2 

in this action or to indemnify or reimburse for payments made to satisfy the 

judgment; 

(f) any settlement agreements relevant to the subject matter of this action; and 

(g) any statement of any party to the litigation. 

2. Disclosure of Expert Testimony.1 A party must disclose to the other parties the 

identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 

703 or 705, and: 

(a) if the witness is one retained or specially employed to provide expert testimony in 

the case or one whose duties as the party’s employee regularly involve giving expert 

testimony, provide the disclosures required by Federal Rule of Civil Procedure 

26(a)(2)(B) and Local Rule CV-26; and 

(b) for all other such witnesses, provide the disclosure required by Federal Rule of Civil 

Procedure 26(a)(2)(C). 

3. Additional Disclosures. Without awaiting a discovery request,2 each party will 

make the following disclosures to every other party: 

(a) provide the disclosures required by the Patent Rules for the Eastern District of 

Texas with the following modifications to P.R. 3-1 and P.R. 3-3: 

i. If a party claiming patent infringement asserts that a claim element is a 

software limitation, the party need not comply with P.R. 3-1 for those claim 

elements until 30 days after source code for each Accused Instrumentality 

is produced by the opposing party. Thereafter, the party claiming patent 

1

 All expert reports should be written such that the report is organized with discrete 

paragraph numbers. 

2

 The Court anticipates that this disclosure requirement will obviate the need for requests 

for production. 
 3 

infringement shall identify, on an element-by-element basis for each 

asserted claim, what source code of each Accused Instrumentality allegedly 

satisfies the software limitations of the asserted claim elements. 

ii. If a party claiming patent infringement exercises the provisions of 

Paragraph 3(a)(i) of this Discovery Order, the party opposing a claim of 

patent infringement may serve, not later than 30 days after receipt of a 

Paragraph 3(a)(i) disclosure, supplemental “Invalidity Contentions” that 

amend only those claim elements identified as software limitations by the 

party claiming patent infringement. 

(b) produce or permit the inspection of all documents, electronically stored 

information, and tangible things in the possession, custody, or control of the party 

that are relevant to the pleaded claims or defenses involved in this action, except to 

the extent these disclosures are affected by the time limits set forth in the Patent 

Rules for the Eastern District of Texas; and 

(c) provide a complete computation of any category of damages claimed by any party 

to the action, and produce or permit the inspection of documents or other 

evidentiary material on which such computation is based, including materials 

bearing on the nature and extent of injuries suffered, except that the disclosure of 

the computation of damages may be deferred until the time for Expert Disclosures 

if a party will rely on a damages expert. 

4. Protective Orders. The Court will enter the parties’ Agreed Protective Order. 

5. Discovery Limitations. The discovery in this cause is limited to the disclosures 

described in Paragraphs 1-3 together with: 
 4 

(a) Interrogatories. Plaintiff may serve a maximum of 40 interrogatories on 

Defendants. Defendants collectively may serve a maximum of 40 interrogatories 

on Plaintiff. 

(b) Requests for Admission. Plaintiff may serve up to 40 requests for admission on 

Defendants. Defendants collectively may serve up to 40 requests for admission on 

Plaintiff. Requests that a party admit to the authenticity of documents or things 

shall not count against the total requests for admission; such authentication 

requests for admission must be clearly labeled as relating to authentication and the 

deadline to respond shall be fourteen (14) days; the parties are required to meet 

and confer in good faith prior to serving any such authentication request for 

admission, and specifically to consider a stipulation regarding authentication as an 

alternative to use of such requests for admission. 

(c) Fact Depositions 

i. Plaintiff shall be permitted up to 70 hours of total deposition time for 

Defendants witnesses. Defendants collectively shall be permitted up to 

seventy (70) hours of total deposition time for Plaintiff’s witnesses.3

 

ii. The parties may take up to fifty (50) hours of third-party deposition 

testimony. Parties can take unlimited depositions on written questions of 

custodians of business records for third parties. 

iii. Depositions may be conducted virtually, through remote video, at the 

request of the deposing party. In-person depositions will be conducted at a 

3

 For clarity, the deposition of any person that is an employee or affiliate of a named party will be 

considered a party deposition. 
 5 

location that is convenient for the witnesses, or as otherwise agreed upon 

by the parties. The parties shall meet and confer in good faith to schedule 

depositions under Fed. R. Civ. P. 30(b)(6) at a time and place that is 

convenient for the deponent and the parties. For foreign party witnesses, 

the parties agree to forego Hauge Convention procedures and agree to 

confer in good faith on the manner (in person or remote) and time for the 

deposition of each witness. For purposes of determining the hour-allotment 

for foreign-language-translated depositions, the parties agree that any 

deposition that requires translation from a foreign language into English 

will count as one-half of the hours used on the record (e.g., a foreignlanguage translated deposition that takes four hours on the record will count 

for two hours). 

iv. Except as otherwise set forth in this Order or ordered by the Court or agreed 

to by the parties, no witness shall be subject to more than one deposition 

(including by separate parties) in his or her personal capacity (i.e., not as a 

designee of an entity under Fed. R. Civ. P. 30(b)(6)). No more than seven 

(7) hours of fact deposition may be taken of one person in one day without 

the consent of the deponent. 

v. Each party reserves the right to seek an adjustment of these time limits based 

upon changes to the scope of discovery, or the addition or dismissal of any 

parties, in this case. These provisions, further, may be amended by 

agreement of the parties. The parties shall make best efforts to coordinate 

depositions to reduce redundancy and inconvenience to the parties. 
 6 

vi. To facilitate efficient deposition scheduling, the parties further agree to: 

• Exchange their list of 30(b)(6) designees that includes both their 

witness designations and topics for which that witness is 

designated no later than four weeks after being served with a 

30(b)(6) notice, subject to good faith modifications; 

• Exchange deposition dates for any noticed deposition no later 

than three weeks after being served with a deposition notice and 

further (1) provide at least two deposition dates at least one week 

apart for any 30(b)(1) or 30(b)(6) deponent, which shall be for 

dates at least two weeks before the close of fact discovery; and 

• Produce all documents that the party in good faith understands 

to be relevant to any deponent’s deposition at least 7 business 

days prior to that deponent’s scheduled deposition. 

(d) Expert Depositions. 

i. Subject to subparagraph (ii) below, each party4 may depose each expert 

that serves an opinion against that party for seven (7) hours per report. 

ii. Notwithstanding subsection (i) above: if an expert serves a report that 

addresses more than four patents, then the opposing party may depose the 

expert for an additional one hour per additional patent addressed (e.g., if 

an expert serves a report addressing 6 patents, then the party against whom 

the report is served may take up to nine (9) hours of deposition time). 

4

 “Party,” in the case of Defendants, means the Defendants, collectively, in this action. 
 7 

iii. No more than seven (7) hours of deposition may be taken of one person in 

one day without the consent of the deponent. 

Any party may later move to modify these limitations for good cause. 

6. Privileged Information. There is no duty to disclose privileged documents or 

information. However, the parties are directed to meet and confer concerning privileged 

documents or information after the Status Conference. By the deadline set in the Docket Control 

Order, the parties shall exchange privilege logs identifying the documents or information and the 

basis for any disputed claim of privilege in a manner that, without revealing information itself 

privileged or protected, will enable the other parties to assess the applicability of the privilege or 

protection. Any party may move the Court for an order compelling the production of any 

documents or information identified on any other party’s privilege log. If such a motion is made, 

the party asserting privilege shall respond to the motion within the time period provided by Local 

Rule CV-7. The party asserting privilege shall then file with the Court within 30 days of the filing 

of the motion to compel any proof in the form of declarations or affidavits to support their 

assertions of privilege, along with the documents over which privilege is asserted for in camera

inspection. However, if the party asserting privilege seeks an in camera review by the Court, such 

party shall first obtain leave from the Court prior to delivery of documents to the Court. 

7. Signature. The disclosures required by this Order shall be made in writing and 

signed by the party or counsel and shall constitute a certification that, to the best of the signer’s 

knowledge, information and belief, such disclosure is complete and correct as of the time it is 

made. If feasible, counsel shall meet to exchange disclosures required by this Order; otherwise, 

such disclosures shall be served as provided by Federal Rule of Civil Procedure 5. The parties 
 8 

shall promptly file a notice with the Court that the disclosures required under this Order have taken 

place. 

8. Duty to Supplement. After disclosure is made pursuant to this Order, each party 

is under a duty to supplement or correct its disclosures immediately if the party obtains 

information on the basis of which it knows that the information disclosed was either incomplete 

or incorrect when made, or is no longer complete or true. 

9. Discovery Disputes. 

(a) Except in cases involving claims of privilege, any party entitled to receive 

disclosures (“Requesting Party”) may, after the deadline for making disclosures, 

serve upon a party required to make disclosures (“Responding Party”) a written 

statement, in letter form or otherwise, of any reason why the Requesting Party 

believes that the Responding Party’s disclosures are insufficient. The written 

statement shall list, by category, the items the Requesting Party contends should be 

produced. The parties shall promptly meet and confer. If the parties are unable to 

resolve their dispute, then the Responding Party shall, within 14 days after service 

of the written statement upon it, serve upon the Requesting Party a written 

statement, in letter form or otherwise, which identifies (1) the requested items that 

will be disclosed, if any, and (2) the reasons why any requested items will not be 

disclosed. The Requesting Party may thereafter file a motion to compel. 

(b) An opposed discovery related motion, or any response thereto, shall not exceed 7 

pages. Attachments to a discovery related motion, or a response thereto, shall not 

exceed 5 pages. No further briefing is allowed absent a request or order from the 

Court. 
 9 

(c) Prior to filing any discovery related motion, the parties must fully comply with the 

substantive and procedural conference requirements of Local Rule CV-7(h) and (i). 

Within 72 hours of the Court setting any discovery motion for a hearing, each 

party’s lead attorney (see Local Rule CV-11(a)) and local counsel shall meet and 

confer in person or by telephone, without the involvement or participation of other 

attorneys, in an effort to resolve the dispute without Court intervention. 

(d) Counsel shall promptly notify the Court of the results of that meeting by filing a 

joint report of no more than two pages. Unless excused by the Court, each party’s 

lead attorney shall attend any discovery motion hearing set by the Court (though 

the lead attorney is not required to argue the motion). 

(e) Any change to a party’s lead attorney designation must be accomplished by motion 

and order. 

(f) Counsel are directed to contact the chambers of the undersigned for any “hot-line” 

disputes before contacting the Discovery Hotline provided by Local Rule CV26(e). If the undersigned is not available, the parties shall proceed in accordance 

with Local Rule CV-26(e). 

10. No Excuses. A party is not excused from the requirements of this Discovery Order 

because it has not fully completed its investigation of the case, or because it challenges the 

sufficiency of another party’s disclosures, or because another party has not made its disclosures. 

Absent court order to the contrary, a party is not excused from disclosure because there are pending 

motions to dismiss, to remand or to change venue. 

11. Filings. Only upon request from chambers shall counsel submit to the court 

courtesy copies of any filings. 
 10 

12. Proposed Stipulations by the Parties Regarding Discovery. The parties stipulate 

and agree as follows:

(a) Service by Electronic Mail. The parties will make every effort to serve all 

documents electronically, by e-mail or through ECF. The parties will serve any 

documents filed under seal within two hours or by midnight on the date of filing, 

whichever is earlier. A party may serve all documents by e-mail on another party 

by sending the documents to the email group address designated by a party, or if 

no such group is designated, to email address for all counsel of record for the party.5

Notwithstanding Local Rule CV-5(a)(3)(C)-(D), documents emailed by 11:59 p.m. 

Central Time shall be deemed served on the day they were actually sent for 

purposes of calculating a response date to the document served.

(b) Expert Disclosures. The parties agree that the protections provided in FRCP 

26(b)(4)(B) and (C) will apply equally to expert declarations as they do to expert 

reports, including both drafts of declarations and communications related to 

declarations. Pursuant to FRCP 26(b)(4), draft expert reports, notes, outlines, and 

any other writings leading up to an expert’s final report(s) are exempt from 

discovery. In addition, all communications with and all materials generated by an 

expert with respect to his or her work on this action are exempt from discovery 

unless considered by the expert in forming his or her opinions. If an expert produces 

a report, the expert must produce his or her final report and all materials which the 

expert relied on, to the extent they have not already been produced. No discovery 

5

 Service via FTP site with emailed link and (if applicable) password information or other 

appropriate electronic means shall be deemed to comport with the requirements of electronic 

service. 
 11 

can be taken from any consulting expert except to the extent that the consulting 

expert has provided information, opinions, or other materials to a testifying expert, 

who then relies upon such information, opinions, or other materials in forming his 

or her final report, declaration, trial or deposition testimony, or any opinion in this 

case. Materials, communications, and other information exempt from discovery 

under this Paragraph shall be treated as attorney work product for the purposes of 

this litigation but need not be logged on a privilege log.

(c) Non-Waiver of Privilege. Inadvertent production of materials covered by the 

attorney-client privilege, work-product protection, common interest privilege, or a 

similar exemption from discoverability is not a waiver in the pending case or any 

other federal or state proceeding. For example, the mere production of privilege or 

work-product protected documents in this case as part of a mass production is not 

itself a waiver in this case or any other federal or state proceeding. A producing 

party may assert privilege or work product protection over any produced documents 

after becoming aware of the production by promptly (after learning of the 

inadvertent production) notifying the receiving party of the assertion of privilege 

or protection in writing. For any document produced for which notice is given that 

it intends to assert privilege or work-product protection at the producing party’s 

request, the producing party must immediately supply a privilege log supporting 

the claim of privilege with respect to the documents at issue, thereby enabling the 

receiving party to dispute the assertion of privilege in accordance with Paragraph 6 

of this Order. Within three (3) business days, the receiving party shall promptly 

return or destroy the produced materials and destroy any copies and/or work 
 12 

product created from such material. However, if the claim of privilege is disputed 

by the receiving party, the receiving party may continue to retain the disputed 

materials until the dispute is resolved pursuant to Fed. R. Civ. Proc. 26(b)(5)(B). 

(d) Privilege Log. The parties agree that, except as provided in Paragraph 12(c) above, 

the parties shall not be required to log (1) any privileged document created on or 

after March 4, 2022; or (2) any communication including outside counsel of record 

in this case and that relate to the subject matter of this case.

(e) Third-Party Discovery—A party who receives documents and things from a third 

party pursuant to a subpoena will reproduce those documents and things to the other 

parties within seven days. Where reproduction of documents within this time frame 

is not possible, the party who received the documents and things will provide 

prompt notice to the other party and will work in good faith to timely resolve the 

issue. 

(f) Authenticity—All bates-stamped documents produced and created by a party are 

presumed authentic under Federal Rule of Evidence 901. 

13. Standing Orders. The parties and counsel are charged with notice of and are required to 

fully comply with each of the Standing Orders of this Court. Such are posted on the 

Court’s website at http://www.txed.uscourts.gov/?q=court-annexed-mediation-plan. The 

substance of some such orders may be included expressly within this Discovery Order, 

while others (including the Court’s Standing Order Regarding Protection of Proprietary 

and/or Confidential Information to Be Presented to the Court During Motion and Trial 

Practice) are incorporated herein by reference. All such standing orders shall be binding 
 13 

on the parties and counsel, regardless of whether they are expressly included herein or 

made a part hereof by reference. 

____________________________________

RODNEY GILSTRAP

UNITED STATES DISTRICT JUDGE So ORDERED and SIGNED this 12th day of April, 2024.