IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

XR COMMUNICATIONS, LLC, dba 

VIVATO TECHNOLOGIES,

Plaintiff,

v.

VERIZON COMMUNICATIONS, INC.; 

CELLCO PARTNERSHIP D/B/A VERIZON 

WIRELESS,

Defendants.

ERICSSON INC.; 

NOKIA OF AMERICA CORPORATION,

Intervenors.

Case No. 2:23-cv-00470-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

July 21, 2025 *Jury Selection - 9:00 a.m. in Marshall, Texas1

7 days before Jury 

Selection

*Defendant to disclose final invalidity theories, final 

prior art references/combinations, and final equitable 

defenses.2

1 Defendant T-Mobile USA, Inc. notes that the Court set jury selection and the pretrial conference 

in this matter for the same day as the Court set jury selection and the pretrial conference in the 

matter of Innovative Sonic Limited v. T-Mobile USA, Inc., Case No. 2:23-cv-00490-JRG (E.D. 

Tex.) (DI 29). At this time, T-Mobile does not seek relief because one or both matters may be 

disposed prior to the date of the pretrial conference in either case, but T-Mobile notifies the Court 

of this conflict and reserves the right to request relief at a later date.

2 The Proposed DCO shall include this specific deadline. The deadline shall read, “7 days before 

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Court’s Schedule Proposed 

Change

Event

10 days before Jury 

Selection

*Plaintiff to disclose final election of Asserted Claims.3

June 23, 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.4

June 16, 2025 *Pretrial Conference - 9:00 a.m. in Marshall, Texas 

before Judge Roy Payne

June 9, 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.

June 2, 2025 June 9, 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

May 27, 2025 June 2, 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.

May 27, 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 Selection,” and shall not include a specific date.

3 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.

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

Advance of Voir Dire.

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Court’s Schedule Proposed 

Change

Event

jury.

May 27, 2025 Serve Objections to Rebuttal Pretrial Disclosures

May 19, 2025 Serve Objections to Pretrial Disclosures; and Serve 

Rebuttal Pretrial Disclosures

May 5, 2025 Serve Pretrial Disclosures (Witness List, Deposition 

Designations, and Exhibit List) by the Party with the 

Burden of Proof

April 28, 2025 *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.

April 14, 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.

April 14, 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.

April 7, 2025 Deadline to Complete Expert Discovery

March 24, 2025 March 27, 

2025

Serve Disclosures for Rebuttal Expert Witnesses

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

March 3, 2025 February 21, 

2025

Deadline to Complete Fact Discovery and File 

Motions to Compel Discovery

March 3, 2025 February 28, 

2025

Serve Disclosures for Expert Witnesses by the Party 

with the Burden of Proof

February 25, 2025 Comply with P.R. 3-7 

(Opinion of Counsel Defenses)

February 4, 2025 *Claim Construction Hearing - 9:00 a.m. in 

Marshall, Texas before Judge Roy Payne

January 21, 2025 *Comply with P.R. 4-5(d) 

(Joint Claim Construction Chart)

January 14, 2025 January 16, 

2025

*Comply with P.R. 4-5(c) 

(Reply Claim Construction Brief)

January 7, 2025 January 9, 

2025

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

(Responsive Claim Construction Brief)

December 24, 

2024

December 12, 

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).

December 24, 

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.

December 10, 

2024

November 21, 

2024

Comply with P.R. 4-4 (Deadline to Complete Claim 

Construction Discovery)

December 3, 2024 File Response to Amended Pleadings

November 19, 

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.

November 12, 

2024

November 4, 

2024

Comply with P.R. 4-3 

(Joint Claim Construction Statement)

October 22, 2024 October 10, 

2024

Comply with P.R. 4-2 

(Exchange Preliminary Claim Constructions)

October 2, 2024 September 26,

2024

Comply with P.R. 4-1 

(Exchange Proposed Claim Terms)

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Court’s Schedule Proposed 

Change

Event

February 29, 2024 Comply with Standing Order Regarding SubjectMatter Eligibility Contentions6

February 29, 2024 Comply with P.R. 3-3 & 3-4 

(Invalidity Contentions)

February 8, 2024 *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.

February 1, 2024 *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.

January 25, 2024 Join Additional Parties

January 4, 2024 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

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

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

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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 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

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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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