Case 2:22-cv-00169-JRG Document 163 Filed 10/19/23 Page 1 of 5 PageID #: 3124
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Civil Action No. 2:22-CV-00169-JRG
`(Lead Case)
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`Civil Action No. 2:22-CV-00175-JRG
`(Member Case)
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`Civil Action No. 2:22-CV-00273-JRG
`(Member Case)
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`LEXOS MEDIA IP, LLC,
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`v.
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`AMAZON.COM, INC.
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`LEXOS MEDIA IP, LLC,
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`v.
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`TARGET CORPORATION
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`LEXOS MEDIA IP, LLC,
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`v.
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`OFFICE DEPOT, LLC
`FIFTH AMENDED DOCKET CONTROL ORDER
`Having Considered Lexos Media IP, LLC’s Unopposed Motion to Amend the Docket
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`Control Order (Dkt. No. 160), the Court finds that good cause has been shown and that it should
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`be and hereby is GRANTED. It is hereby ORDERED that the following schedule of deadlines
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`is in effect until further order of this Court:
`ORIGINAL
`AMENDED DATE
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`EVENT
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`January 22, 2024
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`7 days before Jury
`Selection
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`10 days before Jury
`Selection
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`*Jury Selection – 9:00 a.m. in Marshall, Texas
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`*Defendants to disclose final invalidity theories,
`final prior art references/combinations, and final
`equitable defenses.
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`*Plaintiff to disclose final election of Asserted
`Claims.1
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`1 Given the Court’s past experiences with litigants dropping claims and defenses during or
`on the eve of trial, the Court is of the opinion that these additional deadlines are necessary.
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`Case 2:22-cv-00169-JRG Document 163 Filed 10/19/23 Page 2 of 5 PageID #: 3125
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`December 26, 2023
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`December 18, 2023
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`December 11, 2023
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`December 11, 2023
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`December 4, 2023
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`December 1 , 2023
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`* If a juror questionnaire is to be used, an editable
`(in Microsoft Word format) questionnaire shall be
`jointly submitted to the Deputy Clerk in Charge
`by this date.2
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`*Pretrial Conference – 1:30 p.m. in Marshall,
`Texas before Judge Rodney Gilstrap.
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`*Notify Court of Agreements Reached During
`Meet and Confer
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`The parties are ordered to meet and confer on any
`outstanding objections or motions in limine. The
`parties shall advise the Court of any agreements
`reached no later than 1:00 p.m. three (3) business
`days before the pretrial conference.
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`*File Joint Pretrial Order, Joint Proposed Jury
`Instructions, Joint Proposed Verdict Form,
`Responses to Motions in Limine, Updated Exhibit
`Lists, Updated Witness Lists, and Updated
`Deposition Designations
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`*File Notice of Request for Daily Transcript or
`Real Time Reporting.
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`If a daily transcript or real time reporting of court
`proceedings is requested for trial, the party or
`parties making said request shall file a notice with
`the Court and e-mail the Court Reporter, Shawn
`McRoberts,
`at
`shawn_mcroberts@txed.uscourts.gov.
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`File Motions in Limine
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`The parties shall limit their motions in limine to
`issues that if improperly introduced at trial would
`be so prejudicial that the Court could not alleviate
`the prejudice by giving appropriate instructions to
`the jury.
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` 2
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` The Parties are referred to the Court’s Standing Order Regarding Use of Juror Questionnaires in
`Advance of Voir Dire.
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`Case 2:22-cv-00169-JRG Document 163 Filed 10/19/23 Page 3 of 5 PageID #: 3126
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`December 1 , 2023
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`Serve Objections to Rebuttal Pretrial Disclosures
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`November 20, 2023 November 22, 2023 Serve Objections to Pretrial Disclosures; and
`Serve Rebuttal Pretrial Disclosures
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`November 13, 2023 November 16, 2023 *Response to Dispositive Motions (including
`Daubert Motions). Responses
`to dispositive
`motions that were filed prior to the dispositive
`motion deadline, including Daubert Motions,
`shall be due in accordance with Local Rule CV-
`7(e), not to exceed the deadline as set forth in this
`Docket Control Order.3 Motions for Summary
`Judgment shall comply with Local Rule CV-56.
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`November 6, 2023 November 9, 2023
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`October 30, 2023
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`November 3, 2023
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`October 30, 2023
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`November 3, 2023
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`(Witness List,
`Serve Pretrial Disclosures
`Deposition Designations, and Exhibit List) by the
`Party with the Burden of Proof
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`*File Dispositive Motions
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`No dispositive motion may be filed after this date
`without leave of the Court.
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`Motions shall comply with Local Rule CV-56 and
`Local Rule CV-7. Motions to extend page limits
`will only be granted in exceptional circumstances.
`Exceptional circumstances require more than
`agreement among the parties.
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`to Strike Expert Testimony
`Daubert
`Motions)
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`*File Motions
`(including
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`No motion to strike expert testimony (including a
`Daubert motion) may be filed after this date
`without leave of the Court.
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`October 27, 2023
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`November 1, 2023 Deadline to Complete Expert Discovery
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`Serve Disclosures for Rebuttal Expert Witnesses
`October 25, 2023
`October 20, 2023
`(*) indicates a deadline that cannot be changed without showing good cause. Good cause is
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`3 The parties are directed to Local Rule CV-7(d), which provides in part that “[a] party’s failure to
`oppose a motion in the manner prescribed herein creates a presumption that the party does not
`controvert the facts set out by movant and has no evidence to offer in opposition to the motion.”
`If the deadline under Local Rule CV 7(e) exceeds the deadline for Response to Dispositive
`Motions, the deadline for Response to Dispositive Motions controls.
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`Case 2:22-cv-00169-JRG Document 163 Filed 10/19/23 Page 4 of 5 PageID #: 3127
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`not shown merely by indicating that the parties agree that the deadline should be changed.
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`ADDITIONAL REQUIREMENTS
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`Mediation: While certain cases may benefit from mediation, such may not be appropriate
`for every case. The Court finds that the Parties are best suited to evaluate whether mediation will
`benefit the case after the issuance of the Court’s claim construction order. Accordingly, the Court
`ORDERS the Parties to file a Joint Notice indicating whether the case should be referred for
`mediation within fourteen days of the issuance of the Court’s claim construction order. As a
`part of such Joint Notice, the Parties should indicate whether they have a mutually agreeable
`mediator for the Court to consider. If the Parties disagree about whether mediation is appropriate,
`the Parties should set forth a brief statement of their competing positions in the Joint Notice.
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`Summary Judgment Motions, Motions to Strike Expert Testimony, and Daubert
`Motions: For each motion, the moving party shall provide the Court with two (2) hard copies of
`the completed briefing (opening motion, response, reply, and if applicable, sur-reply), excluding
`exhibits, in D-three-ring binders, appropriately tabbed. All documents shall be single-sided and
`must include the CM/ECF header. These copies shall be delivered to the Court within three (3)
`business days after briefing has completed. For expert-related motions, complete digital copies of
`the relevant expert report(s) and accompanying exhibits shall be submitted on a single flash drive
`to the Court. Complete digital copies of the expert report(s) shall be delivered to the Court no later
`than the dispositive motion deadline.
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`Indefiniteness: In lieu of early motions for summary judgment, the parties are directed to
`include any arguments related to the issue of indefiniteness in their Markman briefing, subject to
`the local rules’ normal page limits.
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`Lead Counsel: The Parties are directed to Local Rule CV-11(a)(1), which provides that
`“[o]n the first appearance through counsel, each party shall designate a lead attorney on the
`pleadings or otherwise.” Additionally, once designated, a party’s lead attorney may only be
`changed by the filing of a Motion to Change Lead Counsel and thereafter obtaining from the Court
`an Order granting leave to designate different lead counsel.
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`Motions for Continuance: The following excuses will not warrant a continuance nor
`justify a failure to comply with the discovery deadline:
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`The fact that there are motions for summary judgment or motions to dismiss pending;
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`The fact that one or more of the attorneys is set for trial in another court on the same day,
`unless the other setting was made prior to the date of this order or was made as a special
`provision for the parties in the other case;
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`(a)
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`(b)
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`(c)
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`The failure to complete discovery prior to trial, unless the parties can demonstrate that it
`was impossible to complete discovery despite their good faith effort to do so.
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`Case 2:22-cv-00169-JRG Document 163 Filed 10/19/23 Page 5 of 5 PageID #: 3128
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`Amendments to the Docket Control Order (“DCO”): Any motion to alter any date on
`the DCO shall take the form of a motion to amend the DCO. The motion to amend the DCO shall
`include a proposed order that lists all of the remaining dates in one column (as above) and the
`proposed changes to each date in an additional adjacent column (if there is no change for a date
`the proposed date column should remain blank or indicate that it is unchanged). In other words,
`the DCO in the proposed order should be complete such that one can clearly see all the remaining
`deadlines and the changes, if any, to those deadlines, rather than needing to also refer to an earlier
`version of the DCO.
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`Proposed DCO: The Parties’ Proposed DCO should also follow the format described
`above under “Amendments to the Docket Control Order (‘DCO’).”
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`Joint Pretrial Order: In the contentions of the Parties included in the Joint Pretrial Order,
`the Plaintiff shall specify all allegedly infringed claims that will be asserted at trial. The Plaintiff
`shall also specify the nature of each theory of infringement, including under which subsections of
`35 U.S.C. § 271 it alleges infringement, and whether the Plaintiff alleges divided infringement or
`infringement under the doctrine of equivalents. Each Defendant shall indicate the nature of each
`theory of invalidity, including invalidity for anticipation, obviousness, subject-matter eligibility,
`written description, enablement, or any other basis for invalidity. The Defendant shall also specify
`each prior art reference or combination of references upon which the Defendant shall rely at trial,
`with respect to each theory of invalidity. The contentions of the Parties may not be amended,
`supplemented, or dropped without leave of the Court based upon a showing of good cause.
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`Trial: All parties must appear in person at trial. All non-individual (including but not
`limited to corporate) parties must appear at trial through the presence in person of a designated
`representative. Once they have appeared, any representative of a non-individual party shall not be
`replaced or substituted without express leave of Court.
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`.
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`____________________________________
`RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
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`So ORDERED and SIGNED this 18th day of October, 2023.
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