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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
E.DIGITAL CORPORATION, Civil No. 14-cv-1579-BEN (DHB)
Plaintiff,
v.
SCHEDULING ORDER
DROPCAM, INC.,
Defendant.
Pursuant to Rule 16 of the Federal Rules of Civil Procedure and Patent Local Rule
2.1.b, an Case Management Conference was held on October 17, 2014, following the
Early Neutral Evaluation Conference. After consulting with the attorneys of record for
the parties and being advised of the status of the case, and good cause appearing
IT IS HEREBY ORDERED
:
1. Any motion to join other parties, to amend the pleadings, or to file additional
pleadings shall be filed on or before
November 17, 2014.
2. Initial Disclosures. All parties shall fully comply with the Initial Disclosure
requirements of Rule 26(a)(1) by
October 31, 2014.
3. Disclosure of Asserted Claims and Infringement Contentions. On or before
October 31, 2014
, the party claiming patent infringement shall serve on all parties a
“Disclosure of Asserted Claims and Infringement Contentions” and comply with the
requirements of Patent Local Rule 3.1.
4. Document Production Accompanying Disclosure. With the “Disclosure of
Asserted Claims and Preliminary Infringement Contentions,” the party claiming patent
infringement must produce to each opposing party, or make available for inspection and
copying, the documents in the possession, custody and/or control of that party as outlined
in Patent Local Rule 3.2.
5. Invalidity Contentions. On or before
January 16, 2015, each party
opposing a claim of patent infringement shall serve on all parties its “Invalidity
Contentions” which shall comply with the requirements of Patent Local Rule 3.3.
6. Document Production Accompanying Invalidity Contentions. With the
“Invalidity Contentions,” the party opposing a claim of patent infringement must produce
or make available for inspection and copying documents in the possession, custody
and/or control of that party as outlined in Patent Local Rule 3.4.
7. Exchange of Preliminary Claim Constructions and Extrinsic Evidence. On
or before
January 30, 2015, the parties shall simultaneously exchange a preliminary
proposed construction of each claim term, phrase, or clause which the parties have
identified for claim construction purposes. Each such “Preliminary Claim Construction”
will also, for each element which any party contends is governed by 35 U.S.C. §112(6),
identify the structure(s), act(s), or material(s) corresponding to that element as outlined
in Patent Local Rule 4.1.a. Simultaneously with exchange of the “Preliminary Claim
Constructions,” the parties must also provide a preliminary identification of extrinsic
evidence as outlined in Patent Local Rule 4.1.b.
8. Exchange of Responsive Claim Constructions and Extrinsic Evidence. On
or before
February 13, 2015, the parties shall simultaneously exchange “Responsive
Claim Constructions” identifying whether the responding party agrees with the other
party’s proposed construction, or identifying an alternate construction in the responding
party’s preliminary construction, or setting forth the responding party’s alternate
construction as outlined in Patent Local Rule 4.1.c. Simultaneously with exchange of the
“Responsive Claim Constructions” the parties must also provide a preliminary
identification of extrinsic evidence as outlined in Patent Local Rule 4.1.d.
9. Meet and Confer. Following the exchange of the “Responsive Claim
Constructions” the parties must meet and confer for the purposes of narrowing the issues
and finalizing preparation of a Joint Claim Construction Chart, Worksheet and Hearing
Statement, pursuant to Patent Local Rule 4.1.e.
10. Joint Claim Construction Chart, Worksheet and Hearing Statement. On or
before
March 4, 2015, the parties shall complete and file a Joint Claim Construction
Chart, Joint Claim Construction Worksheet and Joint Hearing Statement, which meet the
requirements as outlined in Patent Local Rule 4.2.
11. Substantial Completion of Document Discovery. On or before
March 4,
2015
, the parties shall have substantially completed document discovery, as noted in
Local Patent Rule 2.1.a.1.
12. Completion of Claim Construction Discovery. On or before
April 1, 2015,
the parties shall complete all discovery, including depositions of any percipient or expert
witnesses, that the parties intend to use in the Claim Construction Hearing pursuant to
Local Patent Rule 4.3.
13. Claim Construction Briefs.
a. Pursuant to Patent Local Rule 4.4.a, on or before
April 15, 2015, the
parties shall simultaneously file and serve opening briefs and any evidence supporting
their claim construction.
b. Pursuant to Patent Local Rule 4.4.b, on or before
April 29, 2015, the
parties shall simultaneously file and serve briefs responsive to the opposing party’s
opening brief and any evidence directly rebutting the supporting evidence contained in
the opposing party’s opening brief.
14.
Claim Construction Hearing. Pursuant to Patent Local Rule 4.5, a Claim
Construction Hearing shall be held before the Honorable Roger T. Benitez, United States
District Court Judge, on
May 27, 2015 at 9:30 a.m.
15. Amended and Final Contentions. Each party’s “Infringement Contentions”
and “Invalidity Contentions” will be deemed to be that party’s final contentions, except
as set forth and in compliance with the requirements of Patent Local Rule 3.6.
16. Advice of Counsel. The parties are advised that any party relying upon
advice of counsel as part of a patent-related claim or defense for any reason must comply
with Patent Local Rule 3.7.
17. Expert Designations. On or before
July 27, 2015, all parties shall exchange
with all other parties a list of all expert witnesses expected to be called at trial. On or
before
August 10, 2015, any party may supplement its designation in response to any
other party’s designation, so long as that party has not previously retained an expert to
testify on that subject. Expert designations shall include the name, address, and telephone
number of each expert, and a reasonable summary of the testimony the expert is expected
to provide. The list shall also include the normal rates the expert charges for deposition
and trial testimony.
The parties must identify any person who may be used at trial to present evidence
pursuant to Rules 702, 703 or 705 of the Federal Rules of Evidence. This requirement
is not limited to retained experts.
Please be advised that failure to comply with this section or any other
discovery order of the Court may result in the sanctions provided for in Fed. R. Civ.
P. 37, including a prohibition on the introduction of experts or other designated
matters in evidence.
18. Expert Reports. All expert disclosures required by Fed. R. Civ. P. 26(a)(2)
shall be served on all parties on or before
September 10, 2015. Any contradictory or
rebuttal information shall be disclosed on or before
October 9, 2015. In addition, Fed.
R. Civ. P. 26(e)(1) imposes a duty on the parties to supplement the expert disclosures
made pursuant to Fed. R. Civ. P. 26(a)(2)(B) by the time that pretrial disclosures are due
under Fed. R. Civ. P. 26(a)(3) (discussed below). This disclosure requirement applies to
all persons retained or specially employed to provide expert testimony, or whose duties
as an employee of the party regularly involve the giving of expert testimony.
Please be advised that failure to comply with this section or any other
discovery order of the Court may result in the sanctions provided for in Fed. R. Civ.
P. 37, including a prohibition on the introduction of experts or other designated
matters in evidence.
19. Discovery Cutoff. All discovery shall be completed by all parties on or
before
November 9, 2015. “Completed” means that all discovery must be initiated a
sufficient period of time in advance of the cutoff date, so that it may be completed by the
cutoff date, taking into account the times for service, notice, and response as set forth in
the Federal Rules of Civil Procedure. The Court’s procedures for resolving discovery
disputes are set forth in Magistrate Judge Bartick’s Civil Chambers Rules, which are
posted on the Court’s website.
20. Dispositive Motions Filing Deadline. All motions, other than motions to
amend or join parties, or motions in limine, shall be filed on or before
December 9, 2015.
Motions will not be heard or calendared unless counsel for the moving party has obtained
a motion hearing date from the law clerk of the judge who will hear the motion.
Be
advised that the period of time between the date you request a motion date and the
hearing date may be up to sixty (60) days. Please plan accordingly.
Failure of
counsel to timely request a motion date may result in the motion not being heard.
Pursuant to Local Rule 7.1.f.1, when filing a Motion for Summary Judgment
and/or Adjudication, the moving party
shall file and serve a separate statement setting
forth plainly and concisely all material facts which it contends are undisputed. Each of
the material facts stated shall be followed by a reference to the supporting evidence.
Further, the opposing party
shall file and serve a separate statement that responds to each
of the material facts contended by the moving party to be undisputed, indicating whether
the opposing party agrees or disagrees that those facts are undisputed. The statement also
shall set forth plainly and concisely any other material facts that the opposing party
contends are disputed. Each material fact contended by the opposing party to be disputed
shall be followed by a reference to the supporting evidence.
Briefs or memoranda in support of or in opposition to any pending motion shall not
exceed twenty-five (25) pages in length without leave of the judge who will hear the
motion. No reply memorandum shall exceed ten (10) pages without such leave of court.
21. Mandatory Settlement Conference. A Mandatory Settlement Conference
shall be conducted on
February 22, 2016 at 10:00 a.m. in the chambers of Magistrate
Judge Bartick. Counsel shall submit settlement statements
directly to Magistrate Judge
Bartick’s chambers no later than
February 15, 2016.1 The parties may either submit
confidential settlement statements or may exchange their settlement statements. Each
party’s settlement statement shall set forth the party’s statement of the case, identify
controlling legal issues, concisely set out issues of liability and damages, and shall set
forth the party’s settlement position, including the last offer or demand made by that
party, and a separate statement of the offer or demand the party is prepared to make at the
Mandatory Settlement Conference.
The settlement conference briefs shall not be filed
with the Clerk of the Court.
All named parties, all counsel, and any other person(s) whose authority is
required to negotiate and enter into settlement shall appear in person at the
conference
. The individual(s) present at the Mandatory Settlement Conference with
settlement authority must have the unfettered discretion and authority on behalf of the
party to: 1) fully explore all settlement options and to agree during the Mandatory
Settlement Conference to any settlement terms acceptable to the party (
G. Heileman
Brewing Co., Inc. v. Joseph Oat Corp.
, 871 F.2d 648, 653 (7th Cir. 1989)), 2) change the
settlement position of a party during the course of the Mandatory Settlement Conference
(
Pitman v. Brinker Int’l, Inc., 216 F.R.D. 481, 485-86 (D. Ariz. 2003)), and 3) negotiate
a settlement without being restricted by any predetermined level of authority (
Nick v.
Morgan’s Foods, Inc.
, 270 F.3d 590, 596 (8th Cir. 2001)).
1
Statements under 20 pages in length, including attachments and exhibits, shall be
e-mailed to chambers at efile_Bartick@casd.uscourts.gov. Statements exceeding 20 pages
in length, including attachments and exhibits, must be delivered directly to chambers.
Governmental entities may appear through litigation counsel only. As to all other
parties, appearance by litigation counsel only is not acceptable. Retained outside
corporate counsel shall not appear on behalf of a corporation as the party who has the
authority to negotiate and enter into a settlement.
The failure of any counsel, party or
authorized person to appear at the Mandatory Settlement Conference as required
shall be cause for the immediate imposition of sanctions.
All conference discussions
will be informal, off the record, privileged, and confidential.
22. Pretrial Disclosures. The parties must comply with the pretrial disclosure
requirements of Fed. R. Civ. P. 26(a)(3) no later than
March 14, 2016. Please be
advised that failure to comply with this section or any other discovery order of the
Court may result in the sanctions provided for in Fed. R. Civ. P. 37, including a
prohibition on the introduction of designated matters in evidence
.
23. Memorandum of Contentions. Each party shall serve on each other party
and file with the Clerk of Court their Memorandum of Contentions of Fact and Law and
take any other action required by Local Rule 16.1.f.2 on or before
March 14, 2016.
24. Pretrial Meet and Confer. Counsel shall confer and take the action required
by Local Rule 16.1.f.4.a on or before
March 21, 2016.
25. Pretrial Order Exchange. Counsel for the Plaintiff must provide opposing
counsel with the proposed pretrial order for review and approval and take any other
action required by Local Rule 16.1.f.6.a on or before
March 28, 2016.
26. Objections to Pretrial Disclosures. Written objections, if any, to any party’s
Fed. R. Civ. P. 26(a)(3) pretrial disclosures shall be filed and served on or before
March
28, 2016
. Please be advised that the failure to file written objections to a party’s
pretrial disclosures may result in the waiver of such objections, with the exception
of those made pursuant to Rules 402 (relevance) and 403 (prejudice, confusion or
waste of time) of the Federal Rules of Evidence.
/ / /
27. Pretrial Order Lodging. The Pretrial Order shall be lodged with the district
judge’s chambers on or before
April 4, 2016 and shall be in the form prescribed in Local
Rule 16.1.f.6.c.
28. Final Pretrial Conference. The final Pretrial Conference is scheduled on the
calendar of the Honorable Roger T. Benitez on
April 11, 2016 at 10:30 a.m. The trial
date will be assigned by Judge Benitez at the pretrial conference.
29. The dates and times set forth herein will not be modified except for good
cause shown.
30. Plaintiff’s counsel shall serve a copy of this order on all parties that enter
this case hereafter.
IT IS SO ORDERED
.
DATED: October 17, 2014
DAVID H. BARTICK
United States Magistrate Judge
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