Case 1:18-cv-00937-CFC-MPT Document 29 Filed 12/20/18 Page 1 of 12 PageID #: 1855
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELA WARE
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`RETAILMENOT, INC.,
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`Plaintiff,
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`v.
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`HONEY SCIENCE CORP.,
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`Defendant.
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`)
`)
`)
`)
`) C.A. No. 18-937 (CFC) (MPT)
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`)
`)
`)
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`SCHEDULING ORDER
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`This 2" day of December, 2018, the Court having conducted an initial Rule 16
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`scheduling and planning conference pursuant to Local Rule 16.2(a) on November 15, 2018, and
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`the parties having determined after discussion that the matter cannot be resolved at this juncture
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`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)(l) Initial Disclosures and E-Discovery 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 14 days of the date of this Order. If they have
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`not already done so, the parties are to review the Default Standard for Discovery of Electronic
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`Documents, which
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`is posted at http://www.ded.uscourts.gov (see Guidelines, Electronic
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`Discovery Default Standard and Default Standard for Access to Source Code rev. 12/8/11). The
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`parties shall make their initial disclosures pursuant to Paragraph 3 of the Default Standard for
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`Discovery of Electronic Documents within 14 days of the date of this Order.
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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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`Honey Science Corp.
`Exhibit 2019
`RetailMeNot v. Honey
`IPR2019-01565
`
`Ex. 2019-0001
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`

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`3.
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`Discovery.
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`(a)
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`Limitations on Discovery. Each side is limited to a total of 50 hours of
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`taking testimony by deposition upon oral examination of the other side under Fed. R. Civ. P.
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`30(b)(l) and 30(b)(6). Each side is limited to 42 hours of taking testimony by deposition upon
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`oral examination of third parties, excluding inventors. Each side is allowed one deposition of
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`each inventor of any patents asserted by the other party. Each inventor deposition will be limited
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`to 7 hours. Each side may serve up to 35 interrogatories. Each side may serve up to 40 requests
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`for admission. Notwithstanding the foregoing, each side may serve up to 100 requests for
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`admission solely for the purpose of authentication or admissibility of evidence, or qualification
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`as prior art under 35 U.S.C. § 102.
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`(b)
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`Discovery Cut Off. All fact discovery shall be initiated so that it will be
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`completed on or before January 17, 2020. The Court encourages the parties to serve and
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`respond to contention interrogatories early in the case. Unless otherwise ordered by the Court,
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`the limitations on discovery set forth in Local Rule 26.1 shall be strictly observed.
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`( c)
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`Disclosure of Expert Testimony. Expert discovery shall be commenced to
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`be completed by May 29, 2020. For the party who has the burden of proof on the subject matter,
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`the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on or before March 6,
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`2020. Rebuttal expert reports on the same subject matter identified by another party are due on or
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`before April 10, 2020. Supplemental reports (for e.g., secondary considerations of obviousness)
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`are due May 1, 2020. Along 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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`2
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`Ex. 2019-0002
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`

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`Unless extended by agreement of the parties or by order of the Court, expert depositions
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`are limited to a maximum of 7 hours on the topic of infringement, a maximum of 7 hours on the
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`topic of validity, and a maximum of 7 hours on the topic of damages.
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`To the extent any objection to expert testimony is made pursuant to the principles
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`announced in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), as incorporated in
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`Federal Rule of Evidence 702, it shall be made by motion no later than the deadline for
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`dispositive motions set forth herein, unless otherwise ordered by the Court.
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`(d)
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`(e)
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`Supplementations under Rule 26(e) are due by February 14, 2020.
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`Discovery Matters. Should counsel find they are unable to resolve a
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`discovery matter or other matters covered by this provision, 1 the parties involved shall contact
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`chambers at (302) 573-6173 to schedule a telephone conference. At that time, counsel shall
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`advise which parties have disputes, and each moving party shall raise no more than three (3)
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`issues per motion/teleconference. Thereafter, the moving party or parties shall each file a
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`"Motion for Teleconference To Resolve Discovery Dispute(s)."2
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`The following procedures shall apply:
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`(1). Not less than seventy-two (72) hours prior to the conference, excluding weekends
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`and holidays, the party seeking relief shall file a letter with the Court, not to exceed four ( 4)
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`pages, in no less than 12 point font, outlining the issues in dispute and its position on those
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`issues. Not less than forty-eight ( 48) hours prior to the conference, excluding weekends and
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`holidays, any party opposing the application for relief may file a letter, not to exceed four (4)
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`pages, in no less than 12 point font, outlining that party's reason for its opposition.
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`To meet the import of that phrase, counsel, including Delaware counsel, are expected to
`verbally discuss the issues/concerns before seeking the Court's intervention.
`2 The suggested text for this motion can be found on the Court's website in the "Forms" tab,
`under the heading "Discovery Matters-Motion to Resolve Discovery Disputes."
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`3
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`Ex. 2019-0003
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`

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`(2).
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`Attachments/Exhibits: Generally, there should be limited attachments or exhibits
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`to the letters. For example, in a protective order dispute, only the provisions at issue should be
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`attached. Similarly, regarding interrogatory/request for production issues, only the disputed
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`interrogatory or request for production and the responses as they exist at the time of the letter
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`submissions should be attached. 3
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`(3).
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`To the extent factual issues are disputed or central to the Court's analysis,4 non-
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`conclusory, sworn declarations, only to the extent necessary to establish the facts, shall be
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`attached as exhibit(s).
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`(4).
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`A proposed order, attached as an exhibit, setting out in detail the nature of the
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`relief requested, including the date by which the requested relief is to be completed.
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`The same procedure outlined above shall apply to protective order drafting disputes,
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`except a "Joint Motion for Teleconference To Resolve Protective Order Dispute," shall be filed
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`and the parties are limited to a total of three (3) issues with one submission each. The
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`submissions shall include the party's proposal of the content for the disputed portion(s) of the
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`protective order.
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`Should the Court find further briefing necessary upon conclusion of the telephonic
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`conference, the Court will order it. Disputes or issues covered by the provisions contained herein
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`3 The history through emails, letters and meet-and-confers resulting in modification of the
`original interrogatory or request for production shall not be attached. If the interrogatory or
`request for production is modified to which an objection remains, only the modified
`interrogatory/request for production and the answer/response shall be attached, and only the
`current positions of the parties shall be reflected in the letter submissions.
`4 For example, matters addressing attorney-client privilege, work product doctrine, common
`interest doctrine, sufficiency of privilege log and other similar issues often involve factual
`evidence for which affidavits may be required. See RCA v. Data General, C.A. No. 84-270-JJF,
`1986 WL 15693 (D. Del. July 2, 1986); Willemijn Houdstermaatschaapij v. Apollo Computers,
`Inc., 707 F. Supp. 1429 (D. Del. 1989).
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`4
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`Ex. 2019-0004
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`

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`regarding motions for extension of time for briefing case dispositive motions which are related to
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`discovery matters are to be addressed in the first instance in accordance with this paragraph.
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`No motions to compel or motions for protective order shall be filed absent approval of
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`the Court. Absent expressed approval of the Court following a discovery conference, no motions
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`pursuant to FED. R. Crv. P. 37 shall be filed.
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`Counsel shall provide a list of the teleconference participants, either by including the list
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`on a separate page with the letters, or fax to Chambers at 302-573-6445 at the same time the
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`letters are e-filed. If the list is included with the letters, it will not be counted as part of the page
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`_ limitation for the letter submission.
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`(f)
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`Fact Witnesses to be Called at Trial. Within thirty (30) days following the
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`close of expert discovery, the parties shall exchange a list containing each fact witness
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`previously disclosed during discovery, including any expert witness who is also expected to
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`provide fact testimony, whom it intends to call at trial. Within thirty (30) days of this exchange,
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`the parties shall exchange a list of each rebuttal fact witness whom it intends to call at trial.
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`Parties shall have the right to depose any such fact witness not previously deposed in this case.
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`Any deposition shall be held within thirty (3 0) days of the exchange of the rebuttal list and shall
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`be limited to twenty (20) hours per side in the aggregate, unless extended by agreement or by
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`order of the Court upon good cause shown.
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`4.
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`Application to Court for Protective Order. Should counsel find it will be
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`necessary to apply to the Court for a protective order specifying terms and conditions for the
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`disclosure of confidential information, counsel should confer and attempt to reach an agreement
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`on a proposed form of order and submit it to the Court within ten days from the date of this
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`Order. Should counsel be unable to reach an agreement on a proposed form of protective order,
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`5
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`Ex. 2019-0005
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`

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`the Default Discovery Confidentiality Order shall control. Absent agreement among the parties,
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`the Default Standard of Access to Source Code shall control.
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`Any proposed protective order should include the following paragraph:
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`Other Proceedings. By entering this order and limiting the
`disclosure of information in this litigation, the Court does not
`intend to preclude another court from finding that information
`relevant and subject to disclosure in another case. Any person or
`party subject to this order who in other proceedings becomes
`subject to a motion to disclose another party's information
`designated "confidential" [the parties should list any other level of
`designation, such as "highly confidential," which may be provided
`for in the protective order] pursuant to this order shall promptly
`notify that party of the motion so that party may have an
`opportunity to appear and be heard in the other proceeding.
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`5.
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`Papers Filed Under Seal. When filing papers under seal, counsel should deliver to
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`the Clerk an original and one copy of the papers.
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`6.
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`ADR Process. To be discussed during the Rule 16 conference. On January 10,
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`2019, the parties shall jointly submit a letter to the Court addressing the following two inquiries:
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`(a) Whether the parties are interested in mediation; and
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`(b)
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`If so, whether the parties consent to the Chief Magistrate as mediator. ~ 1~ \ \~~
`~ o'
`O has ~
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`Potential Addition of Honey Patent Infringement Counterclaim. The
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`7 ..
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`15/824,237 is projected
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`, issue as U.S. Patent No. 10,1
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`, 25 on November 27, 2018. If the
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`USPTO issues the patent, and if R t iIMeNot
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`poses Honey's motion to add a counterclaim of
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`patent infringement to this case ba
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`on tha ewly issued patent, Honey shall submit a 3-page
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`letter motion to the Co
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`y January 24, 2019 at 4:0 ---p~ing to supplement Honey's
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`counterclaims
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`etaiMeNot may submit a 3-page responsive lett~ ebruary 4, 2019 at
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`.m .. No further submissions concerning Honey's motion will be permitted wit
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`t leave
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`of the Court.
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`6
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`Ex. 2019-0006
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`

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`8.
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`Interim Status Report. On September 13, 2019, counsel shall submit a joint
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`interim report to the Court on the nature of the matters in issue and the progress of discovery to
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`date.
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`9.
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`Status Conference. On October 2, 2019, the Court will hold a Rule 16(a), (b) and
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`(c) conference by telephone with counsel beginning at 9:30 AM. Plaintiffs counsel shall initiate
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`the telephone call. At the time of this conference, counsel shall also be prepared to discuss the
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`progress, if any, of settlement discussions and shall be prepared to discuss the possibility of
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`setting up a settlement conference with the Court, counsel and their clients.
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`If all parties agree that there is nothing to report, nor anything to add to the interim status - :
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`report or to this order, they shall notify the Court in writing before the conference is scheduled to
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`occur, and the conference will be removed from the Court's calendar.
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`10.
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`Tutorial Describing the Technology and Matters in Issue. If the parties believe
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`that a tutorial on the technology would be helpful, they may provide the Court by June 14, 2019,
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`with a tutorial on the technology at issue. In that regard, each party may submit a videotape/CD
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`of not more than 30 minutes. The parties may choose to present the tutorial in person. In either
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`event, the tutorial should focus on the technology in issue and should not be used to argue the
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`parties' claim construction contentions. If the parties choose to file videotapes/CDs, they should
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`be filed under seal as part of the Court's file, subject to any protective order in effect. Each party
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`may comment, in writing (in no more than 5 pages) on the opposing party's videotape/CD
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`tutorial. Any such comment shall be filed within five (5) days of submission of the
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`videotapes/CDs. As to the format selected, the parties should confirm the Court's technical
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`abilities to access the information contained in the tutorial.
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`7
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`Ex. 2019-0007
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`

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`11.
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`Case Dispositive Motions.
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`(a)
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`No early motions without leave. All case dispositive motions, an opening
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`brief, and affidavits, if any, in support of the motion shall be served and filed on or before June
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`26, 2020. No case dispositive motion under Rule 56 may be filed more than ten days before the
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`above date without leave of the Court.
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`(b)
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`Extensions. Should the parties request extension(s) for briefing of case
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`dispositive motions, the Pretrial Conference and Trial dates may be cancelled to be rescheduled
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`at the convenience of the Court.
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`(c) Word limits combined with Daubert motion word 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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`will be limited to a combined total of 10,000 words for all opening briefs, a combined total of
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`10,000 words for all answering briefs, and a combined total of 5,000 words for all reply briefs
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`regardless of the number of case dispositive motions that are filed. In the event that a party files,
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`in addition to a case dispositive motion, a Daubert motion to exclude or preclude all or any
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`portion of an expert's testimony, the total amount of words permitted for all case dispositive and
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`Daubert motions shall be increased to 12,500 words for all opening briefs, 12,500 words for all
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`answering briefs, and 6,250 words for all reply briefs for each side. The text for each brief shall
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`be 14-point and in a Times New Roman or similar typeface. Each brief must include a
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`certification by counsel that the brief complies with the type and number limitations set forth
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`above. The person who prepares the certification may rely on the word count of the word(cid:173)
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`processing system used to prepare the brief.
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`12.
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`Claim Construction Issue Identification. If the Court does not find that a limited
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`earlier claim construction would be helpful in resolving the case, on April 19, 2019, the parties
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`8
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`Ex. 2019-0008
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`

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`shall exchange a list of those claim term(s)/phrase(s) that they believe need construction and
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`their proposed claim construction of those term(s)/phrase(s). This document will not be filed
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`with 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 May 17, 2019. 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. A
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`copy of the patent(s) in issue as well as those portions of the intrinsic record relied upon sball be
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`submitted with this Joint Claim Construction Chart. In this joint submission, the parties shall not
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`provide argument.
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`13.
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`Claim Construction. Counsel must identify during the claim construction phase of
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`the case any claim language that will have a meaning to a person of ordinary skill in the art that
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`differs from the ordinary meaning. Any language not so identified will be construed according to
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`its ordinary dictionary meaning.
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`For the Asserted Retai!MeNot Patents, Retai!MeNot shall serve, but not file, its opening
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`brief, not to exceed 20 pages on June 14, 2019. Honey shall serve, but not file, its answering
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`brief, not to exceed 30 pages on July 12, 2019. RetailMeNot shall serve, but not file, its reply
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`brief, not to exceed 20 pages, on July 26, 2019. Honey shall serve, but not file, its sur-reply
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`brief, not to exceed 10 pages, on August 9, 2019.
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`If the USPTO issues a patent based on Honey's currently pending U.S. Pat. App. No.
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`15/824,237, and if Honey is subsequently permitted to add an infringement counterclaim to this
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`case based on Honey's newly issued patent ("the Asserted Honey Patent"), Honey shall serve,
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`but not file, its opening brief, not to exceed 15 pages on June 14, 2019. RetailMeNot shall serve,
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`9
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`Ex. 2019-0009
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`

`

`,,
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`but not file, its answering brief, not to exceed 20 pages on July 12, 2019. Honey shall serve, but
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`not file, its reply brief, not to exceed 15 pages, on July 26, 2019. RetailMeNot shall serve, but
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`not file, its sur-reply brief, not to exceed 10 pages, on August 9, 2019.
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`No later than August 14, 2019, the parties shall file a Joint Claim Construction Brief for
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`the Asserted Retai!MeNot Patents and a separate Joint Claim Construction Brief for the Asserted
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`Honey Patent, by copying and pasting their unfiled briefs into one brief, with their positions on
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`each claim term in sequential order, in substantially the form below:
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`Joint Claim Construction Brief
`
`I.
`
`II.
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`Agreed-upon Constructions
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`Disputed Constructions
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`A.
`
`[Term 1]
`
`1.
`2.
`3.
`4.
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`Plaintiff's Opening Position
`Defendant's Answering Position
`Plaintiff's Reply Position
`Defendant's Sur-Reply Position
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`The above format shall be followed for each claim term in dispute.
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`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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`14.
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`Hearing on Claim Construction. Beginning at 9:30 AM on August 27, 2019, the
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`Court will hear evidence and argument on claim construction.
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`15.
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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. Unless otherwise requested by the
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`Court, counsel shall not deliver copies of papers or correspondence to Chambers. Any non(cid:173)
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`dispositive motion should contain the statement required by Local Rule 7 .1.1.
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`10
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`Ex. 2019-0010
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`

`

`•
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`16.
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`Pretrial Conference. On October 9, 2020 the Court will hold a Final Pretrial
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`Conference in Chambers with counsel beginning at 4:00 p.m. Unless otherwise ordered by the
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`Court, the parties should assume that filing the pretrial order satisfies the pretrial disclosure
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`requirement of Federal Rule of Civil Procedure 26(a)(3). The parties shall file with the Court the
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`joint proposed final pretrial order with the information required by the form of Final Pretrial
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`Order which accompanies this Scheduling Order on or before September 29, 2020.
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`17. Motions in Limine. Motions in limine shall not be separately filed. All in limine
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`requests and responses thereto shall be set forth in the proposed pretrial order. Each party shall
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`be limited to 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 pages of argument and may be opposed by a maximum of
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`three pages of argument. If more than one party is supporting or opposing an in limine request,
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`such support or opposition shall be combined in a single three (3) page submission, unless
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`otherwise ordered by the Court. No separate briefing shall be submitted on in limine requests,
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`unless otherwise permitted by the Court.
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`18.
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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 4 7 and 51 the parties should file joint proposed voir dire,
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`instructions to the jury, and special verdict forms and jury interrogatories three full business days
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`before the final pretrial conference. That submission shall be accompanied by a computer
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`diskette (in WordPerfect format) which contains the instructions, proposed voir dire, special
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`verdict forms, and jury interrogatories.
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`19.
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`Trial. This matter is scheduled for a 5-to-7-day jury trial beginning at 9:30 a.m.
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`on October 26, 2020, with the subsequent trial days beginning at 9:00 a.m. The length of the
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`11
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`Ex. 2019-0011
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`

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`trial shall be discussed and determined during the Pretrial Conference. For the purpose of
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`completing pretrial preparations, counsel should plan on each side being allocated a total number
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`of hours to present their case to be determined at the Pretrial Conference.
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`12
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`Ex. 2019-0012
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`