e.Digital

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
E.DIGITAL CORPORATION,
Plaintiff,
Case Nos.:
13-cv-2907-H-BGS (lead case)
13-cv-2944-H-BGS
ORDER FOLLOWING
APRIL 22, 2015 HEARING
AND AMENDED
SCHEDULING ORDER
vs.
MICRON CONSUMER PRODUCTS
GROUP, INC., d/b/a LEXAR,
Defendant.
E.DIGITAL CORPORATION,
Plaintiff,
vs.
MICRON TECHNOLOGY, INC.,
Defendant.
On April 3, 2015, Defendants Micron Consumer Products Group, Inc. and
Micron Technology, Inc. (collectively, “Micron”) filed a motion for leave to amend
their answer and counterclaim. (Doc. No. 64.) 1 On April 20, 2015, Plaintiff e.Digital
Corporation (“e.Digital”) filed a response in opposition. (Doc. No. 69.) Additionally,
1 At oral argument, Micron withdrew the motion to amend the counterclaim.

e.Digital raised discovery issues regarding Micron’s responses to certain discovery
requests. On April 22, 2015, the Court held a hearing on Micron’s motion to amend
and on the parties’ discovery disputes. Anton Handal and Pamela Chalk appeared for
e.Digital. Randall Kay and Matthew Ferry appeared for Micron.
Under Federal Rule of Civil Procedure 16(b)(4), “a schedule may be modified
only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). When
determining whether good cause exists to modify a scheduling order, the court
examines the moving party’s diligence. In re W. States Wholesale Natural Gas
Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013). Under the Court’s August 5, 2014
scheduling order, the deadline to amend pleadings was October 6, 2014 and e.Digital’s
infringement contentions were due by August 19, 2014 and the last day to amend
infringement contentions was December 1, 2014. (Case No. 13-cv-2889, Doc. No. 26
at 2, 5, 9.) Both sides argue that they have shown good cause and diligence in their
request to amend the scheduling order, but oppose the other side’s request, contending
that the other side has not shown good cause and diligence for the other side’s
modification of the schedule.
Additionally, the parties submitted a joint proposed modification of the Court’s
scheduling order as to certain pretrial matters. Both sides agree, and the Court agrees,
to extend the time for expert reports, expert discovery, and pretrial scheduling. In
general, the Court holds to its scheduling order, finding a lack of good cause and
diligence, except to modify the following dates and deadlines:
1. The Court orders the parties to act in accordance with the Court’s
directions and orders at the April 22, 2015 hearing.2
2. The Court, exercising its discretion, declines to allow e.Digital to amend
its infringement contentions to add Micron’s eMMC product and will not, absent
further order, compel Micron to produce discovery materials regarding its eMMC
2 The Court takes under submission Defendants’ motion to amend the answer.
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product. The Court orders Micron to review its responses to e.Digital’s discovery
requests in light of the Court’s comments at the hearing and supplement or amend its
responses accordingly. Additionally, the Court orders the parties to continue with Rule
30(b)(6) depositions and source code discovery. If, after conducting Rule 30(b)(6)
depositions, e.Digital has an additional discovery request concerning those limited
issues, e.Digital must promptly make a motion to the Court and show good cause and
diligence.
3. Each expert witness designated by a party must prepare a written report
to be provided to all other parties no later than June 18, 2015 containing the
information required by Fed. R. Civ. P. 26(a)(2)(A) and (B). Except as provided in
paragraph 16 below, any party that fails to make these disclosures must not, absent
substantial justification, be permitted to use evidence or testimony not disclosed at any
hearing or at the time of trial. In addition, the Court may impose sanctions as permitted
by Fed. R. Civ. P. 37.
4. Any party, through any expert designated, must in accordance with Fed.
R. Civ. P. 26(a)(2)(D) and Fed. R. Civ. P. 26(e)(2), supplement any of its expert reports
regarding evidence intended solely to contradict or rebut evidence on the same subject
matter identified in an expert report submitted by another party. Any such
supplemental reports are due on or before July 20, 2015.
5. All fact discovery must be completed on or before May 11, 2015. All
expert discovery must be completed on or before August 5, 2015. “Completed” means
that all discovery under Rules 30-36 of the Federal Rules of Civil Procedure must be
initiated a sufficient period of time in advance of the cut-off date, so that it may be
completed by the cut-off date, taking into account the times for services, notice, and
response as set forth in the Federal Rules of Civil Procedure.
6. All motions, except motions addressing Daubert issues and motions in
limine, must be filed to be heard on or before August 19, 2015. The Court reserves
August 19, 2015 at 12:00 p.m. to hear the motions. Motions addressing Daubert
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issues must be filed on or before August 19, 2015 and will be heard on September 29,
2015. The parties’ briefs must be in compliance with the Local Rules.
7. Counsel must file their Memoranda of Contentions of Fact and Law in
compliance with Civ. L.R. 16.1(f)(2) on or before September 8, 2015.
8. Counsel must comply with the pre-trial disclosure requirements of Federal
Rule of Civil Procedure 26(a)(3) on or before September 8, 2015. Failure to comply
with these disclosure requirements could result in evidence preclusion or other
sanctions under Federal Rule of Civil Procedure 37.
9. Counsel must meet together and take the action required by Civ. L.R.
16.1(f)(4) on or before September 16, 2015. At this meeting, counsel must discuss and
attempt to enter into stipulations and agreements resulting in simplification of the
triable issues. Counsel must exchange copies and/or display all exhibits, including
those intended to be demonstrative exhibits. The exhibits must be prepared in
accordance with Civ. L.R. 16.1(f)(4)(c). Counsel will note any objections they have
to any other parties’ Pretrial Disclosures under FRCP 26(a)(3). Counsel will cooperate
in the preparation of the proposed pretrial conference order.
10. Counsel for Plaintiff will be responsible for preparing the proposed
pretrial order in accordance with Civ. L.R. 16.1(f)(6)(a). On or before September 23,
2015 Plaintiff’s counsel must provide opposing counsel with the proposed pretrial
order for review and approval. Opposing counsel must communicate promptly with
Plaintiff’s attorney concerning any objections to form or content of the pretrial order,
and both parties must attempt promptly to resolve their differences, if any, concerning
the order.
11. The Proposed Final Pretrial Conference Order, including objections to any
other parties’ Federal Rule of Civil Procedure 26(a)(3) Pretrial Disclosures must be
served and emailed to the District Judge’s e-file inbox on or before September 18,
2015 in accordance with Civ. L.R. 16.1(f)(6).
12. The final pretrial conference and motion in limine hearing will be held
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before the Honorable Marilyn L. Huff, United States District Court Judge, on
September 29, 2015 at 10:30 a.m. All motions in limine must be filed on or before
September 9, 2015. All briefs in opposition to motions in limine must be filed on or
before September 18, 2015. Replies must be filed on or before September 25, 2015.
The Court limits Plaintiff to filing five (5) motions in limine in this consolidated action
absent further order of the Court. The Court limits Defendants to filing five (5)
collective motions in limine absent further order of the Court.
13. The parties must submit a joint proposed jury screening questionnaire on
or before September 1, 2015 for the Court’s approval. The proposed jury
questionnaire must be filed with the Court’s Case Management/Electronic Case Filing
(CM/ECF) system. In addition, the Court directs the parties to send a WordPerfect
version of the proposed jury questionnaire via email to the Chambers efile address.
14. The Court orders the parties to file proposed jury instructions by 9:00 a.m.
on October 19, 2015. The Court orders the parties to provide a clean copy of the
requested jury instructions with “Court’s Instruction No. _____” behind each annotated
instruction. The clean copy of the proposed jury instructions must have no page
numbers, no headers or footers, and be in 14-point, Times New Roman font. Copies
of the jury instructions must be filed with the Court’s Case Management/Electronic
Case Filing (CM/ECF) system. In addition, the Court directs the parties to send
WordPerfect versions of the jury instructions via email to the Chambers efile address.
15. The Court schedules a status hearing for October 19, 2015 at 10:30 a.m.
The Court orders the parties to pre-mark all exhibits and to provide exhibit lists to the
Courtroom Deputy at the status conference. Plaintiff and each Defendant must submit
a separate exhibit list. If a party wishes to use electronic or demonstrative equipment
during trial, the Court directs the party to contact the Courtroom Deputy to schedule
an appropriate time to setup the equipment before the trial begins and file any
necessary motions for orders to facilitate equipment setup.

16. Trial will commence before this Court on October 20, 2015 at 9:00 a.m.
IT IS SO ORDERED.
DATED: April 23, 2015
________________________________
MARILYN L. HUFF, District Judge
UNITED STATES DISTRICT COURT
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