Free Stipulation - District Court of Delaware - Delaware

Case 1:06-cv-00028-SLR—LPS Document 217 Filed 01/15/2008 Page1 of4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MCKESSON AUTOMATION, INC., )
Plaintiff, l
v. g C.A. No. 06-028-MPT
SWISSLOG ITALIA S.P.A. and l
TRANSLOGIC CORPORATION )
Defendants. l
STIPULATED FIFTH AMENDED SCHEDULING ORDER
The parties hereto hereby stipulate and agree, subject to the Court’s approval, to
amend the following paragraphs of the Scheduling Order entered in this case on May I6, 2006
[D.I. 38] to read as follows:
3. Discovery.
e. Discovery Cut Off. Fact discovery in this case shall be initiated so
that it will be completed on or before January 31, 2008. Unless specifically agreed to otherwise
by the parties, no depositions of additional witnesses, other than experts, Mr. Heilman, Mr.
Demmler, Mr. Balsamo, Mr. Provvisionato, Steven Weisburd, Alfred Fabricant and Ian Blum,
shall be noticed after October 10, 2007 unless otherwise ordered by the Court. The parties
recognize that willfulness discovery may need to continue beyond the January 31 deadline due to
scheduling issues associated with Messrs. Provvisionato’s and Balsamo’s depositions as well as
this Court’s December 3, 2007 Order. Notwithstanding, by making this stipulation, Defendants
are not agreeing to permit any depositions relating to willfulness beyond those expressly
permitted by the Court and/or those properly noticed prior to the Court’s December 3, 2007
Order. Nothing in this Stipulation shall be construed as a concession by Defendants to permit
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the noticing of any additional depositions relating to willfulness. The parties are working to
complete such discovery as expeditiously as possible. Expert discovery shall be initiated so that
it will be completed on or before April 30, 2008 and will include any new factual issues raised
by the expert reports. The Court encourages the parties to serve and respond to contention
interrogatories early in the case. Unless otherwise ordered by the Court, the limitations on
discovery set forth in Local Rule 26.1 shall be strictly observed.
fi Disclosure of Expert Testimony. Unless otherwise agreed to by the
parties, they shall file their initial Federal Rule of Civil Procedure 26(a)(2) disclosures of expert
testimony on or before February 28, 2008, and file a supplemental disclosure to contradict or
rebut evidence on the same subject matter identified by another party on March 24, 2008. The
parties recognize that expert testimony regarding willfulness may be needed and that any such
expert discovery and disclosure of expert testimony may need to occur outside of the time
periods set forth for such discovery because of the timing of willfulness fact discovery referred
to above. To the extent any objection to expert testimony is made pursuant to the principles
announced in Dauberr v. Merrell Dow Pharm., Inc., 509 U.S.579 (1993), it shall be made by
motion no later than the deadline for dispositive motions set forth herein, unless otherwise
ordered by the Court.
10. Case Dispositive Motions. All case dispositive motions, an opening brief,
and affidavits, if any, in support of the motion shall be served and filed on or before June 6,
2008. Briefing will be presented pursuant to the Court’s Local Rules.
ll. Claim Construction Issue Identification. On February 15, 2008, the parties
shall exchange a list of those claim term(s)/phrase(s) that they believe need construction and
their proposed claim construction of those term(s)/phrase(s). This document will not be filed
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with the Court. Subsequent to exchanging that list, the parties will meet and confer to prepare a
Joint Claim Construction Chart to be submitted pursuant to paragraph l2 below. The parties
Joint Claim Construction Chart should identify for the Court the term(s)/phrase(s) of the claim(s)
in issue, and should include each party’s proposed construction of the disputed claim language
with citation(s) only to the intrinsic evidence in support of their respective proposed
constructions. A copy of the patent(s) in issue as well as those portions of the intrinsic record
relied upon are to be submitted with this Joint Claim Construction Chart. In this joint
submission, the parties shall not provide argument.
l2. Claim Construction. The parties shall serve the Joint Claim Construction
Chart no later than March 31, 2008. Plaintiff and Defendants shall simultaneously serve and file
opening briefs regarding issues of claim construction on or before April 25, 2008. Responsive
briefs regarding issues of claim construction shall be served and filed on or before May 16, 2008.
After submission of the responsive claim construction briefs, amendment or modification of any
claim construction position may be made only by order of the Court, which shall be entered only
upon a showing of good cause.
13. Hearing on Claim Construction/Case Dispositive Motions. Beginning at
. on , the Court will hear evidence and argument on claim
construction and case dispositive motions.
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BLANK ROME LLP MORRIS, NICHOLS ARSHT & TUNNELL LLP
/s/ Dale R. Dubé /s/ Julia Heaney
Dale R. Dubé (#2863) Julia Heaney (#3052)
1201 N. Market Street 1201 N. Market Street
Suite 800 P.O. Box 1347
Wilmington, DE 19801 Wilmington, DE 19801
(302) 425—6400 (302) 351-9221
[email protected] jheaney(c_Z)mnat.com
Blair M. Jacobs Lawrence C. Drucker
Robert A. Gutkin Alfred R. Fabricant
Christina A. Ondrick Richard LaCava
SUTHERLAND ASBILL & BRENNAN LLP DICKSTEIN SHAPIRO LLP
1275 Pennsylvania Avenue, NW 1 177 Avenue of the Americas
Washington, DC 20004 New York, NY 10036
Tel: (202) 383—0100 Tel: (212) 277-6500
Counsel for P!ointMMcKesson Automation, Counsel for Defendants Swisslog Ita/ia S. p.A.
Inc. and Transfogic Corporation
SO ORDERED this day of , 2008.
United States Magistrate Judge
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