Case 1:20-cv-00765-DAE Document 76 Filed 11/27/23 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`CASE NO. 1:20-cv-00765-DAE
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`§
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`BANDSPEED, LLC,
`
`Plaintiff,
`
`v.
`
`REALTEK SEMICONDUCTOR
`CORPORATION,
`
`Defendant.
`
`AGREED DISCOVERY ORDER
`
`After a review of the pleaded claims and defenses in this action, in furtherance of the
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`management of the Court’s docket under Federal Rule of Civil Procedure 16, and after receiving
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`the input of the parties to this action, it is ORDERED AS FOLLOWS:
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`1.
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`2.
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`Initial Disclosures. The parties will serve the disclosures required by Federal Rule of
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`Civil Procedure 26(a)(1) no later than November 17, 2023.
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`Disclosure of Expert Testimony.1 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
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`1 All expert reports should be written such that the report is organized with discrete paragraph
`numbers.
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`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`CASE NO. 1:20-cv-00765-DAE
`
`
`
`§
`
`§§
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`
`BANDSPEED, LLC,
`
`Plaintiff,
`
`v.
`
`REALTEK SEMICONDUCTOR
`CORPORATION,
`
`Defendant.
`
`AGREED DISCOVERY ORDER
`
`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.
`
`2.
`
`Initial Disclosures. The parties will serve the disclosures required by Federal Rule of
`
`Civil Procedure 26(a)(1) no later than November 17, 2023.
`
`Disclosure of Expert Testimony.1 A party must disclose to the other parties the identity
`
`of any witness it may use at trial to present evidence under Federal Rule of Evidence 702,
`
`703 or 705, and:
`
`(a)
`
`if the witness is one retained or specially employed to provide expert testimony in
`
`the case or one whose duties as the party’s employee regularly involve giving expert
`
`testimony, provide the disclosures required by Federal Rule of Civil Procedure
`
`26(a)(2)(B); and
`
`1 All expert reports should be written such that the report is organized with discrete paragraph
`numbers.
`
`
`
`Case 1:20-cv-00765-DAE Document 76 Filed 11/27/23 Page 2 of 7
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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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`4.
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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 this Discovery Order and discovery permitted under the Federal Rules of Civil
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`Procedure, except as modified as follows:
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`a.
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`b.
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`c.
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`21 hours for depositions pursuant to Fed. R. Civ. P. 30(b)(6) per Side,
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`60 hours of nonparty depositions (which does not include Fed. R. Civ. P. 30(b)(6)
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`depositions) per Side,2 and
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`4 expert witnesses per Side.
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`“Side” means a party or a group of parties with a common interest. Any deposition time
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`requiring the use of a translator shall be counted in an amount equal to 66% of the actual
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`time incurred (e.g., three hours of deposition time requiring the use of a translator shall
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`count as two hours). Any party may later move to modify these limitations for good cause.
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`5.
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`The Parties agree to the limitations of Federal Rule of Civil Procedure 26 with regard to
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`the discovery of expert materials. To the extent not already covered by Federal Rule of
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`Civil Procedure 26, the Parties further agree to the following limitations regarding the
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`discovery of expert materials.
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`i.
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`No conversations or communications between or including any Party or its
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`counsel and any testifying or non-testifying expert, or between or including
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`any testifying expert and any non-testifying expert, including emails,
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`2 Inventors, party employees, and other third parties (but not including experts) are nonparty
`witnesses for the purposes of this Discovery Order.
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`- 2 -
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`Case 1:20-cv-00765-DAE Document 76 Filed 11/27/23 Page 3 of 7
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`written agreements, or correspondence, and notes or outlines pertaining
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`thereto, whether drafted or occurring in connection with this Action or any
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`prior or pending investigation, litigation, or proceeding (including inter
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`partes review or reexamination proceedings before the USPTO), will be
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`subject to discovery or examination at any deposition, hearing, or trial
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`unless the conversations or communications are relied upon by a testifying
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`expert in formulating his or her final report or any opinion in this Action.
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`ii.
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`All materials generated by any testifying expert in connection with this
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`Action are exempt from discovery, unless relied upon by a testifying expert
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`in formulating his or her final report or any opinion in this Action.
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`Testifying experts shall not be subject to discovery or examination at any
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`deposition, hearing, or trial on any draft of their expert reports, draft
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`declarations, and draft affidavits, nor notes or outlines pertaining thereto,
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`whether drafted in connection with this Action or any prior or pending
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`investigation, litigation, or proceeding (including inter partes review or
`
`reexamination proceedings before the USPTO).
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`iii.
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`Discovery of materials provided to testifying experts, whether provided in
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`connection with this Action or any prior or pending investigation, litigation,
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`or proceeding (including inter partes review or reexamination proceedings
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`before the USPTO), shall be limited to those materials, facts, non-testifying
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`expert opinions, and other matters actually relied upon by a testifying expert
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`in formulating his or her final report or any opinion in this Action.
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`- 3 -
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`Case 1:20-cv-00765-DAE Document 76 Filed 11/27/23 Page 4 of 7
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`iv.
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`Non-testifying experts shall not be subject to discovery, except to the extent
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`a testifying expert is relying on the work or opinions of a non-testifying
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`expert in formulating his or her final report or any opinion in this Action.
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`Where a testifying expert is relying on the work or opinions of a non-
`
`testifying expert, discovery can be taken from the non-testifying expert with
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`the same limitations that apply to testifying experts, but discovery shall be
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`limited to the information provided to the testifying expert that the testifying
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`expert is relying on in formulating his or her final report or any opinion in
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`this Action and the basis for such information.
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`(a) Privilege Logs. Documents or information created, conveyed, and/or dated after the
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`filing date of these Actions that are protected by attorney-client privilege and/or
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`attorney work product, including any applicable common interest privilege, are not
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`required to be included in either party’s privilege log.
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`(b) Third Party Discovery. A party who serves a subpoena in this matter on a third party
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`shall provide a copy to all other parties. A party who receives documents from a third
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`party pursuant to a subpoena shall reproduce those documents to the other party(s) as
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`soon as practicable and at most no later than five (5) business days after receiving the
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`documents. A party to whom documents or things are made available for inspection
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`shall notify the other party(s) that such materials are available for inspection as soon as
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`practicable and at most no later than three (3) business days after the documents are
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`made available for inspection.
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`(c) Email Discovery. General ESI production requests under Federal Rules of Civil
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`Procedure 34 and 45, or compliance with a mandatory disclosure order of this Court,
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`- 4 -
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`Case 1:20-cv-00765-DAE Document 76 Filed 11/27/23 Page 5 of 7
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`shall not include email or other forms of electronic correspondence (collectively “e-
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`mail”). The Parties further agree to forego serving and responding to specific email
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`production requests. However, the parties do not waive their rights to seek email
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`production upon a showing of good cause. To the extent a Party has shown good cause
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`to seek the production of emails, the Parties agree to make a good faith effort to agree
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`upon a procedure for the production of emails.
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`(d) ESI Provisions.
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`i. General Document Image Format. Each electronic document shall be
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`produced in (1) multi-page PDF or (2) single-page Tagged Image File
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`Format (“TIFF”) or (3) Joint Photographic Expert Group (“JPEG”) format,
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`except for documents where production in such format would be impractical
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`(including, for example, large spreadsheets). TIFF and JPEG files shall be
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`single page and shall be named with a unique production number followed
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`by the appropriate file extension. Load files shall be provided to indicate
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`the location and unitization of the TIFF and JPEG files. If a document is
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`more than one page, the unitization of the document and any attachments
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`and/or affixed notes shall be maintained as they existed in the original
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`document. To the extent reasonably possible, produced data will be de-
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`duplicated across custodians using industry standard de-duplication
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`techniques, including without limitation using an MD5 or SHA-1 hash
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`value.
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`ii.
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`Text-Searchable Documents. No party has an obligation to make its
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`production text-searchable; however, if a party’s documents already exist
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`- 5 -
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`Case 1:20-cv-00765-DAE Document 76 Filed 11/27/23 Page 6 of 7
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`in text-searchable format independent of this litigation, or are converted to
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`text-searchable format for use in this litigation, including for use by the
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`producing party’s counsel, then such documents shall be produced in the
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`same text-searchable format at no cost to the receiving party unless it cannot
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`reasonably be done.
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`iii.
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`Footer. Each document image shall contain a footer with a sequentially
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`ascending production number.
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`iv.
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`Native Files. A party that receives a document produced in a format
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`specified above may make a reasonable request to receive the document in
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`its native format, and upon receipt of such a request, the producing party
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`shall produce the document in its native format unless it cannot reasonably
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`be done. If the producing party objects to the request as unreasonable, the
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`parties shall meet and confer.
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`v.
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`No Backup Restoration Required. Absent a showing of good cause, no
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`party need restore any form of media upon which backup data is maintained
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`in a party’s normal or allowed processes, including but not limited to backup
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`tapes, disks, SAN, and other forms of media, to comply with its discovery
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`obligations in the present case. Absent a showing of good cause, no party
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`shall be required to produce ESI from sources that are not reasonably
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`accessible in light of the burdens and costs required to locate, restore,
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`review, and produce whatever responsive information may be found.
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`vi.
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`Voicemail and Mobile Devices. Absent a showing of good cause,
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`voicemails, PDAs, text messages, instant messages and chats (including but
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`- 6 -
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`Case 1:20-cv-00765-DAE Document 76 Filed 11/27/23 Page 7 of 7
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`not limited to internal corporate chat and communication platforms), and
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`mobile phones are deemed not reasonably accessible and need not be
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`collected and preserved.
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`vii. Metadata. Absent a showing of good cause, general ESI production
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`requests under Federal Rules of Civil Procedure 34 and 45, or compliance
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`with a mandatory disclosure requirement of this Court, shall not include
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`metadata. However, fields showing the date and time that the document
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`was sent and received, the author of the document, as well as the complete
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`distribution list, shall generally be included in the production if such fields
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`exist.
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`SIGNED this 27th day of November, 2023.
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`THE HONORABLE DAVID A. EZRA
`UNITED STATES DISTRICT JUDGE
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`- 7 -
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