Page 1 of 10 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

IMPLICIT, LLC,

Plaintiff,

v. 

CAPITAL ONE, NATIONAL 

ASSOCIATION, 

Defendant.

Civil Action No. 4:23-cv-770-SDJ

JURY TRIAL DEMANDED 

JOINT RULE 26(f) CONFERENCE REPORT

The parties in the above-captioned case have conferred as required by Fed. R. Civ. P. 

26(f) and the Court’s Order Governing Proceedings (“Order”) (Dkt. 21) and file this joint report. 

The Rule 26(f) conference was held on February 29, 2024. Christopher Clayton of 

Devlin Law Firm LLC participated on behalf of Plaintiff Implicit, LLC (“Plaintiff” or 

“Implicit”). Erik Halverson and Jonah Heemstra of K&L Gates LLP participated on behalf of 

Defendant Capital One, National Association (“Defendant” or “Capital One”). 

1. Suggested modifications of the proposed deadlines for the scheduling order set out 

in Appendix B 

The chart below reflects the parties’ proposed case deadlines. There is no disagreement 

between the parties with respect to any date below. The dates in the chart are written in bold 

face if the parties propose any modification to the Court’s proposed deadline.

Case 4:23-cv-00770-SDJ Document 23 Filed 03/15/24 Page 1 of 10 PageID #: 147
Page 2 of 10 

Court’s 

Proposed 

Deadline

Agreed 

Proposed 

Deadline

Description

To be discussed 

at CMC

Mediation. The parties expect to agree upon a mediator and 

notify the Court by the date identified in the schedule.

Wednesday, 

March 13, 2024 

(No later than 

21 days before 

CMC)

Wednesday, 

March 13, 

2024 

Deadline for Motions to Transfer.

Saturday, April 

13, 2024 

(10 days after 

CMC)

Monday, 

April 15, 

2024 

P.R. 3-1 Disclosure of Asserted Claims and Infringement 

Contentions (and P.R. 3-2 document production) to be 

served.

Wednesday, 

May 8, 2024 

(5 wks after 

CMC)

Wednesday, 

May 8, 2024

Join additional parties.

P.R. 3-3 Invalidity Contentions (and P.R. 3-4 document 

production) to be served. To the extent not already required 

to be disclosed, exchange Mandatory Disclosures on all 

issues, including damages.

Saturday, May 

18, 2024 

(No later than 

45 days after 

CMC)

Monday, 

May 20, 2024 

Parties to exchange proposed terms for construction and 

identify any claim element governed by 35 U.S.C. § 112, ¶ 6 

(P.R. 4-1).

Wednesday, 

May 22, 2024 

(7 wks after 

CMC)

Wednesday, 

May 22, 2024 

Privilege logs to be exchanged by parties (or a letter to the 

Court stating that there are no disputes as to claims of 

privileged documents). 

Friday, June 7, 

2024 

(No later than 

65 days after 

CMC)

Friday, June 7, 

2024 

Parties to exchange preliminary proposed claim construction 

and extrinsic evidence supporting same. (P.R. 4-2). 

Wednesday, 

July 3, 2024 

(13 wks after 

CMC)

Wednesday, 

July 3, 2024 

Parties’ Final Amended Pleadings. (A motion for leave is 

required.) 

Case 4:23-cv-00770-SDJ Document 23 Filed 03/15/24 Page 2 of 10 PageID #: 148
Page 3 of 10 

Court’s 

Proposed 

Deadline

Agreed 

Proposed 

Deadline

Description

Sunday, July 7, 

2024 

(No later than 

95 days after 

CMC)

Monday, July 

8, 2024 

Joint Claim Construction and Prehearing Statement to be 

filed. (P.R. 4-3). Provide an estimate of how many pages are 

needed to brief the disputed claims. 

Wednesday, 

July 24, 2024 

(16 wks after 

CMC)

Wednesday, 

July 24, 2024 Respond to Amended Pleadings. 

Tuesday, 

August 6, 2024 

(No later than 

125 days after 

CMC)

Tuesday, 

August 6, 

2024 

Completion date for discovery on claim construction. (P.R. 

4-4).

Wednesday, 

August 21, 2024 

(No later than 

140 days after 

CMC)

Wednesday, 

August 21, 

2024 

Opening claim construction (“CC”) brief. 

(P.R. 4-5(a)).

Wednesday, 

September 4, 

2024 

(No later than 2 

wks after CC 

brief)

Wednesday, 

September 4, 

2024 

Responsive claim construction brief. 

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

Wednesday, 

September 11, 

2024 

(No later than 7 

days after 

responsive CC

brief)

Wednesday, 

September 11, 

2024 

Reply claim construction brief. 

(P.R. 4-5(c))

Monday, August 

26, 2024 

(4 wks before 

CC hearing)

Monday, 

August 26, 

2024 

Submit technology synopsis/tutorial (both hard copy and 

disk). 

Case 4:23-cv-00770-SDJ Document 23 Filed 03/15/24 Page 3 of 10 PageID #: 149
Page 4 of 10 

Court’s 

Proposed 

Deadline

Agreed 

Proposed 

Deadline

Description

Friday, 

September 13, 

2024 

(At least 10 days 

before CC 

hearing)

Friday, 

September 13, 

2024 

Parties to file joint claim construction and chart. (P.R. 4-

5(d)). Parties shall work together to agree on as many claim 

terms as possible.

Monday, 

September 23, 

2024

Monday, 

September 23, 

2024

Claim Construction hearing Monday, September 23, 2024, at 

10:00 a.m. at the United States Courthouse, 7940 Preston 

Road, Plano, TX 75024.

Monday, 

October 28, 

2024 

(5 wks after CC 

hearing) 

Monday, 

October 28, 

2024 

Deadline for Initial Mandatory Disclosure of all persons, 

documents, data compilations and tangible things, which are 

relevant to a claim or defense of any party and which has not 

previously been disclosed. This deadline is not an extension 

of earlier deadlines set out in this Court’s order or the Patent 

Rules, nor an excuse to delay disclosure of information. It is 

a “catchall” deadline for provision of all remaining 

information which may be relevant to a claim or defense of 

any party at trial.

Monday, 

November 4, 

2024 

(6 wks after CC 

hearing)

Monday, 

November 4, 

2024 

Parties shall notify the Court of the name, address, and 

telephone number of the agreed-upon mediator, or request 

that the Court select a mediator, if they are unable to agree on 

one. 

Monday, 

November 25, 

2024 

(9 wks after CC 

hearing)

Friday, 

November 22, 

2024 

Parties with burden of proof to designate Expert Witnesses 

other than claims construction experts and provide their 

expert witness reports, to include for ALL experts all 

information set out in Rule 26(a)(2)(B). 

Comply with P.R. 3-7 (Designation of Willfulness Opinions).

Monday, 

December 9, 

2024 

(11 wks after 

CC hearing) 

Monday, 

December 9, 

2024 

Parties to Designate Expert Witnesses on issues for which the 

parties do not bear the burden of proof, and provide their 

expert witness report, to include for ALL experts all 

information set out in Rule 26(2)(B). 

Note: Objections to any expert, including Daubert motions, 

shall be filed within 3 weeks after the expert’s Report has 

been disclosed. Such objections and motions are limited to 

ten pages each.

Monday, 

December 16, 

2024

Monday, 

December 16, 

2024

Mediation deadline. 

Case 4:23-cv-00770-SDJ Document 23 Filed 03/15/24 Page 4 of 10 PageID #: 150
Page 5 of 10 

Court’s 

Proposed 

Deadline

Agreed 

Proposed 

Deadline

Description

(12 wks after 

CC hearing)

Monday, 

December 23, 

2024 

(13 wks after 

CC hearing)

Friday, 

December 20, 

2024 

Discovery deadline. All discovery must be served in time to 

be completed by this date. 

Monday, 

January 13, 

2025 

(16 wks after 

CC hearing and 

no later than 

110 days prior 

to the filing of 

the Joint Final 

PTO)

Monday, 

January 13, 

2025 

File Dispositive Motions and any other motions that may 

require a hearing. Regardless of how many dispositive 

motions a party files, each party is limited to a total of sixty 

pages for such motions. Each individual motion shall comply 

with Local Rule CV-7. 

Responses to motions shall be due in accordance with Local 

Rule CV-7(e).

Friday, April 11, 

2025 

(5 wks before 

final pretrial 

conference 

“PTC”)

Friday, April 

11, 2025 

Counsel and unrepresented parties are each responsible for 

contacting opposing counsel and unrepresented parties to 

determine how they will prepare the Joint Final Pretrial 

Order, see www.txed.uscourts.gov, and Proposed Jury 

Instructions and Verdict Form (or Proposed Findings of Fact 

and Conclusions of Law in nonjury cases). 

Wednesday, 

April 16, 2025 

(30 days before 

PTC)

Wednesday, 

April 16, 2025 

Motions in limine due.

File Joint Final Pretrial Order. Exchange Exhibits and deliver 

copies to the Court. At this date, all that is required to be 

submitted to the Court is a hyperlinked exhibit list on disk (2 

copies) and no hard copies.

Friday, April 18, 

2025 

(4 wks before 

PTC)

Friday, April 

18, 2025 

Video Deposition Designation due. 

Each party who proposes to offer a deposition by video shall 

serve on all other parties a disclosure identifying the line and 

page numbers to be offered. All other parties will have seven 

calendar days to serve a response with any objections and 

requesting cross examination line and page numbers to be 

included. Counsel must consult on any objections and only 

those which cannot be resolved shall be presented to the 

Case 4:23-cv-00770-SDJ Document 23 Filed 03/15/24 Page 5 of 10 PageID #: 151
Page 6 of 10 

Court’s 

Proposed 

Deadline

Agreed 

Proposed 

Deadline

Description

Court. The party who filed the initial Video Deposition 

Designation is responsible for preparation of the final edited 

video in accordance with all parties’ designations and the 

Court’s rulings on objections.

Friday, May 2, 

2025 

(2 wks before 

PTC)

Friday, May 2, 

2025 

Response to motions in limine due.

File objections to witnesses, deposition extracts, and exhibits, 

listed in pre-trial order. (This does not extend the deadline to 

object to expert witnesses.) If numerous objections are filed, 

the Court may set a hearing prior to the final pretrial 

conference.

File Proposed Jury Instructions/Form of Verdict (or Proposed 

Findings of Fact and Conclusions of Law). 

File Proposed Voir Dire Questions.

Friday, 

May 16, 2025

Friday, 

May 16, 2025 

Final Pretrial Conference at 1:30 p.m. at the United States 

Courthouse, 7940 Preston Road, Plano, TX 75024. 

To be 

determined

10:00 a.m. Jury Selection and Trial at the United States 

Courthouse, 7940 Preston Road, Plano, TX 75024. 

Agreements Between Parties:

Privilege Logs

The parties agree that they need not log any documents generated after the 

commencement of this litigation.

a) The need for and any specific limits on discovery relating to claim construction, 

including depositions of witnesses, including expert witnesses;

The parties agree that there is no need for any specific limits on discovery relating to 

claim construction beyond those set out in the Federal Rules of Civil Procedure. 

b) The scheduling of a Claim Construction Pre-hearing Conference to be held after 

the Joint Claim Construction and Pre-hearing Statement provided for in P.R.4-3 

has been filed.

The parties expect to not need a claim construction pre-hearing conference in this matter. 

Case 4:23-cv-00770-SDJ Document 23 Filed 03/15/24 Page 6 of 10 PageID #: 152
Page 7 of 10

2. If the parties believe mediation may be appropriate, and the parties can agree upon 

a mediator, the name, address, and phone number of that mediator should be 

stated.

The parties have discussed the value of mediation and at this point believe that mediation 

may be beneficial in the future but would not currently be beneficial.

3. What changes, if any, should be made to the limitations on discovery imposed by the

rules, including the number of depositions and interrogatories. 

The parties believe no modifications need to be made to the normal limitations on 

discovery as set out in the Order Governing Proceedings.

4. The identity of persons expected to be deposed. 

At this time Plaintiff anticipates that any persons expected to be deposed will come from 

the lists disclosed in the Initial Disclosures. Plaintiff will supplement those disclosures should 

additional persons be identified who may be expected to be deposed.

At this time Defendant anticipates that any persons expected to be deposed will come 

from the lists disclosed in the Initial Disclosures. Defendant will supplement those disclosures 

should additional persons be identified who may be expected to be deposed.

The parties reserve the right to depose additional persons as they may become necessary.

5. Any issues relating to disclosure of information (electronically stored and otherwise) 

including the form or forms in which it should be produced and timing of 

production. (See Section E - Mandatory Disclosures.) 

None at this time. 

6. Any issues relating to preserving discoverable information, including whether a 

Preservation Order is needed to protect any documents and/or electronically stored 

information. 

The parties certify that they have taken reasonable steps to ensure that documents and 

things relevant to this action have been (and are continuing to be) preserved. The parties 

Case 4:23-cv-00770-SDJ Document 23 Filed 03/15/24 Page 7 of 10 PageID #: 153
Page 8 of 10

understand their duties to preserve relevant information and do not believe that a preservation 

order is necessary.

7. Whether any other orders should be entered by the Court pursuant to Fed. R. Civ. 

P. 26(c), Fed. R. Civ. P. 16(b), or Fed. R. Civ. P. 16(c). 

The parties jointly state that they have met and conferred regarding the Protective Order

and will continue to meet and confer to submit a joint proposed Protective Order to the Court. 

8. Estimated trial time. 

The parties estimate the above captioned action to be tried will require five days.

9. The names of the attorneys who will appear on behalf of the parties at the 

management conference (the appearing attorney must be an attorney of record and 

have full authority to bind the client). 

It is expected that Christopher Clayton from Devlin Law Firm LLC will attend the Case 

Management Conference on behalf of Plaintiff.

It is expected that Melissa Smith of Gillam & Smith LLP and Erik Halverson of K&L 

Gates LLP will attend the Case Management Conference on behalf of Defendant.

10. Any other matters counsel deem appropriate for inclusion in the joint conference 

report. 

Defendant has prepared, and expects to file, inter partes review petitions challenging the 

patentability of the patents asserted in this case. Defendant will seek to stay this case upon filing 

of those petitions. 

Case 4:23-cv-00770-SDJ Document 23 Filed 03/15/24 Page 8 of 10 PageID #: 154
Page 9 of 10 

Dated: March 15, 2024 Respectfully submitted, 

DEVLIN LAW FIRM LLC

By: James M. Lennon 

James M. Lennon 

jlennon@devlinlawfirm.com 

Timothy Devlin 

tdevlin@devlinlawfirm.com 

Christopher Clayton 

cclayton@devlinlawfirm.com 

DEVLIN LAW FIRM LLC

1526 Gilpin Avenue 

Wilmington, DE 19806 

Telephone: (302) 449-9010 

Facsimile: (302) 353-4251 

Attorneys for Plaintiff 

Implicit, LLC

 

GILLAM & SMITH, LLP

By: Erik J. Halverson 

Melissa R. Smith

Texas Bar No. 24001351 

GILLAM & SMITH, LLP

303 South Washington Avenue 

Marshall, Texas 75670 

Telephone: (903) 934-8450 

Facsimile: (903) 934-9257 

Email: melissa@gillamsmithlaw.com

Devon C. Beane 

Erik J. Halverson 

K&L GATES LLP

70 West Madison Street, Suite 3100 

Chicago, Illinois 60602 

Telephone: (312) 807-4436 

Facsimile: (312) 827-8000 

Attorneys for Defendant 

Capital One, National Association

Case 4:23-cv-00770-SDJ Document 23 Filed 03/15/24 Page 9 of 10 PageID #: 155
Page 10 of 10 

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was filed electronically on all 

counsel of record through the Court’s electronic filing system on March 15, 2024. 

/s/ James M. Lennon 

 James M Lennon 

Case 4:23-cv-00770-SDJ Document 23 Filed 03/15/24 Page 10 of 10 PageID #: 156