Free Letter - District Court of Delaware - Delaware

Case 1:07-cv-00731-GMS

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EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ENDO PHARMACEUTICALS INC. and PENWEST PHARMACEUTICALS CO., Plaintiffs, C.A. No. 07-731 (***) v. IMPAX LABORATORIES, INC., Defendant. [PROPOSED] SCHEDULING ORDER This ____ day of ________, 2008, the Court having conducted an initial Rule 16 scheduling and planning conference pursuant to Local Rule 16.2(a) on JANUARY 16, 2008, and the parties having determined after discussion that the matter cannot be resolved at this juncture by settlement, voluntary mediation, or binding arbitration; IT IS ORDERED that: 1. Rule 26(a)(1) Initial Disclosures and E-Discovery Default Standard. The parties shall make their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) no later than February 1, 2008. The parties have reviewed the Court's Default Standard for Discovery of Electronic Documents, which is posted at

http://www.ded.uscourts.gov (see Orders, etc., Policies & Procedures, Ad Hoc Committee for Electronic Discovery) and are continuing to meet and confer regarding the standard for discovery and preservation of electronic documents. 2. Joinder of Other Parties and Amendment of Pleadings. All motions to join

other parties, and to amend or supplement the pleadings shall be filed on or before June 13, 2008.

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3.

Discovery. a. Limitation on Hours for Deposition Discovery. Each side is limited

to a total of [Plaintiffs: 100 hours / Impax 70 hours] of taking testimony by deposition of fact witnesses upon oral examination. This limitation does not apply to taking testimony by deposition upon oral examination of experts. b. Location of Depositions. Any party or representative (officer,

director, or managing agent) of a party filing a civil action in this district court must ordinarily be required, upon request, to submit to a deposition at a place designated within this district. Exceptions to this general rule may be made by order of the Court. A defendant who becomes a counterclaimant, cross-claimant, or third-party plaintiff shall be considered as having filed an action in this Court for the purpose of this provision. c. Discovery Cut Off. All non-expert discovery in this case shall be

initiated so that it will be completed on or before December 21, 2008. 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. d. Disclosure of Expert Testimony. For the party who has the initial

burden of proof on the subject matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on or before January 12, 2009. The supplemental disclosure to contradict or rebut evidence on the same matter identified by another party is due on or before February 12, 2009. Along with the submissions of the expert reports, the parties shall advise of the dates and times of their experts' availability for deposition. All expert discovery shall be completed by March 20, 2009.

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e.

To the extent any objection to expert testimony is made pursuant to

the principles announced in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), as incorporated in Federal Rule of Evidence 702, it shall be made by motion no later than the deadline for dispositive motions set forth herein, unless otherwise ordered by the Court. f. Discovery Matters. Should counsel find they are unable to resolve

a discovery matter, the parties involved in the discovery matter(s) shall contact chambers at (302) 573-4571 to schedule a telephone conference. Not less than forty-eight (48) hours prior to the conference, the party seeking relief shall file with the Court a letter, not to exceed three (3) pages, outlining the issues in dispute and its position on those issues. Not less than twenty-four (24) hours prior to the conference, any party opposing the application for relief may file a letter, not to exceed three (3) pages, outlining that party's reasons for its opposition. Should any document(s) be filed under seal, a copy of the sealed document(s) must be provided to the Magistrate Judge within one (1) hour of efiling the document(s). Should the Court find further briefing necessary upon conclusion of the telephone conference, the Court will order it. Disputes over protective orders or motions for extension of time for briefing case dispositive motions which are related to discovery matters are to be addressed in the first instance in accordance with this paragraph. 4. Application to Court for Protective Order. Should counsel find it will be

necessary to apply to the Court for a protective order specifying terms and conditions for the disclosure of confidential information, counsel should confer and attempt to reach an agreement on a proposed form of order and submit it to the Court within ten days from the date of this

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Order. Should counsel be unable to reach an agreement on a proposed form of order, the counsel must first follow the provisions of Paragraph 3(f) above. Any proposed order should include the following paragraph: Other Proceedings. By entering this order and limiting the disclosure of information in this case, the Court does not intend to preclude another court from finding that information may be relevant and subject to disclosure in another case. Any person or party subject to this order who becomes subject to a motion to disclose another party's information designated "confidential" [the parties should list any other level of designation, such as "highly confidential," which may be provided for in the protective order] pursuant to this order shall promptly notify that party of the motion so that the party may have an opportunity to appear and be heard on whether that information should be disclosed. 5. Papers Filed Under Seal. When filing papers under seal, counsel should

deliver to the Clerk an original and one copy of the papers. 6. ADR Process. This matter is referred to a magistrate judge to explore the

possibility of alternative dispute resolution. 7. Interim Status Report. On November 15, 2008, counsel shall submit a

letter to the Court with an interim report on the nature of the matters in issue and the progress of discovery to date. 8. Status Conference. On November _, 2008, the Court will hold a Rule

16(a), (b) and (c)) conference by telephone with counsel beginning at _ _.m. Plaintiff's counsel shall initiate the telephone call. At the time of this conference, counsel shall also be prepared to discuss the progress, if any, of settlement discussions and shall be prepared to discuss the possibility of setting up a settlement conference with the Court, counsel and their clients. If all parties agree that there is nothing to report, nor anything to add to the interim status report or to this order, they shall notify the Court in writing before the conference is scheduled to occur, and the conference will be taken off of the Court's calendar. 4

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9.

Tutorial Describing the Technology and Matters in Issue. The parties shall

provide the Court by [Plaintiffs: June 1, 2009 / Impax: September 17, 2008], a tutorial on the technology at issue. In that regard, each party may submit a videotape/CD of not more than 30 minutes. The parties may choose to present the tutorial in person. In either event, the tutorial should focus on the technology in issue and should not be used to argue the parties' claims construction contentions. If the parties choose to file videotapes/CDs, they should be filed under seal as part of the Court's file, subject to any protective order in effect. Each party may comment, in writing (in no more than 5 pages) on the opposing party's videotape/CD tutorial. Any such comment shall be filed within ten (10) days of submission of the videotapes/CDs. As to the format selected, the parties should confirm the Court's technical abilities to access the information contained in the tutorial. 10. Case Dispositive Motions. Any party that wishes to file a motion for

summary judgment shall submit a letter brief of no more than 5 pages to the Court no later than [Plaintiffs: July 1, 2009 / Impax: March 27, 2009] explaining why no material facts exist and seeking permission to file the motion. Any response to such a letter brief would be due 5 days after service of the letter brief and is limited to 5 pages. Any reply letter brief would be due 2 days after service of the responsive letter brief and would be limited to 3 pages. Upon reviewing any such letter briefs, the Court will then determine whether the filing of any summary judgment motion will be permitted. All case dispositive motions, an opening brief, and

affidavits, if any, in support of the motion shall be served and filed on or before [Plaintiffs: July 24, 2009 / April 17, 2009]. The responsive brief, and affidavits, if any, in opposition to the motion shall be served and filed [Plaintiffs: on or before August 18, 2009 / Impax: on or before

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May 4, 2009]. The reply brief, if any, shall be served and filed [Plaintiffs: on or before August 28, 2009 / Impax: on or before May 14, 2009]. 11. Claim Construction Issue Identification. If the Court does not find that a

limited earlier claim construction would be helpful in resolving the case, on [Plaintiffs: December 31, 2008 / Impax: September 10, 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 with the Court. Subsequent to exchanging that list, the parties will meet and confer to prepare a Joint Claim Construction Chart to be submitted on [Plaintiffs: April 10, 2009/ Impax: September 24, 2008]. 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 shall be submitted with this Joint Claim Construction Chart. In this joint submission, the parties shall not provide argument. 12. Claim Construction. The parties shall contemporaneously submit initial

briefs on claim construction issues on [Plaintiffs: April 17, 2009 / Impax: October 15, 2008]. The parties' answering/responsive briefs shall be contemporaneously submitted on [Plaintiffs: May 15, 2009 / Impax: November 14, 2008]. No reply briefs or supplemental papers on claim construction shall be submitted without leave of the Court. Local Rule 7.1.3(4) shall control the page limitation for initial (opening) and responsive (answering) briefs.

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13.

Hearing on Claim Construction. Beginning at _ _m. on [Plaintiffs: June

15, 2009 / Impax: January _, 2009], the Court will hear evidence and argument on claim construction. 14. Applications by Motion. Except as otherwise specified herein, any

application to the Court shall be by written motion filed with the Clerk. Unless otherwise requested by the Court, counsel shall not deliver copies of papers or correspondence to Chambers. Any non-dispositive motion should contain the statement required by Local Rule 7.1.1. 15. Pretrial Conference. On [Plaintiff: December _, 2009 / Impax: June _,

2009], the Court will hold a Final Pretrial Conference in Chambers with counsel beginning at _____ _.m. Unless otherwise ordered by the Court, the parties should assume that filing the pretrial order satisfies the pretrial disclosure requirement of Federal Rule of Civil Procedure 26(a)(3). The parties shall file with the Court the joint proposed final pretrial order with the information required by the form of Final Pretrial Order which accompanies this Scheduling Order on or before [Plaintiffs: October 19, 2009 / May 28, 2009]. 16. Motions in Limine. Motions in limine shall not be separately filed. All in

limine requests and responses thereto shall be set forth in the proposed pretrial order. Each party shall be limited to five in limine requests, unless otherwise permitted by the Court. The in limine request and any response shall contain the authorities relied upon; each in limine request may be supported by a maximum of three pages of argument and may be opposed by a maximum of three pages of argument. If more than one party is supporting or opposing an in limine request, such support or opposition shall be combined in a single three (3) page submission, unless

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otherwise ordered by the Court. No separate briefing shall be submitted on in limine requests, unless otherwise permitted by the Court. 17. Trial. This matter is scheduled for a five day bench trial beginning at 9:30

a.m. on [Plaintiff: December _, 2009 / Impax: June _, 2009], with the subsequent trial days beginning at 9:00 a.m. For the purpose of completing pretrial preparations, counsel should plan on each side being allocated a total of 15 hours to present their case.

_________________________________ UNITED STATES MAGISTRATE JUDGE

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EXHIBIT B

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Endo Pharmaceuticals Inc., et al. v. Impax Laboratories, Inc. C.A. No. 07-731 (***) Chart Summarizing Parties' Proposals for Case Schedule Event Service of Rule 26(a) initial disclosures by Motions to join parties/amend pleadings by Interim status report Status conference Fact discovery cutoff Exchange claim terms for construction by Initial expert reports due Rebuttal expert reports due Expert discovery cutoff Joint Claim Construction Chart due by Initial claim construction briefs due by Responsive claim construction briefs due by Tutorial describing the technology at issue Markman Hearing on Request to file dispositive motions due by Dispositive motions filed on or before Opposition to dispositive motions due by Dispositive motion reply briefs due by Joint Final Pretrial submitted by Pretrial Conference Trial date
1381818

Plaintiffs' Proposal

Impax's Proposal

February 1, 2008 June 13, 2008 November 15, 2008 November __, 2008 December 21, 2008 December 31, 2008 September 10, 2008

January 12, 2009 February 12, 2009 March 20, 2009 April 10, 2009 April 17, 2009 May 15, 2009 June 1, 2009 June 15, 2009 July 1, 2009 July 24, 2009 August 18, 2009 August 28, 2009 October 19, 2009 December __, 2009 December __, 2009 September 24, 2008 October 15, 2008 November 14, 2008 September 17, 2008 January __, 2009 March 27, 2009 April 17, 2009 May 4, 2009 May 14, 2009 May 28, 2009 June __, 2009 June __, 2009