Case: 3:20-cv-00098-wmc Document #: 17 Filed: 04/27/20 Page 1 of 9
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WISCONSIN
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`PLASTIPAK PACKAGING, INC.,
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`PRELIMINARY PRETRIAL
` CONFERENCE ORDER
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`20-cv-98-wmc
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`Plaintiff,
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`v.
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`PREMIUM WATERS INC.,
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`Defendant.
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`This court held a preliminary pretrial conference on April 23, 2020. All parties were
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`represented by counsel. The court set the schedule for this case and advised the parties that
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`their conduct throughout this case is governed by this pretrial conference order and the
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`attachments to it. The parties should not expect to receive extensions of the deadlines set in
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`this order. It is each party’s responsibility to complete all necessary work within the time
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`allotted. Federal Rule of Civil Procedure 6(d) shall not apply to documents served pursuant to
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`Rules 5(b)(2)(E) & (F). Please note that this order imposes new requirements on the parties in
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`patent lawsuits.
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`The parties and their attorneys must at all times treat everyone involved in this lawsuit
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`with courtesy and consideration. The parties must attend diligently to their obligations in this
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`lawsuit and must reasonably accommodate each other in all matters so as to secure the just,
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`speedy, and inexpensive resolution of each proceeding in this matter, as required by Rule 1.
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`Failure to do so shall have consequences.
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`1. Establish standing to assert the patent(s): May 8, 2020
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WISCONSIN
`
`
`PLASTIPAK PACKAGING, INC.,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`PRELIMINARY PRETRIAL
` CONFERENCE ORDER
`
`
`
`20-cv-98-wmc
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`v.
`
`
`
`
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`PREMIUM WATERS INC.,
`
`
`
`Defendant.
`
`
`
`
`This court held a preliminary pretrial conference on April 23, 2020. All parties were
`
`represented by counsel. The court set the schedule for this case and advised the parties that
`
`their conduct throughout this case is governed by this pretrial conference order and the
`
`attachments to it. The parties should not expect to receive extensions of the deadlines set in
`
`this order. It is each party’s responsibility to complete all necessary work within the time
`
`allotted. Federal Rule of Civil Procedure 6(d) shall not apply to documents served pursuant to
`
`Rules 5(b)(2)(E) & (F). Please note that this order imposes new requirements on the parties in
`
`patent lawsuits.
`
`The parties and their attorneys must at all times treat everyone involved in this lawsuit
`
`with courtesy and consideration. The parties must attend diligently to their obligations in this
`
`lawsuit and must reasonably accommodate each other in all matters so as to secure the just,
`
`speedy, and inexpensive resolution of each proceeding in this matter, as required by Rule 1.
`
`Failure to do so shall have consequences.
`
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`1. Establish standing to assert the patent(s): May 8, 2020
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`Case: 3:20-cv-00098-wmc Document #: 17 Filed: 04/27/20 Page 2 of 9
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`By this date, plaintiff must submit to the court proof that it has standing to sue on the
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`patents claimed, either by stipulation or by admissible evidence. If standing is disputed, then
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`the parties should notify the court so that a briefing schedule can be set.
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`2. Amendments to the Pleadings: June 26, 2020
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`After this date, a party may not amend its pleadings without first receiving leave of
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`court.
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`3. Preliminary Disclosure of Core Substantive Contentions in Patent Cases
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`The core substantive contentions identified in this paragraph will be treated as elements
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`of pleading. Amendments to core substantive contentions will be freely allowed until the
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`deadline for amendments to the pleadings. After the deadline, amendments will be allowed as
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`provided for under Federal Rule of Civil Procedure 15. The court expects the parties to commit
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`to their core substantive contentions early in the case, and the court will be increasingly
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`reluctant to allow amendments as the deadline for expert disclosures approaches. The
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`disclosures required by this paragraph are not intended to inhibit any party’s ability to seek
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`additional information by means of contention interrogatories.
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`A. Plaintiff’s infringement contentions: June 5, 2020
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`By this date, plaintiff must identify each claim in each patent being asserted against
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`each accused device. Plaintiff’s disclosure must be in claim chart form.
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`B. Defendant’s invalidity or unenforceability contentions: July 10, 2020
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`By this date, defendant must identify each piece of prior art on which it will rely to
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`show the invalidity of each asserted patent, and the basis for any other allegation of invalidity
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`2
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`Case: 3:20-cv-00098-wmc Document #: 17 Filed: 04/27/20 Page 3 of 9
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`or unenforceability. Invalidity contentions based on prior art must be made in claim chart form.
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`The court recognizes that defendant’s prior art search may not be complete by this deadline,
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`but defendant is strongly cautioned to conduct its prior art search with special diligence and to
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`promptly amend its invalidity contentions as promptly as possible. The court will be
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`increasingly reluctant to allow amendments as the deadline for expert disclosures approaches.
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`4. Exchange of Terms and Proposed Constructions: August 31, 2020
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` Responses: September 14, 2020
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`By the first date provided in this paragraph, each party should disclose to the opposing
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`party all of the claim terms that it believes may be disputed, along with a proposed
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`construction. By the second date, the opposing party should respond with either its consent to
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`the proposed construction or its proposed alternatives. These disclosures need not be filed with
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`the court, and the parties may supplement or amend these disclosures by agreement. The
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`parties are, of course, encouraged to reach a stipulation on the meaning of as many claim terms
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`as possible.
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`Twenty-one (21) days before the dispositive motion deadline, the parties must confer
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`and jointly submit a table of terms requiring construction, with each side’s proposed
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`construction. The list must also include those terms upon which the parties have agreed on
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`construction. Any claim term not on the joint list will be given its plain meaning on summary
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`judgment and at trial. The court will provide necessary judicial constructions of claim terms in
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`connection with motions for summary judgment. See paragraph 7 below for further detail.
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`5. Disclosure of Reliance on Advice of Counsel: August 31, 2020
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`3
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`Case: 3:20-cv-00098-wmc Document #: 17 Filed: 04/27/20 Page 4 of 9
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`6. Disclosure of Experts: Proponent: December 4, 2020
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` Respondent: January 25, 2021
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`All disclosures mandated by this paragraph must comply with the requirements of Rule
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`26(a)(2). Supplementation pursuant to Rule 26(e) is limited to matters raised in an expert’s
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`first report, must be in writing, and must be served no later than five calendar days before the
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`expert’s deposition, or before the general discovery cutoff if no one deposes the expert. Any
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`employee of a party who will be offering expert opinions during any phase of this case must
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`comply with all of these disclosure requirements.
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`Failure to comply with these deadlines and procedures could result in the court striking
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`the testimony of a party’s experts, pursuant to Rule 37. The parties may agree among
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`themselves to modify deadlines and procedures relating to experts.
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`7. Deadline for Filing Dispositive Motions and for Seeking Judicial Construction
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`of Claim Terms: February 26, 2021
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`Dispositive motions may be filed and served by any party on any date up to the deadline
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`set above. All dispositive motions must be accompanied by supporting briefs. All responses to
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`dispositive motions must be filed and served within 28 calendar days of service of the motion.
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`Any reply by the movant must be filed and served within 21 calendar days of service of the
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`response. The parties may not modify this schedule without leave of court.
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`If any party files a motion for summary judgment, then all parties must follow this
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`court’s procedure governing such motions, a copy of which is attached to this order. The court
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`will not consider any document that does not comply with its summary judgment procedure.
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`4
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`Case: 3:20-cv-00098-wmc Document #: 17 Filed: 04/27/20 Page 5 of 9
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`A party may not file more than one motion for summary judgment in this case without leave
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`of court.
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`Parties are to undertake discovery in a manner that allows them to make or respond to
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`dispositive motions within the scheduled deadlines. The fact that the general discovery cutoff,
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`set forth below, occurs after the deadlines for filing and briefing dispositive motions is not a
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`ground for requesting an extension of the motion and briefing deadlines.
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`If a party seeks judicial construction of a claim term, it must: (1) do so by the dispositive
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`motion deadline; and (2) show how that construction is material to a disputed issue of
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`infringement or invalidity. If either side believes that a hearing on claim construction issues
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`would be useful, it must file a succinct, written motion by (or before) the deadline for filing a
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`summary judgment reply brief. Ideally, the motion will be jointly made, but even if not jointly
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`made, it must state the opposing party’s position on whether a hearing should be held. Unless
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`the court is persuaded otherwise, it will generally not hold a hearing on the claim construction
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`or summary judgment.
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`No later than one week after the reply brief is filed for a summary judgment motion,
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`the parties must confer and jointly submit to the court a chart that identifies each claim and
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`each allegedly infringing product or method at issue in the summary judgment motion, and the
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`substantive contentions raised in the motion (e.g., “Claim 1 is anticipated,” or “Claim 1 does
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`not lack written description”). This is not an opportunity for additional argument; it is simply
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`an index to the issues raised on summary judgment. If there is more than one summary
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`judgment motion, the parties should submit a single filing that includes a separate chart (or
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`charts) for each motion.
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`8. Discovery Cutoff: July 2, 2021
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`5
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`Case: 3:20-cv-00098-wmc Document #: 17 Filed: 04/27/20 Page 6 of 9
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`All discovery in this case must be completed no later than the date set forth above,
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`absent written agreement of all parties to some other date. Absent written agreement of the
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`parties or a court order to the contrary, all discovery must conform to the requirements of Rules
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`26 through 37 and Rule 45. Rule 26(a)(1) governs initial disclosures unless the parties agree
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`to the contrary.
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`The following discovery materials should not be filed with the court unless they concern
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`a motion or other matter under consideration by the court: interrogatories; responses to
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`interrogatories; requests for documents; responses to requests for documents; requests for
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`admission; and responses to requests for admission.
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`A party need not file a deposition transcript with the court until that party is using the
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`deposition to support some other submission, at which time the entire deposition must be filed.
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`Depositions that are not filed with the court by the deadline for filing pretrial submissions may
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`not be used by any party for any purpose at trial. All deposition transcripts must be in
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`compressed format. The court will not accept duplicate transcripts. The parties must determine
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`who will file each transcript.
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`A party may not file a motion regarding discovery until that party has made a good faith
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`attempt to resolve the dispute. All efforts to resolve the dispute must be set forth in any
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`subsequent discovery motion filed with the court. By this order, the court requires all parties
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`to a discovery dispute to attempt to resolve it quickly and in good faith. Failure to do so could
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`result in cost shifting and sanctions under Rule 37.
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`Because the parties will not receive extensions of other deadlines in this case, they must
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`file discovery motions promptly if self-help fails. Parties who fail to do so may not seek to
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`6
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`Case: 3:20-cv-00098-wmc Document #: 17 Filed: 04/27/20 Page 7 of 9
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`change the schedule on the ground that discovery proceeded too slowly to meet the deadlines
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`set in this order.
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`All discovery-related motions must be accompanied by a supporting brief, affidavit, or
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`other document showing a prima facie entitlement to the relief requested. Any response to a
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`discovery motion must be served and filed within seven calendar days of service of the motion.
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`Replies may not be filed unless requested by the court.
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`9. Settlement Letters: July 16, 2021
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`No later than this date, each party must submit a confidential settlement letter to the
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`clerk of court at clerkofcourt@wiwd.uscourts.gov. The letter should set forth the terms and
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`conditions upon which that party would settle this case. The letter should be marked “Under
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`Seal” and should not be sent to opposing counsel. These letters will not become part of the
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`record in this case. Upon receipt of the letters, the clerk of court will initiate settlement
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`discussions with counsel.
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`This is the only required settlement activity in this lawsuit. But the parties should be
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`aware that the court has settlement resources available. Contact the clerk of court for
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`information about these resources.
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`7
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`Case: 3:20-cv-00098-wmc Document #: 17 Filed: 04/27/20 Page 8 of 9
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`10. Rule 26(a)(3) Disclosures and all Motions in Limine: August 6, 2021
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` Objections: August 20, 2021
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`The first date provided in this paragraph is the deadline to file and serve: all Rule
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`26(a)(3) disclosures; all motions in limine; proposed voir dire questions; proposed jury
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`instructions; and proposed verdict forms. Responses are due by the second date. The format
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`for submitting proposed voir dire questions, jury instructions, and verdict forms is set forth in
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`the Procedures Governing Final Pretrial Submissions, which is attached.
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`Each party must accompany its proposed jury instructions and verdict questions with a
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`memorandum explaining the reasons for its requests and citing its authority for them. A party
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`objecting to its opponent’s proposed jury instructions, verdict form, or verdict questions must
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`submit a memorandum explaining the basis and authority for its opposition. The parties no
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`longer need to submit courtesy copies of these submissions to chambers.
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`11. Final Pretrial Conference: September 7, 2021 at 4:00 p.m.
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`Lead counsel for each party must appear in person. A party that wishes to obtain daily
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`copies of the trial transcripts must make arrangements with the court reporters as soon as
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`possible, but not later than the day of the final pretrial conference or ten calendar days before
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`the first day of trial, whichever is earlier. Failure to do so constitutes waiver.
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`8
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`Case: 3:20-cv-00098-wmc Document #: 17 Filed: 04/27/20 Page 9 of 9
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`12. Trial: September 27, 2021 at 9:00 a.m.
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`Trial shall be to a jury of eight and shall be bifurcated. The parties estimate that this
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`case will take five to seven days to try. Absent further order of this court, the issues to be tried
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`shall be limited to those identified by the parties in their pretrial conference report to the court.
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`This case will be tried in an electronically equipped courtroom and the parties will
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`present their evidence using this equipment. The parties must ensure the compatibility of their
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`personal equipment with the court’s system prior to the final pretrial conference. Failure to do
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`so constitutes waiver.
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`13. Reporting Obligation of Corporate Parties
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`All parties that are required to file a disclosure of corporate affiliations and financial
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`interest form have a continuing obligation throughout this case to promptly amend that form
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`to reflect any changes in the answers.
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`Entered this 27th day of April, 2020.
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`BY THE COURT:
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`/s/
`__________________________________
`STEPHEN L. CROCKER
`Magistrate Judge
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