Case 2:20-cv-00337-JRG Document 51 Filed 02/09/21 Page 1 of 8 PageID #: 333
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`SEAGEN INC.,
`
`v.
`
`Plaintiff,
`
`
`
`Case No. 2:20-cv-00337-JRG
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`DISCOVERY ORDER
`
`DAIICHI SANKYO CO., LTD.,
`
`
`
`
`
`
`
`
`
`
`Defendant.
`
`After a review of the pleaded claims and defenses in this action, in furtherance of the
`
`management of the Court’s docket under Federal Rule of Civil Procedure 16, and after receiving
`
`the input of the parties to this action, it is ORDERED AS FOLLOWS:
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`1.
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`Initial Disclosures. In lieu of the disclosures required by Federal Rule of Civil Procedure
`
`26(a)(1), each party shall disclose to every other party the following information:
`
`(a)
`
`(b)
`
`(c)
`
`the correct names of the parties to the lawsuit;
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`the name, address, and telephone number of any potential parties;
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`the legal theories and, in general, the factual bases of the disclosing party’s claims
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`or defenses (the disclosing party need not marshal all evidence that may be offered
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`at trial);
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`(d)
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`the name, address, and telephone number of persons having knowledge of relevant
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`facts, a brief statement of each identified person’s connection with the case, and a
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`brief, fair summary of the substance of the information known by any such person;
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`(e)
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`any indemnity and insuring agreements under which any person or entity carrying
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`on an insurance business may be liable to satisfy part or all of a judgment entered
`
`
`
`
`
`SEAGEN INC.,
`
`v.
`
`Plaintiff,
`
`
`
`Case No. 2:20-cv-00337-JRG
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`DISCOVERY ORDER
`
`DAIICHI SANKYO CO., LTD.,
`
`
`
`
`
`
`
`
`
`
`Defendant.
`
`After a review of the pleaded claims and defenses in this action, in furtherance of the
`
`management of the Court’s docket under Federal Rule of Civil Procedure 16, and after receiving
`
`the input of the parties to this action, it is ORDERED AS FOLLOWS:
`
`1.
`
`Initial Disclosures. In lieu of the disclosures required by Federal Rule of Civil Procedure
`
`26(a)(1), each party shall disclose to every other party the following information:
`
`(a)
`
`(b)
`
`(c)
`
`the correct names of the parties to the lawsuit;
`
`the name, address, and telephone number of any potential parties;
`
`the legal theories and, in general, the factual bases of the disclosing party’s claims
`
`or defenses (the disclosing party need not marshal all evidence that may be offered
`
`at trial);
`
`(d)
`
`the name, address, and telephone number of persons having knowledge of relevant
`
`facts, a brief statement of each identified person’s connection with the case, and a
`
`brief, fair summary of the substance of the information known by any such person;
`
`(e)
`
`any indemnity and insuring agreements under which any person or entity carrying
`
`on an insurance business may be liable to satisfy part or all of a judgment entered
`
`
`
`
`
`Case 2:20-cv-00337-JRG Document 51 Filed 02/09/21 Page 2 of 8 PageID #: 334
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`
`
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`in this action or to indemnify or reimburse for payments made to satisfy the
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`judgment;
`
`(f)
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`any settlement agreements relevant to the subject matter of this action; and
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`(g)
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`any statement of any party to the litigation.
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`2.
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`Disclosure of Expert Testimony. A party must disclose to the other parties the identity
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`of any witness it may use at trial to present evidence under Federal Rule of Evidence 702,
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`703 or 705, and:
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`(a)
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`if the witness is one retained or specially employed to provide expert testimony in
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`the case or one whose duties as the party’s employee regularly involve giving expert
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`testimony, provide the disclosures required by Federal Rule of Civil Procedure
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`26(a)(2)(B) and Local Rule CV-26; and
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`(b)
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`for all other such witnesses, provide the disclosure required by Federal Rule of Civil
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`Procedure 26(a)(2)(C).
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`3.
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`Additional Disclosures. Without awaiting a discovery request,1 each party will make the
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`following disclosures to every other party:
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`(a)
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`provide the disclosures required by the Patent Rules for the Eastern District of
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`Texas with the following modifications to P.R. 3-1 and P.R. 3-3:
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`i.
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`If a party claiming patent infringement asserts that a claim element is a
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`software limitation, the party need not comply with P.R. 3-1 for those claim
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`elements until 30 days after source code for each Accused Instrumentality
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`is produced by the opposing party. Thereafter, the party claiming patent
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`1 The Court anticipates that this disclosure requirement will obviate the need for requests
`for production.
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`- 2 -
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`Case 2:20-cv-00337-JRG Document 51 Filed 02/09/21 Page 3 of 8 PageID #: 335
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`
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`4.
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`5.
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`infringement shall identify, on an element-by-element basis for each
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`asserted claim, what source code of each Accused Instrumentality allegedly
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`satisfies the software limitations of the asserted claim elements.
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`ii.
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`If a party claiming patent infringement exercises the provisions of
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`Paragraph 3(a)(i) of this Discovery Order, the party opposing a claim of
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`patent infringement may serve, not later than 30 days after receipt of a
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`Paragraph 3(a)(i) disclosure, supplemental “Invalidity Contentions” that
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`amend only those claim elements identified as software limitations by the
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`party claiming patent infringement.
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`(b)
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`produce or permit the inspection of all documents, electronically stored
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`information, and tangible things in the possession, custody, or control of the party
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`that are relevant to the pleaded claims or defenses involved in this action, except to
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`the extent these disclosures are affected by the time limits set forth in the Patent
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`Rules for the Eastern District of Texas; and
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`(c)
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`provide a complete computation of any category of damages claimed by any party
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`to the action, and produce or permit the inspection of documents or other
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`evidentiary material on which such computation is based, including materials
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`bearing on the nature and extent of injuries suffered, except that the disclosure of
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`the computation of damages may be deferred until the time for Expert Disclosures
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`if a party will rely on a damages expert.
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`Protective Orders. The Court will enter the parties’ Agreed Protective Order.
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`Discovery Limitations. The discovery in this cause is limited to the disclosures described
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`in Paragraphs 1-3 together with:
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`- 3 -
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`Case 2:20-cv-00337-JRG Document 51 Filed 02/09/21 Page 4 of 8 PageID #: 336
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`
`
`
`(a)
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`25 Interrogatories per party. The parties may modify the foregoing limit either by
`
`agreement or by order of the Court for good cause shown after compliance with the
`
`applicable procedures for resolution of discovery disputes.
`
`(b)
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`40 Requests for Admission per party. The numerical limit on Request for
`
`Admission excludes any Request for Admission propounded solely for the purpose
`
`of establishing authenticity of documents. Prior to trial, the parties will meet and
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`confer in hopes of reaching agreement on a preferred means for authenticating
`
`documents without the need for propounding Requests for Admission.
`
`(c)
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`100 hours of total party and non-party depositions per side (excluding expert
`
`depositions). If a translator and/or interpreter is required for the deposition, the
`
`total time for that deposition will be counted at 2/3 of the total time of the
`
`deposition. The parties will meet and confer on the allocation of time where
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`minimal translation and/or interpretation is required for a deposition
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`(d)
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`The parties will meet and confer and seek to resolve any issues regarding
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`authentication of third party business records.
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`The discovery limitations provided in this paragraph do not apply to discovery taken by
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`the parties in connection with Defendant’s Rule 12(b) Motion to Dismiss for Lack of
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`Subject Matter Jurisdiction and Lack of Personal Jurisdiction (Dkt. No. 22) and
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`Defendant’s Motion to Transfer under 28 U.S.C. § 1404 to the District of Delaware (Dkt.
`
`No. 24). Any party may later move to modify these limitations for good cause.
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`6.
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`Privileged Information. There is no duty to disclose privileged documents or
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`information. However, the parties are directed to meet and confer concerning privileged
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`documents or information after the Status Conference. By the deadline set in the Docket
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`- 4 -
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`Case 2:20-cv-00337-JRG Document 51 Filed 02/09/21 Page 5 of 8 PageID #: 337
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`Control Order, the parties shall exchange privilege logs identifying the documents or
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`information and the basis for any disputed claim of privilege in a manner that, without
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`revealing information itself privileged or protected, will enable the other parties to assess
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`the applicability of the privilege or protection. Any party may move the Court for an order
`
`compelling the production of any documents or information identified on any other party’s
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`privilege log. If such a motion is made, the party asserting privilege shall respond to the
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`motion within the time period provided by Local Rule CV-7. The party asserting privilege
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`shall then file with the Court within 30 days of the filing of the motion to compel any proof
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`in the form of declarations or affidavits to support their assertions of privilege, along with
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`the documents over which privilege is asserted for in camera inspection.
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`7.
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`Signature. The disclosures required by this Order shall be made in writing and signed by
`
`the party or counsel and shall constitute a certification that, to the best of the signer’s
`
`knowledge, information and belief, such disclosure is complete and correct as of the time
`
`it is made. If feasible, counsel shall meet to exchange disclosures required by this Order;
`
`otherwise, such disclosures shall be served as provided by Federal Rule of Civil Procedure
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`5. The parties shall promptly file a notice with the Court that the disclosures required under
`
`this Order have taken place.
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`8.
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`Duty to Supplement. After disclosure is made pursuant to this Order, each party is under
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`a duty to supplement or correct its disclosures immediately if the party obtains information
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`on the basis of which it knows that the information disclosed was either incomplete or
`
`incorrect when made, or is no longer complete or true.
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`9.
`
`Discovery Disputes.
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`- 5 -
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`Case 2:20-cv-00337-JRG Document 51 Filed 02/09/21 Page 6 of 8 PageID #: 338
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`
`
`
`(a)
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`Except in cases involving claims of privilege, any party entitled to receive
`
`disclosures (“Requesting Party”) may, after the deadline for making disclosures,
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`serve upon a party required to make disclosures (“Responding Party”) a written
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`statement, in letter form or otherwise, of any reason why the Requesting Party
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`believes that the Responding Party’s disclosures are insufficient. The written
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`statement shall list, by category, the items the Requesting Party contends should be
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`produced. The parties shall promptly meet and confer. If the parties are unable to
`
`resolve their dispute, then the Responding Party shall, within 14 days after service
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`of the written statement upon it, serve upon the Requesting Party a written
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`statement, in letter form or otherwise, which identifies (1) the requested items that
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`will be disclosed, if any, and (2) the reasons why any requested items will not be
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`disclosed. The Requesting Party may thereafter file a motion to compel.
`
`(b)
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`An opposed discovery related motion, or any response thereto, shall not exceed 7
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`pages. Attachments to a discovery related motion, or a response thereto, shall not
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`exceed 5 pages. No further briefing is allowed absent a request or order from the
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`Court.
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`(c)
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`Prior to filing any discovery related motion, the parties must fully comply with the
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`substantive and procedural conference requirements of Local Rule CV-7(h) and (i).
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`Within 72 hours of the Court setting any discovery motion for a hearing, each
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`party’s lead attorney (see Local Rule CV-11(a)) and local counsel shall meet and
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`confer in person or by telephone, without the involvement or participation of other
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`attorneys, in an effort to resolve the dispute without Court intervention.
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`- 6 -
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`Case 2:20-cv-00337-JRG Document 51 Filed 02/09/21 Page 7 of 8 PageID #: 339
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`(d)
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`Counsel shall promptly notify the Court of the results of that meeting by filing a
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`joint report of no more than two pages. Unless excused by the Court, each party’s
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`lead attorney shall attend any discovery motion hearing set by the Court (though
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`the lead attorney is not required to argue the motion).
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`(e)
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`Any change to a party’s lead attorney designation must be accomplished by motion
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`and order.
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`(f)
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`Counsel are directed to contact the chambers of the undersigned for any “hot-line”
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`disputes before contacting the Discovery Hotline provided by Local Rule CV-
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`26(e). If the undersigned is not available, the parties shall proceed in accordance
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`with Local Rule CV-26(e).
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`
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`10.
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`No Excuses. A party is not excused from the requirements of this Discovery Order because
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`it has not fully completed its investigation of the case, or because it challenges the
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`sufficiency of another party’s disclosures, or because another party has not made its
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`disclosures. Absent court order to the contrary, a party is not excused from disclosure
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`because there are pending motions to dismiss, to remand or to change venue.
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`11.
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`Filings. Only upon request from chambers shall counsel submit to the court courtesy
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`copies of any filings.
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`12.
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`Proposed Stipulations by the Parties Regarding Discovery.
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`(a)
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`Third Party Discovery. The parties agree that they will serve each other with
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`copies of any subpoena or deposition notice directed to a third-party. A party who
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`receives production in response to a third-party discovery request must serve a copy
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`of that production on all other parties within five business days of receipt.
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`- 7 -
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`Case 2:20-cv-00337-JRG Document 51 Filed 02/09/21 Page 8 of 8 PageID #: 340
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`(b)
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`Cross-Use.
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` The parties agree
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`that any document produced
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`in any
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`currently-pending proceedings between or amongst the parties may be used in this
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`case or in any of the foregoing proceedings where a Protective Order is in place, so
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`long as the parties obtain leave from the tribunal presiding over the proceeding in
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`which the document was produced. Any such use remains subject to the Protective
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`Order in the proceeding where the document is used.
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`13.
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`Standing Orders. The parties and counsel are charged with notice of and are required to
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`fully comply with each of the Standing Orders of this Court. Such are posted on the Court’s
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`website at http://www.txed.uscourts.gov/?q=court-annexed-mediation-plan. The substance
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`of some such orders may be included expressly within this Discovery Order, while others
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`(including the Court’s Standing Order Regarding Protection of Proprietary and/or
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`Confidential Information to Be Presented to the Court During Motion and Trial Practice)
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`are incorporated herein by reference. All such standing orders shall be binding on the
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`parties and counsel, regardless of whether they are expressly included herein or made a
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`part hereof by reference.
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`- 8 -
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`.
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`____________________________________
`RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
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`So ORDERED and SIGNED this 9th day of February, 2021.
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