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.

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

(LEAD CASE)

JURY TRIAL DEMANDED

[PROPOSED] DOCKET CONTROL ORDER

In accordance with the scheduling conference held in this case and the parties’ agreed-to 

schedule, it is hereby ORDERED that the following schedule of deadlines is in effect until further 

order of this court.

Court’s Schedule Proposed 

Change

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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Court’s Schedule Proposed 

Change

Event

February 3, 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

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.

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

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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Court’s Schedule Proposed 

Change

Event

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 a 

Daubert motion) may be filed after this date without 

leave of the Court.

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 4, 2024 November 8, 

2024

Serve Disclosures for Rebuttal Expert Witnesses

October 15, 2024 October 4, 

2024

Deadline to Complete Fact Discovery and File 

Motions to Compel Discovery

October 15, 2024 October 11, 

2024

Serve Disclosures for Expert Witnesses by the Party 

with the Burden of Proof

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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Court’s Schedule Proposed 

Change

Event

October 2, 2024 Comply with P.R. 3-7 

(Opinion 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 14, 2024 August 12, 

2024

Comply with P.R. 4-5(b) 

(Responsive Claim Construction Brief)

July 31, 2024 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 31, 2024 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 17, 2024 June 28, 2024 Comply with P.R. 4-4 (Deadline to Complete Claim 

Construction Discovery)

July 10, 2024 File Response to Amended Pleadings

June 26, 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.

June 19, 2024 June 5, 2024 Comply with P.R. 4-3 

(Joint Claim Construction Statement)

May 29, 2024 May 15, 2024 Comply with P.R. 4-2 

(Exchange Preliminary Claim Constructions)

May 8, 2024 May 1, 2024 Comply with P.R. 4-1 

(Exchange Proposed Claim Terms)

September 28, 

2023

October 12, 

2023

Comply with Standing Order Regarding SubjectMatter Eligibility Contentions6

6http://www.txed.uscourts.gov/sites/default/files/judgeFiles/EDTX%20Standing%20Order%20Re%20Su

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Court’s Schedule Proposed 

Change

Event

September 28, 

2023

October 12, 

2023

Comply with P.R. 3-3 & 3-4 

(Invalidity Contentions)

August 31, 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.

August 24, 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.

July 27, 2023 Join Additional Parties

July 28, 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

bject%20Matter%20Eligibility%20Contentions%20.pdf

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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 motionsforsummary 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;

(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 

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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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