Case 2:22-cv-00723-GMS Document 49 Filed 12/16/22 Page 1 of 9
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`
`No. CV-22-00723-PHX-GMS
`CASE MANAGEMENT ORDER
`
`Extremity Medical, LLC,
`Plaintiff,
`
`v.
`Fusion Orthopedics, LLC,
`Defendant.
`Fusion Orthopedics, LLC,
`Counter-Claimant,
`
`v.
`Extremity Medical, LLC,
`Counter-Defendant.
`
`On December 16, 2022, a Case Management Conference was held pursuant to Rule
`16(b) of the Federal Rules of Civil Procedure. The parties met before the conference in
`accordance with Rule 26(f) and prepared a Case Management Report. On the basis of the
`Case Management Conference and the Case Management Report,
`IT IS HEREBY ORDERED:
`1.
`Deadline for Initial Disclosures. Initial disclosures required by Federal Rule
`of Civil Procedure 26(a), were exchanged by Plaintiff on December 9, 2022 and by
`Defendant on December 12, 2022.
`
`Extremity Medical, LLC
`EXHIBIT 2003
`Fusion Orthopedics v. Extremity Medical
`Case IPR2023-00894
`
`

`

`Case 2:22-cv-00723-GMS Document 49 Filed 12/16/22 Page 2 of 9
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`Deadline for Joining Parties, Amending Pleadings, and Filing Supplemental
`2.
`Pleadings. The deadline for joining parties, amending pleadings, and filing supplemental
`pleadings is 60 days from the date of this Order.
`3.
`Discovery Limitations. Depositions in this case shall be limited to seven
`hours each as provided in Rule 30(d)(2) of the Federal Rules of Civil Procedure. Each side
`may propound up to 25 interrogatories, including subparts, 25 requests for production of
`documents, including subparts, and 25 requests for admissions, including subparts. The
`limitations set forth in this paragraph may be increased by mutual agreement of the parties,
`but such an increase will not result in an extension of the discovery deadlines set forth
`below.
`
`4. The Court will incorporate the parties’ agreed upon dates set forth in the Joint
`Case Management Report (Doc. 44) with a few minor changes:
`
`Disclosure of Asserted Claims and Infringement
`Contentions
`
`Date by which initial written discovery requests and
`initial deposition notices pursuant to Rules 33 and 34
`shall be served
`
`Invalidity Contentions
`
`A date by which initial discovery requests pursuant to
`Rule 30 or 31 shall be noticed
`
`January 6, 2023
`
`January 20, 2023
`
`February 17, 2023
`
`February 24, 2023
`
`Exchange of Proposed Terms for Construction
`
`February 24, 2023
`
`Exchange of Preliminary Claim Constructions and
`Extrinsic Evidence
`
`March 3, 2023
`
`Joint Claim Construction and Prehearing Statement
`
`March 17, 2023
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`Case 2:22-cv-00723-GMS Document 49 Filed 12/16/22 Page 3 of 9
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`A date by which any Rule 35 examination will be noticed
`if such an examination is required by any issues in the
`case
`
`March 24, 2023
`
`Plaintiff’s Opening Claim Construction Brief
`
`Defendant’s Responsive Claim Construction Brief
`
`Plaintiff’s Reply Claim Construction Brief
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`April 7, 2023
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`May 12, 2023
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`June 9, 2023
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`Markman Hearing
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`June 22, 2023 at 9:00 a.m.
`
`Deadline for the completion of fact discovery
`
`45 days after the Court’s
`ruling on claim
`construction
`
`Date for full and complete expert disclosures under
`Federal Rule of Civil Procedure 26(a)(2)(A)-(C) for
`issues on which a party has the burden of proof**
`
`30 days after the
`completion of fact
`discovery
`
`Deadline for expert rebuttal reports
`
`30 days after expert
`disclosures under Federal
`Rule of Civil Procedure
`290a)(2)(A)-(C) for issues
`on which a party has the
`burden of proof
`
`Deadline for completion of all expert discovery,
`including expert depositions
`
`30 days after deadline for
`expert rebuttal reports
`
`Deadline for filing dispositive motions
`
`30 days after the
`completion of expert
`discovery
`
`Deadline for Completion of Fact Discovery. The deadline for completing fact
`4.
`discovery, including discovery by subpoena shall be (See above schedule). To ensure
`compliance with this deadline, the following rules shall apply:
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`Case 2:22-cv-00723-GMS Document 49 Filed 12/16/22 Page 4 of 9
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`Initial written discovery requests and initial deposition notices
`a.
`pursuant to Rules 33 and 34 shall be served by (See above schedule).1 In no case shall
`written discovery requests be served later than 45 days before the discovery deadline.
`b.
`Initial deposition notices pursuant to Rule 30 or 31 shall be served by
`(See above schedule). Deposition notices shall be noticed no later than five working days
`prior to the discovery deadline. A deposition commenced five days prior to the deadline
`may continue up until the deadline, as necessary.
`c.
`Notwithstanding Local Rule of Civil Procedure 7.3(c), the parties may
`mutually agree, without Court approval, to extend the time provided for discovery
`responses in Rules 33, 34, and 36 of the Federal Rules of Civil Procedure. Such agreed-
`upon extensions, however, shall not alter or extend the discovery deadlines set forth in this
`Order.
`
`Special Provisions Regarding Rule 34 Responses: Objections to Rule
`d.
`34 document production requests shall be stated with specificity; general or boilerplate
`objections are not permitted. Document production in response to a Rule 34 request must
`be completed no later than the time specified in the request or another reasonable time
`specified in the response. An objection to a Rule 34 request must state whether any
`responsive materials have been withheld on the basis of that objection.
`e.
`A date by which any Rule 35 examination will be notified, if such an
`examination is required by any issues in the case: (See above schedule).
`5.
`Deadlines for Disclosure of Experts and Completion of Expert Discovery.
`a.
`The Plaintiff(s) shall provide full and complete expert disclosures as
`required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later than (See
`above schedule).
`b.
`
`The Defendant(s) shall provide full and complete expert disclosures
`
`1 The written discovery requests and deposition notices deadline dates are considered to be
`soft deadlines and there is no need for the parties to seek an extension from the Court if the
`dates are not met. The Court will nevertheless review compliance with the dates to
`determine whether the parties have been diligent in pursuing discovery pursuant to Johnson
`v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992) should the parties
`request an extension of the Case Management Order deadlines.
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`Case 2:22-cv-00723-GMS Document 49 Filed 12/16/22 Page 5 of 9
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`as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later than
`(See above schedule).
`c.
`Rebuttal expert disclosures, if any, shall be made no later than (See
`above schedule). Rebuttal experts shall be limited to responding to opinions stated by
`initial experts.
`Expert depositions shall be completed no later than (See above
`d.
`schedule). As with fact witness depositions, expert depositions shall be scheduled to
`commence at least five working days before the deadline.
`e.
`Disclosures under Rule 26(a)(2)(A) must include the identities of
`treating physicians and other witnesses who will provide testimony under Federal Rules of
`Evidence 702, 703, or 705, but who are not required to provide expert reports under Rule
`26(a)(2)(B). Rule 26(a)(2)(C) disclosures are required for such witnesses on the dates set
`forth above. Rule 26(a)(2)(C) disclosures must identify not only the subjects on which the
`expert will testify but must also provide a summary of the facts and opinions to which the
`expert will testify. The summary, although clearly not as detailed as a Rule 26(a)(2)(B)
`report, must be sufficiently detailed to provide fair notice of what the expert will say at
`trial.2
`
`f.
`
`As stated in the Advisory Committee Notes to Rule 26 (1993
`
`Amendments), expert reports disclosed under Rule 26(a)(2)(B) must set forth “the
`testimony the witness is expected to present during direct examination, together with the
`
`reasons therefore.” Full and complete disclosures of such testimony are required on the
`dates set forth above; absent truly extraordinary circumstances, parties will not be
`permitted to supplement their expert reports after these dates.
`g.
`Each side shall be limited to one retained or specially employed expert
`
`2 In Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817 (9th Cir. 2011), the
`Ninth Circuit held that “a treating physician is only exempt from Rule 26(a)(2)(B)’s written
`report requirement to the extent that his opinions were formed during the course of
`treatment.” Id. at 826. Thus, for opinions formed outside the course of treatment, Rule
`26(a)(2)(B) written reports are required. Id. For opinions formed during the course of
`treatment, Rule 26(a)(2)(C) disclosures will suffice.
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`witness per issue.
`6.
`Discovery Disputes or Motions for Sanctions.
`a.
`The parties shall not file written discovery motions or motions for
`sanctions without leave of Court.3 If a discovery dispute arises between the parties, the
`parties promptly shall contact the Court to request a telephone conference concerning the
`dispute. The Court will seek to resolve the dispute during the telephone conference and
`may enter appropriate orders on the basis of the telephone conference. The Court may
`order written briefing if it does not resolve the dispute during the telephone conference.
`b.
`Parties shall not contact the Court concerning a discovery dispute or
`motion for sanctions without first seeking to resolve the matter through personal
`consultation and sincere effort as required by Local Rule of Civil Procedure 7.2(j). Any
`briefing ordered by the Court shall also comply with Local Rule of Civil Procedure 7.2(j).
`c.
`Absent extraordinary circumstances, the Court will not entertain fact
`discovery disputes after the deadline for completion of fact discovery and will not entertain
`expert discovery disputes after the deadline for completion of expert discovery.
`7.
`Deadline for Filing Dispositive Motions.
`Dispositive motions shall be filed no later than 30 days after
`a.
`completion of expert discovery. Such motions must comply in all respects with the
`Federal Rules of Civil Procedure and the Local Rules.
`b.
`No party shall file more than one motion for summary judgment under
`Rule 56 of the Federal Rules of Civil Procedure unless permission is first obtained, by joint
`telephone call, from the Court.
`c.
`Statements of fact required by Local Rule of Civil Procedure 56.1
`shall not exceed ten pages in length, exclusive of exhibits.
`d.
`Failure to respond to a motion within the time periods provided in
`Local Rule of Civil Procedure 7.2 will be deemed a consent to the denial or granting of the
`motion and the Court may dispose of the motion summarily pursuant to Local Rule of Civil
`
`3 The prohibition on “written discovery motions” includes any written materials delivered
`or faxed to the Court, including hand-delivered “correspondence” with attachments.
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`Case 2:22-cv-00723-GMS Document 49 Filed 12/16/22 Page 7 of 9
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`Procedure 7.2(I).
`The parties shall not notice oral argument on any motion. Instead, a
`e.
`party desiring oral argument shall place the words "Oral Argument Requested"
`immediately below the title of the motion pursuant to Local Rule of Civil Procedure 7.2(f).
`The Court will issue a Minute Entry Order scheduling oral argument as it deems
`appropriate.
`
`8.
`
`Briefing Requirements.
`a.
`All memoranda filed with the Court shall comply with Local Rule of
`Civil Procedure 7.1(b) requiring 13-point font in text and footnotes.
`b.
`Citations in support of any assertion in the text shall be included in
`the text, not in footnotes.
`9.
`Deadline for Engaging in Good Faith Settlement Talks. All parties and their
`counsel shall meet in person and engage in good faith settlement talks no later than July
`28, 2023. Upon completion of such settlement talks, and in no event later than five working
`days after the deadline set forth in the preceding sentence, the parties shall file with the
`Court a Joint Report on Settlement Talks executed by or on behalf of all counsel. The
`Report shall inform the Court that good faith settlement talks have been held and shall
`report on the outcome of such talks. The parties shall indicate whether assistance from the
`Court is needed in seeking settlement of the case. The parties shall promptly notify the
`Court at any time when settlement is reached during the course of this litigation.
`10. Deadline for Notice of Readiness for Pretrial Conference. The Plaintiff(s)
`shall notify the Court that the parties are ready for scheduling of a Final Pretrial Conference
`pursuant to Rule 16(d) of the Federal Rules of Civil Procedure. The Plaintiff(s) shall file
`and serve this notice within seven (7) days after the dispositive motion deadline if no
`dispositive motions are pending on that date. If dispositive motions are pending,
`Plaintiff(s) shall file and serve such notice within seven (7) days after the resolution of
`dispositive motions. The Court will then issue an Order Setting Final Pretrial Conference
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`Case 2:22-cv-00723-GMS Document 49 Filed 12/16/22 Page 8 of 9
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`that (a) sets deadlines for briefing motions in limine, (b) includes a form for the completion
`of the parties' joint proposed Final Pretrial Order, and (c) otherwise instructs the parties
`concerning their duties in preparing for the Final Pretrial Conference. A firm trial date will
`be set at the Final Pretrial Conference.
`The Deadlines Are Real. The parties are advised that the Court intends
`11.
`to enforce the deadlines set forth in this Order and should plan their litigation
`activities accordingly. Even if all parties stipulate to an extension, the Court will not
`extend the deadlines, absent good cause to do so. The pendency of settlement
`discussions or the desire to schedule mediation does not constitute good cause, unless
`discovery is substantially complete and the extension requested is minimal.
`Dated this 16th day of December, 2022.
`
`.
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`Case 2:22-cv-00723-GMS Document 49 Filed 12/16/22 Page 9 of 9
`Case 2:22-cv-00723-GMS Document 49 Filed 12/16/22 Page 9 of 9
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`—C0AHANHnABPWNN
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