IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

4WEB, INC, 

Plaintiff,

v.

NUVASIVE, INC.,

Defendants.

 Civil Action No.: 2:23-CV-0192-JRG

DOCKET CONTROL ORDER

In accordance with the scheduling conference held in this case, it is hereby ORDERED

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

May 5, 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

April 7, 2025 * If a juror questionnaire is to be used, an editable (in Microsoft Word 

format) questionnaire shall be jointly submitted to the Deputy Clerk 

in Charge by this date.3

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.

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

Advance of Voir Dire.

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March 31, 2025 *Pretrial Conference – 9:00 a.m.in Marshall, Texas before Judge 

Rodney Gilstrap 

March 24, 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.

March 24, 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

March 17, 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.

March 10, 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.

March 10, 2025 Serve Objections to Rebuttal Pretrial Disclosures

March 3, 2025 Serve Objections to Pretrial Disclosures; and Serve Rebuttal Pretrial 

Disclosures

February 18, 2025 Serve Pretrial Disclosures (Witness List, Deposition Designations, 

and Exhibit List) by the Party with the Burden of Proof

February 10, 2025 *Response to Dispositive Motions (including Daubert Motions). 

Responses to dispositive motions that were filed prior to the 

dispositive motion deadline, including DaubertMotions, shall be due 

in accordance with Local Rule CV-7(e), not to exceed the deadline 

as set forth in this Docket Control Order.4 Motions for Summary 

Judgment shall comply with Local Rule CV-56.

4 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 

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January 27, 2025 *File Motions to Strike Expert Testimony (including Daubert

Motions) 

No motion to strike expert testimony (including a Daubert motion) 

may be filed after this date without leave of the Court.

January 27, 2025 *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. 

January 21, 2025 Deadline to Complete Expert Discovery

January 6, 2025 Serve Disclosures for Rebuttal Expert Witnesses

December 16, 2024 Deadline to Complete Fact Discovery and File Motions to Compel 

Discovery

December 16, 2024 Serve Disclosures for Expert Witnesses by the Party with the Burden 

of Proof

November 27, 2024 Comply with P.R. 3-7 (Opinion of Counsel Defenses)

November 6, 2024 *Claim Construction Hearing – 9:00a.m. in Marshall, Texas before 

Judge Rodney Gilstrap

October 23, 2024 *Comply with P.R. 4-5(d) (Joint Claim Construction Chart)

October 16, 2024 *Comply with P.R. 4-5(c) (Reply Claim Construction Brief)

October 9, 2024 Comply with P.R. 4-5(b) (Responsive Claim Construction Brief)

September 25, 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). 

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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September 25, 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.

September 11, 2024 Comply with P.R. 4-4 (Deadline to Complete Claim Construction 

Discovery)

September 4, 2024 File Response to Amended Pleadings

August 21, 2024 *File Amended Pleadings

It is not necessary to seek leave of Court to amend pleadings prior to 

this deadline unless the amendment seeks to assert additional patents.

August 14, 2024 Comply with P.R. 4-3 (Joint Claim Construction Statement)

July 24, 2024 Comply with P.R. 4-2 (Exchange Preliminary Claim Constructions)

July 3, 2024 Comply with P.R. 4-1 (Exchange Proposed Claim Terms)

November 9, 2023 Comply with Standing Order Regarding Subject-Matter Eligibility 

Contentions5

November 9, 2023 Comply with P.R. 3-3 & 3-4 (Invalidity Contentions)

October 19, 2023 *File Proposed Protective Order and Comply with Paragraphs 1 & 3 

of the Discovery Order (Initial and Additional Disclosures)

The Proposed Protective Order shall be filed as a separate motion 

with the caption indicating whether or not the proposed order is 

opposed in any part.

October 12, 2023 *File Proposed Docket Control Order and Proposed Discovery Order

The Proposed Docket Control Order and Proposed Discovery Order 

shall be filed as separate motions with the caption indicating whether 

or not the proposed order is opposed in any part.

October 5, 2023 Join Additional Parties

5_http://www.txed.uscourts.gov/sites/default/files/judgeFiles/EDTX%20Standing%20Order%20

Re%20Subject%20Matter%20Eligibility%20Contentions%20.pdf [https://perma.cc/RQN2-

YU5P]

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September 14, 2023 Comply with P.R. 3-1 & 3-2 (Infringement Contentions)

(*) 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

Mediation: 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 

mediation 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 

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 been largely 

developed.

Motions for Continuance: The following 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;

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(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 the 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 of 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 date 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.

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 not 

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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