`
`Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 1 of 12 PageID 388Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 1 of 12 PageID 388
`
`
`
`HIGH ENERGY OZONE LLC et al.,
`
`
`Plaintiffs,
`
`
`v.
`
`LARSON ELECTRONICS LLC,
`
`
`Defendant.
`
`
`
`
`
`
`Civil Action No. 3:21-cv-01166-M
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`PATENT SCHEDULING ORDER
`
` Pursuant to Fed. R. Civ. P. 16(b) and 26, the Local Civil Rules of this Court (except as
`
`modified herein), the Court’s Civil Justice Expense and Delay Reduction Plan, and in consideration
`
`of any appropriate proposal submitted by the parties, the Court enters this Patent Scheduling Order.
`
`Miscellaneous Order No. 62 is in effect except as set out in this Order. Unless otherwise ordered or
`
`specified herein, all limitations and requirements of the Federal Rules of Civil Procedure, as
`
`amended, must be observed.
`
`1. Trial Date: This case is set for jury trial on this Court’s three-week docket beginning
`
`Monday, June 5, 2023, at 9:00 AM. Counsel and the parties must be ready for trial on
`
`two (2) days’ notice at any time during this three-week period, unless the Court allows
`
`otherwise at the pretrial conference. Any potential conflicts which can now be
`
`contemplated must be called to the attention of the Court in writing within ten (10) days
`
`of the date of this Patent Scheduling Order.
`
`2. Joinder of Parties: By January 18, 2022, all motions requesting joinder of additional
`
`parties shall be filed. Except when parties are joined by amendment pursuant to
`
`
`
`EXHIBIT 1033
`
`1
`
`

`

`
`
`Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 2 of 12 PageID 389Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 2 of 12 PageID 389
`
`
`
`Paragraph 3 of this Scheduling Order, parties may be joined only upon motion to the
`
`Court.
`
`3. Amendment of Pleadings: By January 18, 2022, amendments of pleadings shall be
`
`filed. Motions for leave to amend need not be filed so long as the amendment is filed
`
`within the deadline set in this paragraph. The amending party shall attach as an exhibit to
`
`the amended complaint a redlined version of the complaint. The deadline to file a
`
`response to an amended pleading is 21 days after the date the amended pleading is
`
`served, notwithstanding expiration of the amended pleading deadline. Thereafter, a party
`
`may only amend the pleadings by leave of Court, upon a showing of good cause.
`
`4. Dispositive Motions: All motions that would dispose of all or any part of this case,
`
`including motions for summary judgment, shall be filed by February 13, 2023. Cross-
`
`motions for summary judgment shall not, except in truly extraordinary circumstances, be
`
`permitted to be filed after the dispositive motion deadline. If the parties seek to extend the
`
`dispositive motion deadline closer to the trial date than 90 days, such an extension may
`
`mean that the Court may not be able to decide such motions before trial. Delay in
`
`deciding motions will not affect the trial date. Briefs in support of responses to summary
`
`judgment motions shall be subject to the page restrictions contained in Local Rule
`
`56.5(b). The inclusion of a dispositive motion deadline does not mean that the parties can
`
`file more than one motion for summary judgment. If such a motion was filed by a party,
`
`that party would have to seek leave to file any additional motion(s) for summary
`
`judgment.
`
`5. Initial Designation of Experts: Unless otherwise stipulated or directed by Order, any
`
`party with the burden of proof on an issue shall file a written designation of the name and
`
`address of each expert witness who will testify at trial on such issue(s) and otherwise
`
`
`
`2
`
`

`

`
`
`
`
`
`
`Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 3 of 12 PageID 390Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 3 of 12 PageID 390
`
`comply with Fed. R. Civ. P. 26(a)(2) within thirty (30) days of the close of fact
`
`discovery.
`
`6. Responsive Designation of Experts: Any party without the burden of proof on an issue
`
`but who wishes to utilize an expert witness shall file a written designation of the name
`
`and address of each expert witness who will testify at trial for that party on such issue(s)
`
`and shall otherwise comply with Rule 26(a)(2) within thirty (30) days after Opening
`
`Expert Reports.
`
`7. Objections to Experts: Objections to the qualifications or competency of experts,
`
`sometimes referred to as Daubert motions, must be made in a written motion within
`
`forty-five (45) days of the close of expert discovery.
`
`8. Handling and Protection of Privileged or Trial-Preparation Material: The parties
`
`shall submit, within thirty (30) days of the date of this Order, an agreed protective order
`
`for protection of proprietary information that also delineates the handling of attorney-
`
`client and attorney-work product information. A party seeking to file documents under
`
`seal must first file a public redacted version of the documents it seeks to file under seal.
`
`Once the redacted documents have been filed, the party seeking to file the documents
`
`under seal must submit a motion to file under seal with the unredacted version of the
`
`documents it seeks to file under seal attached to the request. The parties shall exchange
`
`proposed written or visual technology tutorial presentations prior to their submission to
`
`the Court. If the parties agree on a final tutorial presentation, it shall be submitted to the
`
`Court at the Court’s request. If the parties cannot agree on a joint tutorial presentation,
`
`each side shall submit their respective presentations to the Court and serve on all parties
`
`at least seven days prior to the date set by the Court for submission to the Court.
`
`9. The parties shall adhere to the following schedule:
`
`
`
`3
`
`

`

`
`
`Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 4 of 12 PageID 391Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 4 of 12 PageID 391
`
`
`
`October 26. 2021
`
`
`
`Parties to Exchange Initial Disclosures (Fed. R.
`Civ. P. 26(a)(1))
`
`October 27, 2021
`
`November 24, 2021
`
`January 10, 2022
`
`January 17, 2022
`
`January 24, 2022
`
`January 28, 2022
`
`Proposed Protective Order and ESI Order, If
`Applicable (Fed. R. Civ. P 16(b))
`
`Plaintiffs’ Disclosure of Asserted Claims,
`Preliminary Infringement Contentions, and
`Document Production Accompanying Disclosure
`(Patent L.R. 3-1, 3-2)
`
`Defendant’s Disclosure of Preliminary Invalidity
`Contentions and Document Production
`Accompanying Preliminary Invalidity Contentions
`(Patent L.R. 3-3, 3-4)
`
`
`Amend Pleadings and Join Parties
`
`Parties to Exchange Proposed Terms and Claim
`Elements for Construction (Patent L.R. 4-1(a))
`
`Parties to Meet and Confer Regarding Proposed
`Terms and Elements (Patent L.R. 4-1(b))
`
`
`
`February 14, 2022
`
`Parties Exchange Preliminary Claim Constructions
`and Extrinsic Evidence (Patent L.R. 4-2 (a)-(b))
`
`February 18, 2022
`
`February 22, 2022
`
`March 24, 2022
`
`April 8, 2022
`
`April 22, 2022
`
`Parties to Meet and Confer Regarding Preparation of
`Joint Claim Construction & Prehearing Statement
`(Patent L.R. 4-2(c))
`
`Submission of Joint Claim Construction and
`Prehearing Statement & Deadline to Serve
`Disclosure of Claim Construction Expert Testimony
`(Patent L.R. 4-3)
`
`Completion of Claim Construction Discovery
`(Patent L.R. 4-4)
`
`Plaintiffs’ Opening claim Construction (Patent
`L.R. 4-5(a))
`
`Defendant’s Responsive Claim Construction Brief
`(Patent L.R. 4-5(b))
`
`
`
`
`4
`
`

`

`
`
`Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 5 of 12 PageID 392Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 5 of 12 PageID 392
`
`
`
`April 29, 2022
`
`May 6, 2022
`
`May 17, 2022 at 1:00 p.m.
`
`30 Days After the Court’s
`Claim Construction Ruling
`
`50 Days After the Court’s
`Claim Construction Ruling
`
`60 Days After the Court’s
`Claim Construction Ruling
`
`75 Days After the Court’s
`Claim Construction Ruling
`30 Days After Close of Fact
`Discovery
`
`30 Days After Opening Expert
`Reports
`
`14 days after Responsive Expert
`Reports
`
`45 days after Responsive Expert
`Reports
`
`February 13, 2023
`
`April 5, 2023
`
`April 20, 2023
`
`May 5, 2023
`
`May 19, 2023
`
`May 26, 2023 at 9:00 a.m.
`
`Plaintiffs’ Optional Reply Claim Construction Brief
`(Patent L.R. 4-5(c))
`
`Parties to Submit Claim Construction Chart
`(Patent L.R. 4-5(d)
`
`Claim Construction Hearing (Patent L.R. 4-6)
`
`Plaintiff to Amend Infringement Contentions (For
`Good Cause or Based on Claim Construction Ruling)
`(Patent L.R. 3-6(a))
`
`Defendant to Amend Preliminary Invalidity
`Contentions (Based on Final Infringement
`Contentions or Claim Construction Ruling) (Patent
`L.R. 3-6(b))
`
`Defendant to Make Disclosures Relating to
`Willfulness (Patent L.R. 3-8)
`
`Close of Fact Discovery
`
`Party With the Burden of Proof to Designate Experts
`and Serve Expert Reports (Fed. R. Civ. P. 26 (a)(2))
`
`Party Without the Burden of Proof to Designate
`Experts and Serve Responsive Expert Reports
`
`Joint Settlement Status Report
`
`
`Close of Expert Discovery
`
`
`Dispositive Motions and Objections to Experts,
`including Daubert Challenges
`
`Motions in Limine
`
`Joint Pretrial Order; Joint Proposed Jury
`Instructions; Joint Proposed Verdict Form
`
`Pretrial Disclosures (Fed. R. Civ. P. 26(a)(3)(A))
`
`Objections to Pretrial Disclosures (Fed. R. Civ. P.
`26(a)(3)(B))
`
`Final Pretrial Conference
`
`
`
`
`5
`
`

`

`
`
`
`
`
`
`Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 6 of 12 PageID 393Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 6 of 12 PageID 393
`
`June 5, 2023
`
`Jury Trial
`
`10. Pretrial Disclosures and Objections: Unless otherwise directed by Order, the parties
`
`must make the disclosures required by Fed. R. Civ. P. 26(a)(3)(A)(i)-(iii) by May 5,
`
`2023. Within seven (7) days thereafter, a party must serve and file a list disclosing (i) any
`
`objections to the use under Rule 32(a) of a deposition designated by another party under
`
`Rule 26(a)(3)(A)(ii), and (ii) any objection, together with the grounds therefore, that may
`
`be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii), if any.
`
`Other than exhibits on file with the Court, the objecting party must attach to the
`
`objections the materials to which the objections are directed. Counsel, or the party if not
`
`represented by counsel, must confer about exhibits and deposition designations, and
`
`make reasonable efforts to agree on admissibility prior to the pretrial conference, at
`
`which time the Court will rule on the admissibility of the exhibits.
`
`11. Completion of Discovery: 75 days after the Court issues its Claim Construction
`
`Order, all factual discovery shall be completed. 45 days after service of rebuttal expert
`
`reports, all expert discovery shall be completed. The parties may agree to extend these
`
`discovery deadlines, provided (1) the extension does not affect the trial or pretrial
`
`material submission or dispositive motion dates, and (2) prompt written notice of the
`
`extension is given to the Court. A later discovery deadline will not be an excuse to delay
`
`the deadline to file dispositive motions.
`
`12. Settlement Status Report, and Settlement Conference: Counsel, or the respective
`
`party if not represented by counsel, are directed to confer and file with the Court by 14
`
`days after responsive expert reports are due, a joint report setting forth the status of
`
`settlement negotiations and the specific efforts made by the parties to resolve this case. If
`
`no efforts have been made, the parties must state the reasons why no settlement efforts
`
`
`
`6
`
`

`

`
`
`Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 7 of 12 PageID 394Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 7 of 12 PageID 394
`
`
`
`have occurred. Counsel shall include in such report a statement about their views about
`
`ADR (timing and preference for provider, if any), and desire for a settlement conference
`
`to be conducted by the Magistrate Judge. Not later than April 14, 2023, the parties and
`
`their respective lead counsel must meet in person or by telephone conference to discuss
`
`settlement of this case. All parties must make a good faith effort to settle this case. At the
`
`conclusion of this conference, counsel must, within three business days, notify the Court
`
`in writing of the participants’ names and capacities, and the results of the settlement
`
`conference.
`
`13. Pretrial Materials:
`
`a.
`
` By April 20, 2023, the following pretrial materials must be filed:
`
`i. Pretrial Order: A joint pretrial order shall be submitted by Plaintiff's
`attorney which covers each of the matters listed in Local Rule 16.4 and
`which states the estimated length of trial. If an attorney for either party
`does not participate in the preparation of the joint pretrial order, the
`opposing attorney shall submit a separate pretrial order with an
`explanation of why a joint order was not submitted (so that the Court can
`impose sanctions, if appropriate). However, failure to agree upon
`content or language is not an excuse for submitting separate pretrial
`orders, since each party may present its version of any disputed matter
`in the joint pretrial order. When the joint pretrial order is approved by
`the Court, it will control all subsequent proceedings in this case.
`Parties shall summarize their claims and defenses in the pretrial order.
`
`ii. Witness List: Each party must file a list of witnesses who may be called by
`each party in its case in chief. Each witness list shall contain a brief
`narrative summary of the testimony to be elicited from each witness, shall
`state whether the witness has been deposed, and whether the witness’
`testimony at trial is “probable,” “possible,” “expert,” or “record custodian.”
`A copy of this list must be furnished to the Court reporter prior to trial.
`
`iii. Exhibit List and Deposition Testimony: A list of exhibits and a
`designation of portions of depositions to be offered at trial shall be filed by
`each party. The list of exhibits shall describe the documents or items in
`numbered sequence. The documents or items to be offered as exhibits shall
`be numbered by attachment of labels to correspond with the sequence on
`the exhibit list. In addition, counsel for each party intending to offer
`exhibits shall exchange a set of marked exhibits with opposing counsel at
`least 14 days before the scheduled date for trial and shall deliver a set of
`
`
`
`7
`
`

`

`
`
`
`
`
`
`
`
`Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 8 of 12 PageID 395Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 8 of 12 PageID 395
`
`marked exhibits to the Clerk’s Office, 14th Floor, marked attention Judge
`Lynn’s Chambers. Exhibits are to be placed in three-ring binders, the front
`of the binder is to be labeled with the style of case, case number, name of
`the party, and volume number, and the spine of each binder should be
`labeled with the appropriate exhibit numbers and/or range of exhibit
`numbers. The parties should make sure that the size of the exhibit binders is
`not overly cumbersome for the Court to utilize on the bench. A copy of the
`exhibit list must be furnished to the court reporter prior to trial.
`
`iv. Jury Instructions: Requested jury instructions (annotated)1 and issues
`shall be filed by each party. The instructions and issues must be tailored to
`the specific case. Proposed jury instructions shall be both e-filed and
`emailed in “Word” format to the email address
`lynnorders@txnd.uscourts.gov.
`
`v. Proposed Voir Dire Questions: Proposed voir dire questions which the Court is
`requested to ask during its examination of the jury panel must be filed. The
`Court will submit to the jury a standard written questionnaire, a copy of which is
`attached. The parties may propose necessary modifications to the form as the
`case gets closer to trial. The Court, after completion of its voir dire, will allow
`counsel additional time to conduct their own voir dire examination.
`
`14. Objections to Pretrial Materials and Motions in Limine: In addition to the
`
`objections to exhibits, and designated deposition testimony, objections to witness
`
`lists shall be filed no later than 5 days before the pretrial conference. Motions in
`
`Limine, if any, shall be filed by May 19, 2023, unless counsel, by the exercise of
`
`reasonable diligence, could not have known of the basis for the motion as of that
`
`date. Responses to such motions should be filed no later than 5 days before the
`
`pretrial conference. The parties shall confer promptly to determine what Limine
`
`items may be unobjectionable. Not later than twenty-four hours before the time
`
`
`1 “Annotated” means that whenever possible, each proposed instruction or conclusion of law shall be
`accompanied by citation to statutory or case authority, or pattern instructions. The parties should, to
`the extent possible, rely principally on Fifth Circuit and Supreme Court cases, Northern District
`precedents, and Fifth Circuit Pattern Jury Instructions.
`
`
`
`8
`
`

`

`
`
`Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 9 of 12 PageID 396Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 9 of 12 PageID 396
`
`
`
`scheduled for the pretrial conference, the parties shall advise the Court, in writing,
`
`of what Limine items remain in genuine dispute.
`
`15. Pretrial Conference: A pretrial conference in this case is set for May 26, 2023 at
`
`9:00 a.m. Each party shall be represented by lead counsel. The Court will consider at
`
`that time pretrial motions not previously decided, and procedures for trial will be
`
`discussed.
`
`16. Modification of Patent Scheduling Order: The parties may agree to modify the
`
`deadlines established by Paragraphs 2, 3, 5, 6, 7 and 11 of this Scheduling Order;
`
`provided, however, that (1) objections to experts cannot be extended to a date less
`
`than twenty-eight (28) days before trial; and (2) any extensions to deadlines must be
`
`confirmed in writing and filed promptly thereafter with the Court. If the parties seek
`
`to extend any of the deadlines set forth in Paragraphs 4, 9, 10, 13 or 14, they shall
`
`file their motions seeking such an extension before the deadline elapses. This Order
`
`shall control the disposition of this case unless it is modified by the Court upon a
`
`showing of good cause and by leave of Court. FED. R. CIV. P. 16(b). It is only under
`
`truly extraordinary circumstances that the Court will reset the trial date. If any
`
`such request is made, it must be made in writing and in accordance with the United
`
`States District Court for the Northern District of Texas Civil Justice Expense and
`
`Delay Reduction Plan and Local Rule 40.1 (motions for continuance must be signed
`
`by the party as well as by the attorney of record).
`
`17. Under Local Rule 7.1, unless otherwise directed by the Court, responses to motions
`
`must be filed by the twenty-first day after the motion is filed, and replies are to be
`
`filed by the fourteenth day after the date the response is filed. If the due date falls on
`
`
`
`9
`
`

`

`
`
`Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 10 of 12 PageID 397Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 10 of 12 PageID 397
`
`
`
`a Saturday, Sunday, or federal holiday, the response or reply is due on the next
`
`business day. Federal Rule 6(d), which provides that “[w]hen a party may or must
`
`act within a specified time after service and service is made under Rule 5(b)(2)(C),
`
`(D), (E), or (F), 3 days are added after the period would otherwise expire under Rule
`
`6(a),” does not apply to response or reply due dates, which are calculated under Local
`
`Rule 7.1 according to the motion or response’s filing date, not the date of service. If
`
`a party is unaware of the filing date of a motion or response, the party may contact
`
`the Court to ascertain that information.
`
`18. Trial Procedures: Judge Lynn allows wide-open cross examination at trial.
`
`Redirects and recrosses are limited to the immediately preceding examination. Each
`
`party is responsible for keeping track of which exhibits are admitted during trial, to
`
`confer with opposing counsel on a consolidated list, and to submit it as a table of
`
`contents to accompany the exhibits to the jury room and to file of record in the case.
`
`During trial, witnesses are to be called by their last, not first, names. If the parties
`
`have electronic evidence they intend to admit as exhibits and send back to the jury
`
`room, the parties need to bring the necessary equipment to play it in the jury room.
`
`If the documentary exhibits offered by the parties during trial are more than 15 pages,
`
`those exhibits shall be submitted to the Court Coordinator on CD at the conclusion
`
`of the trial.
`
`19. The courtroom in which this case will be tried, and in which any motion that is set
`
`for hearing will be heard, has electronic equipment to assist in the expeditious
`
`presentation of the case and making of the record. Description of this equipment and
`
`training
`
`resources
`
`for
`
`lawyers are available on
`
`the Court’s website,
`
`
`
`10
`
`

`

`
`
`Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 11 of 12 PageID 398Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 11 of 12 PageID 398
`
`
`
`http://www.txnd.uscourts.gov/judge- lynns-courtroom. The Court requires that all
`
`persons planning to use the equipment schedule training through the Court’s
`
`Information Technology Department prior to the beginning of any trial or motion
`
`hearing.
`
`20. Parties: Whenever the name of any party, or the name of the parent of a corporate
`
`entity changes during the proceeding, counsel or, if applicable, an unrepresented
`
`party, shall advise the Court of such change, within twenty (20) days of the event. It
`
`shall be the responsibility of counsel or any unrepresented party to remain fully
`
`advised of any such developments.
`
`21. The Court is aware of a trend in which fewer cases go to trial, and in which there are
`
`generally fewer speaking or “stand-up” opportunities in court, particularly for young
`
`lawyers (i.e., lawyers practicing for less than seven years). The Court strongly
`
`encourages litigants to be mindful of opportunities for young lawyers to conduct
`
`hearings before the Court, particularly for motions where the young lawyer drafted
`
`or contributed significantly to the underlying motion or response. In those instances
`
`where the Court is inclined to rule on the papers, a representation that the argument
`
`would be handled by a young lawyer will weigh in favor of holding a hearing. The
`
`Court understands that there may be circumstances where having a young lawyer
`
`handle a hearing might not be appropriate – such as where no young lawyers were
`
`involved in drafting the motion, or where the motion might be dispositive in a “bet-
`
`the-company” type case. Even so, the Court believes it is crucial to provide
`
`substantive speaking opportunities to young lawyers, and that the benefits of doing
`
`
`
`11
`
`

`

`
`
`Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 12 of 12 PageID 399Case 3:21-cv-01166-M Document 30 Filed 10/18/21 Page 12 of 12 PageID 399
`
`
`
`so will accrue to young lawyers, to clients, and to the profession generally. Thus, the
`
`Court encourages all lawyers practicing before it to keep this goal in mind.
`
`22. A motion or objection to the taking of a deposition that is filed within five business
`
`days of the notice has the effect of staying the deposition pending court order on the
`
`motion or objection; otherwise, the deposition will not be stayed except by court
`
`order.
`
`23. Compliance with this Order: Counsel and the parties are expected to comply fully
`
`with this Order. Failure to comply will cause the Court to consider the entire range
`
`of sanctions available.
`
`24. Inquiries: Questions relating to this order should be directed to the law clerk at 214-
`
`753-2424.
`
`SO ORDERED.
`
`October 18, 2021.
`
`
`
`
`
`BARBARA M. G. LYNN
`CHIEF JUDGE
`
`
`
`
`
`
`
`
`
`
`12
`
`