1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 1 Unless otherwise indicated, all references to Rules are

to the Federal Rules of Civil Procedure.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

THE RAINLINE CORPORATION )

)

Plaintiff, )

)

v. ) No. 2:04-cv-2700-GEB-DAD

) 

CENTRAL STRIPING SERVICE, ) ORDER

INC., JAMES LESNIEWSKI, and )

SUSAN LESNIEWSKI, )

)

Defendants. )

)

Defendants object to the July 1, 2005, Status (Pretrial

Scheduling) Order (“Scheduling Order”), which currently requires

expert disclosures under Rule 26 of the Federal Rules of Civil

Procedure no later than October 14, 2005.1 Defendants argue, inter

alia, that “[they] will essentially be stripped of their due process

right to properly investigate and present a defense regarding the

invalidity of the patents in suit” unless the Scheduling Order is

amended to allow expert disclosures of matters unrelated to the

Markman hearing sometime after October 14, 2005. (Defs.’ Am.

Objection at 1.) Defendants propose for the first time that the

Case 2:04-cv-02700-GEB-DAD Document 43 Filed 07/25/05 Page 1 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2 The objection period provided in the Scheduling Order

was not intended to provide a party with an opportunity to alert

the scheduling judge to a procedure that should have been brought

to the judge’s attention in a timely-filed status report. But

since the objection period language indicates otherwise,

Defendants’ objection is considered. Because of the potential

for misuse of the objection period section of the Scheduling

Order at p. 10, lns. 13-18, it is withdrawn. 

2

expert disclosures under Rule 26 be bifurcated such that expert

disclosures currently scheduled for October 14, 2005, be limited to

opinions addressing claim construction, and that expert disclosures

for all opinions other than claim construction be set for April 3,

2005. (Id. at 2.)

Plaintiff opposes Defendants’ objection arguing that the

Scheduling Order should not be amended because (1) Plaintiff informed

the Lesniewski’s that they would be sued individually before Plaintiff

filed its First Amended Complaint, (2) Defendants have not diligently

pursued or responded to discovery in this action, (3) this matter is

not as complex as Defendants suggest, and (4) bifurcating the experts’

disclosures (i.e., creating two rounds of expert reports and expert

discovery) will impose an unreasonable burden and expense on

Plaintiff. (Pl.’s Resp. to Defs.’ Objection at 2-3).

Because of the infirmity of the objection period language,

it is unclear whether sustaining an objection and granting a requested

change to the Scheduling Order effects an amendment governed by

Rule 16(b). This ambiguity in the Scheduling Order will be construed

in Defendants’ favor, since Defendants could have reasonably assumed

they could effect a change in the Scheduling Order by objecting within

the prescribed objection period.2

Since Defendants’ proposed bifurcation of expert disclosures

is a workable procedure, that procedure will be adopted. Therefore,

Case 2:04-cv-02700-GEB-DAD Document 43 Filed 07/25/05 Page 2 of 3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

subparagraph (b) of the Scheduling Order’s Discovery section (p. 4,

lns. 3-7) is amended as follows:

Each party shall comply with Federal Rule of Civil

Procedure 26(a)(2)’s initial expert witness

disclosure and report requirements as to claim

construction on or before October 14, 2005, and

with the rebuttal expert disclosures authorized

under the Rule on or before November 18, 2005. 

Also, each party shall comply with Rule 26(a)(2)’s

initial expert witness disclosure and report

requirements as to any relevant opinion not

concerning claim construction on or before

April 3, 2006, and with the rebuttal expert

disclosures authorized under the Rule on or before

May 5, 2006.

IT IS SO ORDERED.

Dated: July 22, 2005

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

Case 2:04-cv-02700-GEB-DAD Document 43 Filed 07/25/05 Page 3 of 3