IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

XR COMMUNICATIONS, LLC, dba 

VIVATO TECHNOLOGIES,

Plaintiff,

v.

AT&T SERVICES INC.; AT&T MOBILITY 

LLC; AND AT&T CORP.,

Defendants, 

ERICSSON INC. and

NOKIA OF AMERICA CORPORATION,

 Intervenors.

Case No. 2:23-CV-00202-JRG-RSP

(Lead Case)

JURY TRIAL DEMANDED

XR COMMUNICATIONS, LLC, dba 

VIVATO TECHNOLOGIES,

Plaintiff,

v.

VERIZON COMMUNICATIONS, INC.; 

CELLCO PARTNERSHIP D/B/A VERIZON 

WIRELESS

Defendants,

ERICSSON INC. and

NOKIA OF AMERICA CORPORATION,

 Intervenors. 

Case No. 2:23-CV-00203-JRG-RSP

(Member Case)

JURY TRIAL DEMANDED

Case 2:23-cv-00202-JRG-RSP Document 74-1 Filed 05/31/24 Page 1 of 8 PageID #: 1540
XR COMMUNICATIONS, LLC, dba VIVATO 

TECHNOLOGIES,

Plaintiff,

v.

T-MOBILE USA, INC.,

Defendant, 

ERICSSON INC. and

NOKIA OF AMERICA CORPORATION,

 Intervenors. 

Case No. 2:23-CV-00204-JRG-RSP

(Member Case)

JURY TRIAL DEMANDED

FIRST AMENDED DOCKET CONTROL ORDER

In accordance with the Joint Motion to Amend Docket Control Order, it is hereby 

ORDERED that the following schedule of deadlines is in effect until further order of this Court: 

Original Date Amended Date Event

March 3, 2025 * Jury Selection – 9:00 a.m. in Marshall, Texas

7 days before Jury 

Selection

*Defendant to disclose final invalidity theories, 

final prior art references/combinations, and final 

equitable defenses.1

10 days before Jury 

Selection 

*Plaintiff to disclose final election of Asserted 

Claims.2

1 The proposed DCO shall include this specific deadline. The deadline shall read, “7 days before 

Jury Selection,” and shall not include a specific date.

2 Given the Court’s past experiences with litigants dropping claims and defenses during or on the 

eve of trial, the Court is of the opinion that these additional deadlines are necessary. The proposed 

DCO shall include this specific deadline. The deadline shall read, “10 days before Jury Selection,” 

and shall not include a specific date.

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February 3, 2025 * If a juror questionnaire is to be used, and editable 

(in Microsoft Word format) questionnaire shall be 

jointly submitted to the Deputy Clerk in Charge by 

this date.3

January 27, 2025 *Pretrial Conference – 9:00 a.m. in Marshall, 

Texas before Judge Roy Payne4

January 21, 2025

* Notify Court of Agreements Reached During 

Meet and Confer

The parties are ordered to meet and confer on any 

outstanding objections or motions in limine. The 

parties shall advise the Court of any agreements 

reached no later than 1:00 p.m. three (3) business 

days before the pretrial conference.

January 21, 2025

* File Joint Pretrial Order, Joint Proposed Jury

Instructions, Joint Proposed Verdict Form,

Responses to Motions in Limine, Updated Exhibit

Lists, Updated Witness Lists, and Updated

Deposition Designations

January 13, 2025

* File Notice of Request for Daily Transcript or 

Real Time Reporting. 

If a daily transcript or real time reporting of court 

proceedings is requested for trial, the party or 

parties making said request shall file a notice with 

the Court and e-mail the Court Reporter, 

Shawn McRoberts, at 

shawn_mcroberts@txed.uscourts.gov

3 The Parties are referred to the Court’s Standing Order Regarding Use of Juror Questionnaires in 

Advance of Voir Dire. 

4 Defendant T-Mobile USA, Inc. notes that the Court set the Pretrial Conference in this matter for 

the same day as the Court set jury selection in the matter of General Access Solutions, Ltd. v. TMobile US, Inc., et al, Case No. 2:23-cv-00158-JRG (EDTX) (DI 29-1). At this time, Defendant 

T-Mobile USA, Inc. does not seek relief because one or both matters may be disposed prior to the 

date of the Pretrial Conference in this case, but T-Mobile notifies the Court of this conflict and 

reserves the right to request relief at a later date.

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January 6, 2025

File Motions in Limine

The parties shall limit their motions in limine to 

issues that if improperly introduced at trial would 

be so prejudicial that the Court could not alleviate 

the prejudice by giving appropriate instructions to 

the jury. 

January 6, 2025 Serve Objections to Rebuttal Pretrial Disclosures 

December 30, 2024 Serve Objections to Pretrial Disclosures; and 

Serve Rebuttal Pretrial Disclosures

December 16, 2024 Serve Pretrial Disclosures (Witness List, 

Deposition Designations, and Exhibit List) by the 

Party with the Burden of Proof 

December 9, 2024 * Response to Dispositive Motions (including 

Daubert Motions). Responses to dispositive 

motions that were filed prior to the dispositive 

motion deadline, including Daubert Motions, shall 

be due in accordance with Local Rule CV-7(e), not 

to exceed the deadline as set forth in this Docket 

Control Order.5 Motions for Summary Judgment 

shall comply with Local Rule CV-56. 

November 25, 2024 * File Motions to Strike Expert Testimony 

(including Daubert Motions) 

No motion to strike expert testimony (including 

Daubert motion) may be filed after this date 

without leave of the Court. 

5 The parties are directed to Local Rule CV-7(d), which provides in part that “[a] party’s failure to 

oppose a motion in the manner prescribed herein creates a presumption that the party does not 

controvert the facts set out by movant and has no evidence to offer in opposition to the motion.” 

If the deadline under Local Rule CV 7(e) exceeds the deadline for Response to Dispositive 

Motions, the deadline for Response to Dispositive Motions controls.

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November 25, 2024 * File Dispositive Motions 

No dispositive motion may be filed after this date 

without leave of the Court. 

Motions shall comply with Local Rule CV-56 and 

Local Rule CV-7. Motions to extend page limits 

will only be granted in exceptional circumstances. 

Exceptional circumstances require more than 

agreement among the parties.

November 18, 2024 Deadline to Complete Expert Discovery 

November 8, 2024 Serve Disclosures for Rebuttal Expert Witnesses 

October 11, 2024 Serve Disclosures for Expert Witnesses by the 

Party with the Burden of Proof 

October 4, 2024 Deadline to Complete Fact Discovery and File 

Motions to Compel Discovery 

October 2, 2024 Comply with P.R. 3-7 (Opinions of Counsel 

Defenses) 

September 11, 2024 * Claim Construction Hearing – 9:00 a.m. in 

Marshall, Texas before Judge Roy Payne

August 28, 2024 * Comply with P.R. 4-5(d) (Joint Claim 

Construction Chart) 

August 21, 2024 * Comply with P.R. 4-5(c) (Reply Claim 

Construction Brief) 

August 12, 2024 Comply with P.R. 4-5(b) (Responsive Claim 

Construction Brief) 

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July 15, 2024 Comply with P.R. 4-5(a) (Opening Claim 

Construction Brief) and Submit Technical 

Tutorials (if any). 

Good cause must be shown to submit 

technical tutorials after the deadline to comply 

with P.R. 4-5(a)

July 15, 2024 Deadline to Substantially Complete Document 

Production and Exchange Privilege Logs

Counsel are expected to make good faith efforts to 

produce all required documents as soon as they are 

available and not wait until the substantial 

completion deadline. 

July 10, 2024 File Response to Amended Pleadings 

June 28, 2024 Comply with P.R. 4-4 (Deadline to Complete 

Claim Construction Discovery) 

June 26, 2024 * File Amended Pleadings 

It is not necessary to seek leave of Court to amend 

pleadings prior to this deadline unless amendment 

seeks to assert additional patents.

June 5, 2024 June 11, 2024 Comply with P.R. 4-3 (Joint Claim Construction 

Statement) 

(*) indicates a deadline that cannot be changed without an acceptable showing of good cause. 

Good cause is not shown merely by indicating that the parties agree that the deadline 

should be changed. 

ADDITIONAL REQUIREMENTS

Mediations: While certain cases may benefit from mediation, such may not be appropriate 

for every case. The Court finds that the Parties are best suited to evaluate whether mediation will 

benefit the case after the issuance of the Court’s claim construction order. Accordingly, the Court 

ORDERS the Parties to file a Joint Notice indicating whether the case should be referred for 

mediations within fourteen days of the issuance of the Court’s claim construction order. As 

a part of such Joint Notice, the Parties should indicate whether they have a mutually agreeable 

Case 2:23-cv-00202-JRG-RSP Document 74-1 Filed 05/31/24 Page 6 of 8 PageID #: 1545
mediator for the Court to consider. If the Parties disagree about whether mediation is appropriate, 

the Parties should set forth a brief statement of their competing positions in the Joint Notice. 

Summary Judgment Motions, Motions to Strike Expert Testimony, and Daubert 

Motions: For each motion, the moving party shall provide the Court with two (2) hard copies of 

the completed briefing (opening motion, response, reply, and if applicable, sur-reply), excluding 

exhibits, in D-three-ring binders, appropriately tabbed. All documents shall be single-sided and 

must include the CM/ECF header. These copies shall be delivered to the Court within three (3) 

business days after briefing has completed. For expert-related motions, complete digital copies of 

the relevant expert report(s) and accompanying exhibits shall be submitted on a single flash drive 

to the Court. Complete digital copies of the expert report(s) shall be delivered to the Court no later 

than the dispositive motion deadline. 

Indefiniteness: In lieu of early motions for summary judgment, the parties are directed to 

include any arguments related to the issue of indefiniteness in their Markman briefing, subject to 

the local rules’ normal page limits. 

Lead Counsel: The Parties are directed to Local Rule CV-11(a)(1), which provides that 

“[o]n the first appearance through counsel, each party shall designate a lead attorney on the 

pleadings or otherwise.” Additionally, once designated, a party’s lead attorney may only be 

changed by the filing of a Motion to Change Lead Counsel and thereafter obtaining from the Court 

an Order granting leave to designate different lead counsel. The true lead counsel should be 

designated early and should not expect to parachute in as lead once the case has largely been 

developed. 

Motions for Continuance: The following excuses will not warrant a continuance nor 

justify a failure to comply with the discovery deadline: 

(a) The fact that there are motions for summary judgment or motions to dismiss pending; 

(b) The fact that one or more of the attorneys is set for trial in another court on the same 

day, unless the other setting was made prior to the date of this order or was made as 

a special provision for the parties in the other case; 

(c) The failure to complete discovery prior to trial, unless the parties can demonstrate 

that it was impossible to complete discovery despite their good faith effort to do so. 

Amendments to Docket Control Order (“DCO”): Any motion to alter any date on the 

DCO shall take the form of a motion to amend the DCO. The motion to amend the DCO shall 

include a proposed order that lists all the remaining dates in one column (as above) and the 

proposed changes to each date in an additional adjacent column (if there is no change for a date 

the proposed dated column should remain blank or indicate that it is unchanged). In other words, 

the DCO in the proposed order should be complete such that one can clearly see all the remaining 

deadlines and the changes, if any, to those deadlines, rather than needing to also refer to an earlier 

version of the DCO. 

Case 2:23-cv-00202-JRG-RSP Document 74-1 Filed 05/31/24 Page 7 of 8 PageID #: 1546
Proposed DCO: The Parties’ Proposed DCO should also follow the format described above 

under “Amendments to the Docket Control Order (“DCO”).” 

Joint Pretrial Order: In the contentions of the Parties included in the Joint Pretrial Order, 

the Plaintiff shall specify all allegedly infringed claims that will be asserted at trial. The Plaintiff 

shall also specify the nature of each theory of infringement, including under which subsections of 

35 U.S.C. § 271 it alleges infringement, and whether the Plaintiff alleges divided infringement or 

infringement under the doctrine of equivalents. Each Defendant shall indicate the nature of each 

theory of invalidity, including invalidity for anticipation, obviousness, subject-matter eligibility, 

written description, enablement, or any other basis for invalidity. The Defendant shall also specify 

each prior art reference or combination of references upon which the Defendant shall rely at trial, 

with respect to each theory of invalidity. The contentions of the Parties may not be amended, 

supplemented, or dropped without leave of the Court based upon a showing of good cause. 

Trial: All parties must appear in person at trial. All non-individual (including but no limited 

to corporate) parties must appear at trial through the presence in person of a designated 

representative. Once they have appeared, any representative of a non-individual party shall not be 

replaced or substituted without express leave of Court. 

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