verbal meet(cid:173)
`and-confer (in person and/or by
`telephone) on the following date(s):
`
`Delaware Counsel: _______ _
`
`Lead Counsel: ~~~~~~~~~-
`
`The disputes requiring judicial
`attention are listed below:
`
`[provide here anon-argumentative list of
`disputes requiring judicial attention]
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`111.
`
`On a date to be set by separate order, generally not less than forty-
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`7
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`PACBIO Ex. 2007 p.7
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`Case 1:17-cv-01353-LPS Document 35 Filed 02/20/18 Page 8 of 15 PageID #: 1483
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`eight ( 48) hours prior to the conference, the party seeking relief shall
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`file with the Court a letter, not to exceed three (3) pages, outlining the
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`issues in dispute and its position on those issues. On a date to be set
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`by separate order, but generally ·not less than twenty-four (24) hours
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`prior to the conference, any party opposing the application for relief
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`may file a letter, not to exceed three (3) pages, outlining that party's
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`reasons for its opposition.
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`iv.
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`Each party shall submit two (2) courtesy copies of its discovery
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`letter and any attachments.
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`v.
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`Should the Court find further briefing necessary upon conclusion of the
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`telephone conference, the Court will order it. Alternatively, the Court
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`may choose to resolve the dispute prior to the telephone conference and
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`will, in that event, cancel the conference.
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`9.
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`Motions to Amend.
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`a.
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`Any motion to amend (including amotion for leave to amend) a pleading
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`shall NOT be accompanied by an opening brief but shall, instead, be accompanied by a letter, not
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`to exceed three (3) pages, describing the basis for the requested relief, and shall attach the
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`proposed amended pleading as well as a "blackline" comparison to the prior pleading.
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`b.
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`Within seven (7) days after the filing of.a motion in compliance with this
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`Order, anyparty opposing such a motion shall file a responsive letter, not to exceed five (5)
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`pages.
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`c.
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`Within three (3) days thereafter, the moving party may file a reply letter,
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`8
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`PACBIO Ex. 2007 p.8
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`Case 1:17-cv-01353-LPS Document 35 Filed 02/20/18 Page 9 of 15 PageID #: 1484
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`not to exceed two (2) pages, and, by this same date, the parties shall file a letter requesting a
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`teleconference to address the motion to amend.
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`10. Motions to Strike.
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`a.
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`Any motion to strike any pleading or other document shall NOT be
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`accompanied by an opening brief but shall, instead, be accompanied by a letter, not to excee~
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`three (3) pages, describing the basis for the requested relief, and shall attach the document to ·
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`be stricken.
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`b.
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`Within seven (7) days after the filing of a motion in compliance with this
`
`Order, anyparty opposing such a motion shall file a responsive letter, not to exceed five (5)
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`pages.
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`c.
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`. Within three (3) days thereafter, the moving party may file a reply
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`letter, not to exceed two (2) pages, and, by this same date, the parties shall file a letter
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`requesting a teleconference to address the motion to strike.
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`11.
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`Tutorial Describing the Technology and Matters in Issue. Unless otherwise
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`ordered by the Court, the parties shall provide the Court, no later than the date on which their
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`opening claim construction briefs are due, a tutorial on the technology at issue. In that regard,
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`the parties may separately or jointly submit a DVD of not more than thirty (30) minutes. The
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`tutorial should focus on the technology in issue and should not be used for argument. The
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`parties may choose to file their tutorial(s) under seal, subject to any protective order in effect.
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`Each party may comment, in writing (in no more than five (5) pages) on the opposing-party's
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`tutorial. Any such comment shall be filed no later than the date on which the answering claim
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`construction briefs are due. As to the format selected, the parties should confirm the Court's
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`9
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`PACBIO Ex. 2007 p.9
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`Case 1:17-cv-01353-LPS Document 35 Filed 02/20/18 Page 10 of 15 PageID #: 1485
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`technical abilities to access the information contained in the tutorial (currently best are "mpeg" or
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`"quicktime").
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`12.
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`Claim Construction Issue Identification. On July 13, 2018, the parties shall
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`exchange a list of those claim term( s )/phrase( s) that they believe need construction and their
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`proposed claim construction of those term(s)/phrase(s). This document will not be filed with
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`the Court. Subsequent to exchanging that list, the parties will meet and confer to prepare a
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`Joint Claim Construction Chart to be submitted on August 10, 2018. The parties' Joint Claim
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`Construction Chart should identify for the Court the term(s)/phrase(s) of the claim(s) in issue,
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`and should include each party's proposed construction of the disputed claim language with
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`citation(s) only to the intrinsic evidence in support of their respective proposed constructions.
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`A copy of the patent( s) in issue as well as those portions of the intrinsic record relied upon
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`shall be submitted with this Joint Claim Construction Chart. In this joint submission, the parties
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`shall not provide argument.
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`13.
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`Claim Construction Briefing. The parties shall contemporaneously submit
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`initial briefs on claim construction issues on September 7, 2018. The parties'
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`answering/responsive briefs shall be contemporaneously submitted on October 5, 2018. No
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`reply briefs or supplemental papers on claim construction shall be submitted without leave of
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`the Court. Local Rule 7.1.3(4) shall control the page limitations for initial (opening) and
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`responsive (answering) briefs.
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`14.
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`Hearing on Claim Construction. Beginning at 1:00 p.m. on November 5, 2018, the
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`Court will hear 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 their answering claim construction briefs are due: (i)
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`10
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`PACBIO Ex. 2007 p.10
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`Case 1:17-cv-01353-LPS Document 35 Filed 02/20/18 Page 11 of 15 PageID #: 1486
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`whether they request leave to present testimony at the hearing; and (ii} the amount of time they
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`are requesting be allocated to them for the hearing.
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`Provided that the parties comply with all portions of this Scheduling Order,· and ariy
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`other orders of the Court, the parties should anticipate that the Court will issue its claim
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`construction order within sixty ( 60) days of the conclusion of the claim construction hearing.
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`If the Court is unable to meet this goal, it will advise the parties no later than sixty (60) days
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`after the conclusion of the claim construction hearing.
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`15.
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`Interim Status Report. On January 11, 2019, counsel shall submit ajoint
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`letter to the Court with an interim report on the nature of the matters in issue and the
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`progress of discovery to date. Thereafter, if the Court deems it necessary, it will schedule
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`a status conference.
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`16.
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`Supplementation. Absent agreement among the parties, and approval of
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`the Court, no later than March 29, 2019 the parties must finally supplement, inter alia, the·
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`identification of all accused products and of all invalidity references.
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`17.
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`Case Dispositive Motions. 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 August 30,
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`2019. Briefing will be presented pursuant to the Court's Local Rules, as modified by this.
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`Order.
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`a.
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`No early motions without leave. No case dispositive motion under Rule
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`56 may be filed more than ten (10) days before the above date without leave of the Court.
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`b.
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`Page limits combined with Daubert motion page limits. Each party is
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`permitted to file as many case dispositive motions as desired; provided, however, that each SIDE
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`11
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`PACBIO Ex. 2007 p.11
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`Case 1:17-cv-01353-LPS Document 35 Filed 02/20/18 Page 12 of 15 PageID #: 1487
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`will be limited to a combined total of 40 pages for all opening briefs, a combined total of 40 pages
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`for all answering briefs, and a combined total of 20 pages for all reply briefs regardless of the
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`number of case dispositive motions that are filed. In the event that a party files, in addition to a
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`case dispositive motion, a Daubert motion to exclude orpreclude all or any portion of an expert's
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`testimony, the total amount of pages permitted for all case dispositive and Daubert motions shall
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`be increased to 50 pages for all opening briefs, 50 pages for all answering briefs, and 25 pages for
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`all reply briefs for each SIDE1
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`c.
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`Hearing. The Court will hear argument on all pending case dispositive
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`and Daubert motions on November 5, 2019 beginning at 1 :00 p.m. Subject to further order of
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`the Court, each side will be allocated a total of forty-five ( 45) minutes to present its argument
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`on all pending motions ..
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`18.
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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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`19.
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`Pretrial Conference. On February 27, 2020, the Court will hold a pretrial
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`conference in Court with counsel beginning at 9:00 a.m. Unless otherwise ordered by the
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`Court, the parties should assume that filing the pretrial order satisfies the pretrial
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`disclosure requirement of Federal Rule of Civil Procedure 26(a)(3). The parties shall file
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`with the Court the joint proposed final pretrial order with the information required by the
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`1 The parties must work together to ensure that the Court receives no more than a total of
`250 pages (i.e., 50+ 50+ 25 regarding one side's motions, and 50+ 50+ 25 regarding the other side's
`motions) of briefing on all case dispositive motions and Daubert motions that are covered by this
`scheduling order and any other scheduling order entered in any related case that is proceeding on a
`consolidated or coordinated pretrial schedule.
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`12
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`PACBIO Ex. 2007 p.12
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`Case 1:17-cv-01353-LPS Document 35 Filed 02/20/18 Page 13 of 15 PageID #: 1488
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`form of Revised Final Pretrial Order-Patent, which can be found on the Court's website
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`(www.ded.uscourts.gov), on or before February 20, 2020. Unless otherwise ordered by
`
`the Court, the parties shall comply with the timeframes set forth in Local Rule 16.3(d)(l )-
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`•
`
`!
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`(3) for the preparation of proposed final pretrial order.
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`The parties shall provide the Court two (2) courtesy copies of the joint proposed final
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`pretrial order and all attachments.
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`As noted in the Revised Final Pretrial Order-Patent, the parties shall include in
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`their joint proposed final pretrial order, among other things:
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`a.
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`a request for a specific number of hours for their trial presentations, as
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`well as a requested number of days, based on the assumption that in a typical jury trial day (in
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`which thereisnotjury selection,jury instruction, or deliberations), there will be 5 to 6 hours of
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`trial time, and in a typical bench trial day there will be 6 to 7 hours of trial time;
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`b.
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`their position as to whether the Court should allow objections to efforts to
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`impeach a witness with prior testimony, including objections based on lack of completeness
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`and/ or lack of inconsistency;
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`c.
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`their position as to whether the Court should rule at trial on objections to ·
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`expert testimony as beyond the scope of prior expert disclosures, taking time. from the parties'
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`trial presentation to argue and decide such objections, or defer ruling on all such objections
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`unless renewed in writing following trial, subject to the proviso that a party prevailing on such a
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`post-trial objection will be entitled to have all of its costs associated with a new trial paid for by
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`the party that elicited the improper expert testimony at the earlier trial; and
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`d.
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`their position as to how to make motions for judgment as a matter of law,
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`13
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`PACBIO Ex. 2007 p.13
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`Case 1:17-cv-01353-LPS Document 35 Filed 02/20/18 Page 14 of 15 PageID #: 1489
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`whether it be immediately at the appropriate point during trial or at a subsequent break, whether
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`the jury should be in or out of the courtroom, and whether such motions may be supplemented in
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`writing.
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`20. Motions inLimine. Motions in limine shall not be separately filed. All in limtne
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`requests and responses thereto shall be set forth in the proposed pretrial order. Each SIDE shall
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`be limited to three (3) in limine requests, unless otherwise permitted by the Court. The in limine
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`request and any response shall contain the authorities relied upon; each in limine request may be
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`supported by a maximum of three (3) pages of argument and maybe opposed by a maximum of
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`three (3) pages of argument, and the side 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
`
`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 (l)page reply), unless otherwise ordered
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`~y 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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`21.
`
`. Jury Instructions, Voir Dire, and Special Verdict Forms. Where a case is to be
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`tried to ajury, pursuant to Local Rules 47 and 51 the parties should file (i) proposed voir dire,
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`(ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict forms
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`three (3) business days before the final pretrial conference. This submission shall be
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`accompanied by a courtesy copy containing electronic files of these documents, in
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`Word.Perfect or Microsoft Word format, which may be submitted by e-mail to Judge Stark's
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`staff.
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`22. Trial. This matter is scheduled fora 5 day jury trialbeginningat9:30 a.m. on March
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`14
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`PACBIO Ex. 2007 p.14
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`Case 1:17-cv-01353-LPS Document 35 Filed 02/20/18 Page 15 of 15 PageID #: 1490
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`9, 2020, with the subsequent trial days beginning at 9:00a.m.2 Until the case is submitted to the
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`jury for deliberations, thejury will be excused each day at 4:30 p.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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`23.
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`Judgment on Verdict and Post-Trial Status Report. Within seven (7) days!
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`after ajury returns a verdict in any portion of ajury trial, the parties shalljointly submit a
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`I
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`form of order to enter judgment on the verdict. At the same time, the parties shall submit a
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`joint status report, ind1cating among other things how the case should proceed and listing: any
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`post-trial motions each party intends to file.
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`24.
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`Post-Trial Motions. Unless otherwise ordered by the Court, all SIDES are limited
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`to amaximum of20pages of opening briefs, 20pages of answering briefs, and lOpages of reply
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`briefs relating to any post-trial motions filed by that side, no matter how many such motions are
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`filed.
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`CT WDGE
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`2 Given the current scope of the pleadings in these cases, Defendant respectfully requests
`that the Court set aside 8 days for a consolidated trial of these cases, and reserves its right to seek
`modification of the length and consolidation for trial for these cases closer to the trial date.
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`15
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`PACBIO Ex. 2007 p.15
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`