IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

DAO HEALTH,

 Plaintiff,

v.

CHIARO TECHNOLOGY LIMITED,

 Defendant.

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CIVIL ACTION NO. 2:23-CV-00289-JRG-RSP

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 notice of the Court:

Deadline Description

March 17, 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

10 days before 

Jury Selection

*Plaintiff to disclose final election of Asserted Claims.

February 18,

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.2

1 Chiaro notes that this case shares the same trial date as Willow Innovations, Inc. v. Chiaro Tech., 

Ltd., Case No. 2:23-cv-229. Realizing thatsome cases go away prior to trial, Chiaro is not presently 

making a request to continue the trial date in this case, but reserves the right to do so should both 

cases remain on the same trial docket as they proceed.

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

Advance of Voir Dire.

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Deadline Description

February 11,

2025

*Pretrial Conference — 9:00 a.m. in Marshall, Texas

before Judge Roy Payne

February 3, 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.

February 3, 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 27, 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.

January 21, 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 21, 2025 Serve Objections to Rebuttal Pretrial Disclosures

January 13, 2025 Serve Objections to Pretrial Disclosures; and Serve Rebuttal Pretrial 

Disclosures

December 30,

2024

Serve Pretrial Disclosures (Witness List, Deposition Designations, and 

Exhibit List) by the Party with the Burden of Proof

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Deadline Description

December 23,

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.3 Motions for Summary Judgment shall comply 

with Local Rule CV- 56.

December 9,

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.

December 9,

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.

December 2,

2024

Deadline to Complete Expert Discovery

November 18,

2024

Serve Disclosures for Rebuttal Expert Witnesses

October 28, 2024 Deadline to Complete Fact Discovery and File Motions to Compel 

Discovery

October 28, 2024 Serve Disclosures for Expert Witnesses by the Party with the Burden 

of Proof

3 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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Deadline Description

October 16, 2024 Comply with P.R. 3-7 (Opinion of Counsel Defenses)

14 Days After 

Court’s Issuance of 

Claim Construction 

Order

Submit Joint Notice Indicating Whether the Case Should Be 

Referred for Mediation

September 25,

2024

*Claim Construction Hearing — 9:00 a.m. in Marshall, Texas before 

Judge Roy Payne

September 11,

2024

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

September 4,

2024

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

August 28, 2024 Comply with P.R. 4-5(b) (Responsive Claim Construction 

Brief)

August 14, 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).

August 14, 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 31, 2024 Comply with P.R. 4-4 (Deadline to Complete Claim Construction 

Discovery)

July 24, 2024 File Response to Amended Pleadings

July 10, 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.

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Deadline Description

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

June 12, 2024 Comply with P.R. 4-2 (Exchange Preliminary Claim Constructions)

May 22, 2024 Comply with P.R. 4-1 (Exchange Proposed Claim Terms)

November 24,

2023

Comply with Standing Order Regarding Subject-Matter Eligibility 

Contentions4

November 24,

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

September 28,

2023

Comply with P.R. 3-1 & 3-2 (Infringement Contentions)

(*) indicates a deadline that cannot be changed without showing good cause. Good cause is 

not shown merely by indicating that the parties agree that the deadline should be changed.

4 http://www.txed.uscourts.govisitesklefaultifilesijudgeFiles/EDTX%20Standing%200rder%20

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

YU5P]

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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 Daubed

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 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 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

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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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