Free Proposed Order - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

IN RE: BRIMONIDINE PATENT LITIGATION C.A. No. 1:07-md-1866-GMS

SCHEDULING ORDER This __________ day of ______________ 2008, the Court having conducted a Rule 16 Scheduling Conference pursuant to Local Rule 16.2(b) on February 8, 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) Initial Disclosures. Unless otherwise agreed, the parties shall make their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a) on or before February 22, 2008. 2. Joinder of other Parties and Amendment of Pleadings. All motions to join other parties and amend the pleadings shall be filed on or before February 29, 2008. 3. Markman Claim Construction Hearing. A Markman claim construction hearing shall be held on July 16, 2008 at 9:30 A.M. On or before April 11, 2008, Plaintiff shall serve on Defendants its claim chart. On or before April 25, 2008, Defendants shall serve on Plaintiff their claim charts. The claim charts shall include citations to intrinsic evidence supporting the parties' proposed claim construction. The parties shall meet and confer regarding narrowing and

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reducing the number of claim construction issues on or before May 9, 2008. On or before May 16, 2008, the parties shall submit a Final Joint Claim Chart which shall include citations to intrinsic evidence. The plaintiff shall submit to the court, a Joint Appendix of Intrinsic and Extrinsic Evidence (the "Joint Appendix") containing all intrinsic and extrinsic evidence relied upon in the claim construction briefing. A sample table of contents of the Joint Appendix can be located on this court's website at www.ded.uscourts.gov. The Joint Appendix shall be filed on the same day as the answering claim construction briefs. The parties shall file opening claim construction briefs on June 2, 2008, and answering claim construction briefs on June 16, 2008. 4. Discovery a. Discovery Schedule and Limitations: Fact discovery in this case shall be initiated so that it will be completed on or before August 29, 2008 and Expert discovery shall be completed on or before November 21, 2008. Opening expert reports shall be exchanged on September 5, 2008. Responsive expert reports shall be exchanged on September 26, 2008. Rebuttal expert reports shall be exchanged on October 17, 2008. The Defendants will share 5 interrogatories to be jointly propounded on Allergan. The California Defendants and Delaware Defendants may separately propound 20 interrogatories per group. There shall be no limit to the number of requests for admission. Allergan is entitled to 75 hours of deposition time for use with the California Defendants and an additional 75 hours of deposition time for use with the Delaware Defendants. The Defendants shall share 130 hours of deposition time for use with Allergan. Nothing in this Order shall preclude a party from seeking leave of Court for additional discovery beyond these limits. b. Discovery and Scheduling Matters: Should counsel find they are unable to resolve a discovery or scheduling matter, the party seeking the relief shall contact chambers at (302)

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573-6470 to schedule a telephone conference. Not less than forty-eight hours prior to the teleconference, the parties shall file with the court, via electronic means (CM/ECF), a joint, nonargumentative letter agenda not to exceed two (2) pages outlining the issue(s) in dispute. A sample letter can be located on this court's website at www.ded.uscourts.gov. After the parties have had three (3) discovery teleconferences, they will be required to file a joint letter showing good cause why the court should permit a fourth discovery teleconference. Should the court find further briefing necessary upon conclusion of the telephone conference, unless otherwise directed, the party seeking relief shall file with the court a TWO PAGE LETTER, exclusive of exhibits, describing the issues in contention. The responding party shall file within five (5) days from the date of service of the opening letter an answering letter of no more than TWO PAGES. The party seeking relief may then file a reply letter of no more than TWO PAGES within three (3) days from the date of service of the answering letter. c. Status Conference: A telephonic status conference shall be held at 4:00 p.m. on

March 26, 2008 to discuss the status of the case against the California Defendants. In advance of the status conference, Plaintiff shall inform the California Defendants what patent claims Plaintiff will assert in this action, and the California Defendants will inform Plaintiffs whether they consent to have the case tried in this court. At the status conference, the parties will discuss with the Court pretrial and trial dates, in the event that the California Action will proceed to trial in this court. 5. Confidential Information and Papers filed under Seal. 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, they should confer and attempt to reach an agreement on a proposed form of order and submit it to the court within ten (10) days from the date of this

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order. When filing papers under seal, counsel should deliver to the Clerk an original and two copies of the papers. If after making a diligent effort the parties are unable to agree on the contents of the joint proposed protective order, then they shall follow the dispute resolution process outlined in paragraph 4(b). 6. Summary Judgment Motions. Prior to filing any summary judgment motion, the parties must submit letter briefs seeking permission to file the motion. The opening letter brief shall be no longer than five (5) pages and shall be filed with the Court no later than October 31, 2008. Answering letter briefs shall be no longer than five (5) pages and filed with the court no later than November 14, 2008. Reply letter briefs shall be no longer than three (3) pages and filed with the Court on or before November 21, 2008. The Court shall hold a Status Conference to hear argument and to determine whether the filing of any motion for summary judgment will be permitted on ____________ Unless the Court directs otherwise, no letter requests to file a motion for summary judgment may be filed at a time before the dates set forth in paragraph 6. 7. Case Dispositive Motions. All case dispositive motions and an opening brief and

affidavits, if any, in support of the motion shall be served and filed on or before _________. Briefing will be presented pursuant to the court's Local Rules, unless the parties agree to an alternative briefing schedule. Any such agreement shall be in writing and filed with the Court for the Court's approval. Any request for extensions of time as set forth in this Scheduling Order must be accompanied by an explanation or your request will be denied. 8. Applications by Motion. Except as provided in this Scheduling Order or for

matters relating to scheduling, any application to the Court shall be by written motion filed, via

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electronic means (CM/ECF). 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. 9. Oral Argument. If the Court believes that oral argument is necessary, the Court

will schedule a hearing Pursuant to District of Delaware Local Rule 7.1.4. 10. Daubert Issues. The Court will address Daubert issues at the Pretrial Conference. Daubert issues are properly raised as a Motion in Limine (to be submitted in accordance with the Motion in Limine schedule) and will count toward the five (5) motions permitted per side. 11. Pretrial Conference. On February 18, 2009, beginning at 9:30 A.M., the Court will hold a Pretrial Conference in Chambers with counsel. Unless otherwise ordered by the Court, the parties should assume that filing the Joint Pretrial Order satisfies the pretrial disclosure requirement in Federal Rule of Civil Procedure 26(a)(3). A sample form of Pretrial Order can be located on this court' s website at www.ded.uscourts.gov. Thirty (30) days before the Joint Proposed Pretrial Order is due, plaintiff' s counsel shall forward to defendant' s counsel a draft of the pretrial order containing the information plaintiff proposes to include in the draft. Defendant' s counsel shall, in turn, provide to plaintiff' s counsel any comments on the plaintiff' s draft as well as the information defendant proposes to include in the proposed pretrial order. Motions in limine: No party shall file more than five(5) motions in limine. Briefs (opening, answering and reply) on all motions in limine shall be filed by January 27, 2009. Opening and answering briefs shall not exceed five (5) pages and reply briefs shall not exceed three (3) pages. 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 can be located on this court' s website at www.ded.uscourts.gov on or before January 27, 2009.

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12. Trial. This matter is scheduled for a six day bench trial beginning at 9:00 a.m. on March 9, 2009. 13. Scheduling: The parties shall contact chambers, at (302) 573-6470, only in situations where scheduling relief is sought, and only then when ALL participating counsel is on the line for purposes of selecting a new date.

________________________________ UNITED STATES DISTRICT JUDGE Gregory M. Sleet

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Suite 1100 919 N. Market Street P.o. Box 1114 Wilmington, Delaware 19899-1114

FISH & RICHARDSON P.C.

Frederick P. Fish 1855-1930 W.K. Richardson 1859-1951

Telephone 302 652-5070 Facsimile 302 652-0607
Web Site www.fr.com

BY ECF February 19, 2008

m
ATLANTA AUSTIN BOSTON DALLAS DELAWARE MUNICH NEW YORK SAN DIEGO SILICON VALLEY TWIN CITIES WASHINGTON, DC

The Honorable Gregory M. Sleet Chief Judge United States District Court for the District of Delaware 844 King Street Wilmington, DE 19899 Re: In re Brimonidine Patent Litigation USDC-D.Del. C.A. No. 1:07-md-1866-GMS

Dear Chief Judge Sleet: I have enclosed the parties' Proposed Scheduling Order pursuant to the February 8, 2008 Scheduling Conference. The parties have met and conferred and agreed on the form of the Scheduling Order. Respectfully submitted,

cc:

David E. Moore, Esq. Richard L. Horwitz, Esq. Frederick L. Cottrell, III, Esq. Kelly E. Farnan, Esq.

80055892.doc