Judge Edward J. Davila — United States District Court, Northern District of California

Standing Orders — Inline Excerpts

The parties are required to submit chambers copies of pleadings (complaints, answers, cross-complaints, etc.) and briefing and supporting materials for dispositive motions.  The printed copies shall be marked “Chambers Copy – Do Not File” and shall be clearly marked with the case number and name of the assigned judge.  Chambers copies shall be mailed or delivered to the Clerk’s Office.

When all or a portion of a filing has been sealed, the parties shall submit only the unredacted version of that filing.  Chambers copies of unredacted documents shall clearly indicate the portions that are subject to sealing orders.

Whenever possible, the spine of a binder containing chambers copies should not exceed three inches in width, even if this limitation results in the use of multiple binders.  Documents should be printed on both sides of each sheet of paper.

Delivery Address

Robert F. Peckham Federal Building & United States Courthouse Office of the Clerk 280 South 1st Street San Jose, CA 95113

Judge Davila Standing Order for Civil Cases

[Source: https://cand.uscourts.gov/sites/default/files/standing-orders/Updated-EJD-Civil-Standing-Order-Aug-2022.pdf]

Judge Edward J. Davila Standing Order for Civil Cases

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DISTRICT JUDGE EDWARD J. DAVILA

STANDING ORDER FOR CIVIL CASES

I. APPLICATION OF STANDING ORDER

Unless otherwise indicated by the Court, this Standing Order applies to all categories of civil cases assigned to Judge Edward J. Davila. Parties and counsel shall comply with all aspects of this Standing Order, the Federal Rules of Civil Procedure, the Civil Local Rules, and all General Orders of the Northern District of California.

All motions filed after September 1, 2022, must conform to this Order. Failure to comply with any rule or standing order may be grounds for the imposition of sanctions when appropriate.

II. COMMUNICATION WITH THE COURT

Parties and counsel may contact Judge Davila’s Courtroom Deputy, Cheré Robinson, at (408) 535-5356 or ejdcrd@cand.uscourts.gov with any inquiries regarding scheduling or any other matter.

Parties and counsel shall not engage in any ex parte communication with Judge Davila or his chambers staff by telephone, facsimile, e-mail or any other means unless such contact has been authorized in advance.

Judge Davila does not review or respond to letters or letter briefs providing case information or seeking relief from the Court even if the letter is filed on the docket.
All requests requiring the Court to take action shall be made either by Stipulation and Proposed Order or by appropriate motion filed pursuant to the Civil Local Rules.

III. AMENDED COMPLAINTS

All amended complaints shall attach as an exhibit a red-line document showing the changes made to the previously filed complaint.

Judge Edward J. Davila Standing Order for Civil Cases

IV. CIVIL HEARINGS AND TRIALS

A. Motions

1. Civil Motions are heard on Thursdays at 9:00 a.m. by reservation only. Parties and counsel may reserve a hearing date by contacting Judge Davila’s Courtroom Deputy, Cheré Robinson, at ejdcrd@cand.uscourts.gov.

2. Motions must be filed and noticed within 14 calendar days of reserving a hearing date with Judge Davila’s Courtroom Deputy. Failure to timely file any motion will result in the expiration of the hearing reservation without further notice to the parties.

3. Absent good cause, the briefing schedule for motions shall allow at least 14 days between the final filing and the hearing date.

4. All substantive motions, oppositions and replies must comply with the General Requirements described in Civil Local Rule 3-4 and the page limitations described in Civil Local Rules 7-2 and 7-3 unless permission has been obtained from the Court in advance of filing. Footnotes shall be in no less than 12-point type and shall be double-spaced. Motions for Summary Judgment, Partial Summary Judgment, or Summary Adjudication must also comply with the requirements described in Section V of this Standing Order.

5. Any demonstratives or presentations to be used at a hearing must be exchanged with opposing counsel and submitted to the Court at least 48 hours before the hearing. Parties shall provide electronic copies of the demonstratives or presentations to Judge Davila’s Courtroom Deputy, Cheré Robinson, at ejdcrd@cand.uscourts.gov.

6. Proposed orders are not necessary for most substantive motions, such as motions for summary judgment and motions to dismiss. The parties should only file proposed orders in connection with administrative motions, ex parte applications, and motions that ask the Court to order specific injunctive relief (e.g., a motion for a preliminary injunction or an application for a temporary restraining order) or to make factual findings (e.g., a motion to approve a class settlement or a motion for attorneys’ fees). All proposed orders should be sent in Microsoft Word format to ejdpo@cand.uscourts.gov.

7. Judge Davila does not issue tentative rulings on upcoming matters. Any matters that are taken under submission shall remain submitted until further order of the Court.

Judge Edward J. Davila Standing Order for Civil Cases

B. Case Management Conferences

Civil Case Management Conferences are heard on Thursdays at 10:00 a.m. The parties shall file a Joint Case Management Conference Statement at least 10 days prior to the Case Management Conference unless the filing of separate statements is authorized by Civil Local Rule 16-9(a). All joint statements must comply with the “Standing Order for All Judges of the Northern District of California – Contents of Joint Case Management Statement” and Civil Local Rule 16-9. Failure to timely file a Joint Case Management Conference Statement may result in the dismissal of an action pursuant to Federal Rule of Civil Procedure 41(b).

C. Trial Setting Conferences

1. Trial Setting Conferences are heard on Thursdays at 11:00 a.m. Civil actions will be scheduled for a Trial Setting Conference approximately 30 days before the close of fact discovery or on another date selected by the Court. The purpose of the Trial Setting Conference is to determine the parties’ readiness for trial and schedule final pretrial and trial dates and deadlines.

2. Joint Trial Setting Conference Statement: No later than 10 days before the Trial Setting Conference, the parties shall file a Joint Trial Setting Conference Statement, not to exceed 10 pages in length, containing the following information:

 Jurisdiction: A short statement explaining the basis for the Court’s subject matter jurisdiction over plaintiff’s claims and defendant’s counterclaims.

 Substance of the Action: A brief description of the parties, a recitation of the facts and a statement of the principal factual issues in dispute, as well as a description of the relief sought.

 Legal Issues: A brief statement, without extended legal argument, of the disputed points of law, including reference to specific statutes and decisions.

 Motions: All prior and pending motions, the current status thereof, and any anticipated motions.

 Discovery: The status of discovery. If discovery has not been completed, the scope of any anticipated further discovery, and proposed modifications to the discovery plan, and a realistic estimate of when discovery will be complete.

Judge Edward J. Davila Standing Order for Civil Cases

 Settlement and ADR: A description of all ADR efforts to date and whether further ADR efforts should be pursued prior to trial.

 Bifurcation and Separate Trial of Issues: A statement addressing whether bifurcation or a separate trial of specific issues is appropriate or desired.

 Trial: A brief statement describing each party’s readiness for trial, whether the case will be tried before a jury or to the Court, and a realistic estimate of the length of the trial.

 Scheduling: Any proposed modifications to the Case Management Schedule, as well as proposed dates for the Final Pretrial Conference and Trial.

 Other Matters: Such other matters that may facilitate the just, speedy and inexpensive disposition of the matter.

D. Final Pretrial Conferences

1. Final Pretrial Conferences are heard on Thursdays at 11:00 a.m. No later than 21 days before the Final Pretrial Conference, lead counsel who will try the case shall meet and confer with respect to:

 Settlement of the case;

 The preparation of the Joint Final Pretrial Conference Statement;

 Preparation and exchange of pretrial materials to be served and lodged; and

 Clarifying and narrowing of the contested issues and disputes for trial.

2. Joint Final Pretrial Conference Statement: No later than 14 days before the Final Pretrial Conference, the parties shall file and serve a Joint Final Pretrial Conference Statement containing the following information:

 Substance of the Action: A brief description of the parties and the claims and defenses that remain to be decided with reference to the operative pleadings that raise the claims and defenses.

 Relief Sought: A detailed description of all relief claimed, particularly itemizing all elements of damages claimed as well as witnesses, documents, or other evidentiary material to be presented concerning the amount of damages.

Judge Edward J. Davila Standing Order for Civil Cases

 Undisputed Facts: A concise statement of all relevant facts to which the parties will stipulate for incorporation into the trial record without the necessity of supporting testimony or exhibits, as well as which facts can be presented at trial upon an agreed statement.

 Disputed Factual Issues: A concise list of the issues of facts that are contested and remain to be determined at trial.

 Disputed Legal Issues: A brief statement, without extended legal argument, of the disputed points of law, including reference to specific statutes and decisions.

 Trial Stipulations: A statement of the proposed stipulations or agreements that will expedite the presentation of evidence.

 Further Discovery or Motions: A statement describing any remaining discovery or any motion or other matters that must be resolved prior to trial, including any pending motions in limine. See § IV.D.6.

 Disputed Evidentiary Issues: A concise statement of each disputed evidentiary issue, even if a motion in limine will not be filed on that issue, including reference to specific statutes and decisions.

 Trial Estimate: An updated statement of the total amount of days/hours needed for the trial.

 Other Matters: Such other matters that may facilitate the just, speedy and inexpensive disposition of the matter.

3. Joint Witness List: No later than 14 days before the Final Pretrial Conference, the parties shall file a Joint Witness List which contains a list of witnesses likely to be called at trial, other than solely for impeachment or rebuttal, together with a brief statement following each name describing the substance of the testimony to be given.

No party shall be permitted to call any witness in its case-in-chief, without leave of Court for good cause shown, if that witness is not disclosed on the Joint Witness List.

4. Joint Exhibit List: No later than 14 days before the Final Pretrial Conference, the parties shall exchange copies of all exhibits, summaries, and diagrams to be used at trial other than solely for impeachment or rebuttal and shall file a Joint Exhibit List which contains a list of all documents and other items to be offered as exhibits at trial, other than solely for impeachment or rebuttal, along with a brief statement for each describing its substance or purpose and the identity of the

Judge Edward J. Davila Standing Order for Civil Cases

sponsoring witness. This information should be organized in the form of a chart with plaintiff’s exhibits labeled with numerals 1-1000 and a defendant’s exhibits labeled with numerals 1001-2000.

No party shall be permitted to offer any exhibit, without leave of Court for good cause shown, if such exhibit is not disclosed on the Joint Exhibit List unless the exhibit is offered solely for impeachment or rebuttal.

5. Trial Exhibits: No later than 7 days before the commencement of trial, unless otherwise ordered, the parties shall deliver three sets of all pre-marked exhibits organized in three-ring binders to Judge Davila’s Courtroom Deputy.

6. Motions in Limine: No later than 21 days before the Final Pretrial Conference, unless otherwise ordered, the parties shall file and serve any motions in limine.
   Oppositions to motions in limine shall be filed and served no later than 14 days before the Final Pretrial Conference. Replies shall not be filed.

Each motion in limine should be separate and address a single topic. Motions in limine and oppositions to motions in limine shall contain no more than 7 pages of briefing.

7. Deposition and Discovery Designations: No later than 14 days before the Final Pretrial Conference, unless otherwise ordered, the parties shall file and serve any excerpts of deposition testimony or other discovery to be offered at trial, other than solely for impeachment or rebuttal.

Any objections to the use of designated experts and any counter-designations or deposition testimony shall be filed and served no later than 10 days prior to the commencement of trial.

8. Jury Materials: No later than 10 days before the Final Pretrial Conference, unless otherwise ordered, the parties shall jointly file and serve:

 Proposed jury voir dire questions;

 Proposed jury instructions;

 Proposed jury verdict forms; and

 A short neutral statement of the case which the Court can read to prospective jurors.

The Court will ordinarily give the standard preliminary and closing jury instructions contained in the Model Jury Instructions of the Ninth Circuit prior to opening statements and after closing arguments.

Judge Edward J. Davila Standing Order for Civil Cases

For substantive, case-specific instructions, the parties shall meet and confer regarding an agreed set of jury instructions using the Model Jury Instructions of the Ninth Circuit where appropriate. In the event the parties are unable to agree to the language of a particular instruction, the objecting party shall submit a written objection or an alternative proposed instruction placed in sequence following the disputed instruction.

Sets of proposed jury instructions shall be submitted both on paper and in Microsoft Word format to Judge Davila’s Courtroom Deputy at ejdcrd@cand.uscourts.gov.

9. Proposed Findings of Fact and Conclusions of Law: In any case to be tried without a jury, each party shall file and serve proposed Findings of Fact and Conclusions of Law no later than 10 days before the Final Pretrial Conference.

The findings of fact shall set forth in simple separately-numbered declarative sentences all factual contentions relied upon by the party in support of its claims or defenses and shall be free from pejorative language and argument.
Conclusions of law shall be supported by appropriate citation to legal authority.

Proposed Findings of Fact and Conclusions of Law shall be submitted both on paper and in Microsoft Word format to Judge Davila’s Courtroom Deputy at ejdcrd@cand.uscourts.gov.

E. Trials

Trial proceedings are typically conducted on Tuesdays, Wednesdays, and Fridays from 9:00 a.m. to 4:30 p.m., with a break for lunch. The trial schedule may be adjusted and additional sessions may be added at the discretion of the Court.

F. Settlement and Continuances

1. Notice of Settlement: The parties shall immediately notify the Court of the settlement of any action by filing a Notice of Settlement which provides an estimate of when the parties expect the action will be finally resolved through stipulated dismissal or otherwise. All parties subject to the settlement or their attorneys shall sign the Notice of Settlement.

For settlements that occur after the Final Pretrial Conference and prior to the commencement of trial, the parties shall immediately file a Notice of Settlement and e-mail a copy of the notice to Judge Davila’s Courtroom Deputy at ejdcrd@cand.uscourts.gov. Jury costs may be assessed for failure to timely file a Notice of Settlement.

Judge Edward J. Davila Standing Order for Civil Cases

2. Continuances: Continuances are disfavored. Any request to continue a motion hearing date must be made in accordance with Civil Local Rules 6-2 or 6-3. Any request to continue a scheduled trial date must be made in accordance with Civil Local Rule 40-1. Jury costs may be assessed for failure to proceed with a scheduled trial.

G. Telephonic Appearances

The Court encourages in-person appearances for Law and Motion and Case Management/Pretrial Conferences. However, the Court will consider requests to appear telephonically or via Zoom on a case-by-case basis. Parties wishing to appear by telephone or via Zoom shall file and serve an Administrative Request to Appear Telephonically or via Zoom and Proposed Order at least one week prior to the scheduled hearing date.

Absent compelling circumstances, the Court will not grant a request to appear telephonically for parties or counsel who reside or have an office located within any of the Bay Area counties (Alameda, Contra Costa, Marin, Napa, San Francisco, San Mateo, Santa Clara, and Sonoma) or those other counties covered by the San Jose Division (Monterey, San Benito, and Santa Cruz). In addition, the Court will not generally grant a request by the moving party on a motion.

If a request to appear telephonically is granted, the party granted remote appearance must contact the Courtroom Deputy for specific instructions on appearing remotely.
To ensure the quality of the record, the parties should avoid the use of mobile phones, speakerphones, public telephone booths, or phones in other public places.

H. Opportunities for Junior Lawyers

The Court strongly encourages parties to permit less experienced lawyers to actively participate in the proceedings. In the Joint Case Management Conference Statement, any law firm with more than 30 lawyers nationwide must submit a specific plan for how it intends, in the case, to provide opportunities to junior lawyers (six years or fewer years out of law school) to argue motions in court, to take depositions, and to examine witnesses at trial. Specific junior lawyers must be identified.

Parties may indicate in their motion papers if they intend to have a junior lawyer argue the motion and request a hearing for that purpose.

Judge Edward J. Davila Standing Order for Civil Cases

V. MOTIONS FOR SUMMARY JUDGMENT, PARTIAL SUMMARY JUDGMENT OR SUMMARY ADJUDICATION

A. Limitation and Format

1. One Motion per Party: Unless otherwise permitted by the Court, only one Motion for Summary Judgment, Partial Summary Judgment or Summary Adjudication may be filed by each party.

2. Format: All Motions for Summary Judgment, Partial Summary Judgment or Summary Adjudication must comply with the requirements of this Standing Order in addition to any requirements or limitations described in the Federal Rules of Civil Procedure and Civil Local Rules. Any non-compliant motion may be summarily terminated by the Court.

B. Separate Statement

1. Moving Separate Statement: Any party moving for summary judgment, partial summary judgment or summary adjudication must include a separate, short and concise statement identifying each claim or defense to which the moving party contends there is no genuine issue to be tried.

For each claim, defense, or part thereof, the Moving Separate Statement must (a) identify the relevant elements or issues, (b) list the asserted material facts establishing those elements or issues, and (c) cite to record evidence demonstrating that the asserted material facts are undisputed (e.g., deposition testimony, declaration or discovery response). Upon filing, the moving party shall provide the Moving Separate Statement to all other parties in an electronic, word-processing format for ease of response thereto.

Judge Edward J. Davila Standing Order for Civil Cases

The Moving Separate Statement shall be no more than 15 pages and must be organized in the form of a chart as shown in the following example:

Claim or Defense Moving Party’s Undisputed Facts/Supporting Evidence Opposing Party’s Response/Supporting Evidence Claim 3 Breach of Contract

1. Plaintiff did not perform under the contract Fact 1. Defendant issued a homeowner’s insurance policy to Plaintiff.

Jones Decl. ¶¶ 4-5 and Ex. A (policy).

Fact 2. Plaintiff failed to pay premiums required by the policy.

Jones Decl. ¶ 6.

2. Defendant did not breach the contract Fact 3. The policy expressly excludes coverage for loss resulting from theft.

Jones Decl. ¶¶ 9-10 and Ex. A (policy).

Punitive Damages

1. Plaintiff cannot establish that Defendant acted with oppression, fraud, or malice Fact 4. Defendant timely investigated Plaintiff’s insurance claim.

Jones Decl. ¶¶ 18-20.

2. Responsive Separate Statement: The papers opposing a Motion for Summary Judgment, Partial Summary Judgment or Summary Adjudication must include one Responsive Separate Statement which (a) incorporates the Moving Separate Statement, (b) indicates whether each of the facts listed in the Moving Separate Statement is disputed or undisputed, and (c) identifies any additional material facts the party contends will establish a genuine issue to be tried. If the opposing party contends that a fact is in dispute, the opposing party must cite to evidence in the record establishing the dispute.

Judge Edward J. Davila Standing Order for Civil Cases

The Responsive Separate Statement shall add no more than 5 pages to the Moving Separate Statement and must be organized in the form of a chart as shown in the following example:

Claim or Defense Moving Party’s Undisputed Facts/Supporting Evidence Opposing Party’s Response/Supporting Evidence Claim 3 Breach of Contract

1. Plaintiff did not perform under the contract Fact 1. Defendant issued a homeowner’s insurance policy to Plaintiff.

Jones Decl. ¶¶ 4-5 and Ex. A (policy). Undisputed.

Fact 2. Plaintiff failed to pay premiums required by the policy.

Jones Decl. ¶ 6. Disputed. Plaintiff timely paid the premiums required by the policy.

Smith Dep. 22:4-23:19. Additional Facts

Defendant has failed to record Plaintiff’s timely premium payments on 2 prior occasions.

Smith Dep. 72:8-14. 2. Defendant did not breach the contract. Fact 3. The policy expressly excludes coverage for loss resulting from theft.

Jones Decl. ¶¶ 9-10 and Ex. A (policy). Disputed. The policy does not exclude coverage for loss resulting from theft.

Jones Decl. Ex. A (policy). Punitive Damages

1. Plaintiff cannot establish that Defendant acted with oppression, fraud, or malice Fact 4. Defendant timely investigated Plaintiff’s insurance claim.

Jones Decl. ¶¶ 18-20. Disputed. Defendant waited more than 4 months before investigating Plaintiff’s claim.

Smith Dep. 79:15-80:4.

3. Reply Separate Statement: The moving party may file a Reply Separate Statement which incorporates and responds to the Responsive Separate Statement in the same manner described above.

4. Deemed Admitted Unless Controverted: Each numbered fact in the Moving Separate Statement will be deemed to be admitted for purposes of the motion unless specifically controverted by the opposing party, so long as the moving party meets its burden of proof under Federal Rule of Civil Procedure 56.

5. Attestation: Each separate statement must be signed by counsel or unrepresented party who has reviewed the document and attests as follows:

I attest that the evidence cited herein fairly and accurately supports or disputes the facts as asserted.

Judge Edward J. Davila Standing Order for Civil Cases

C. Cross-Motion Requirement

Unless otherwise ordered, the parties must meet and confer in advance of the deadline for dispositive motions to determine if they will file cross-motions for summary judgment. If so, only four briefs will be allowed: (1) an opening brief by the plaintiff side; (2) an opening/opposition brief by the defense side; (3) an opposition/reply brief by the plaintiff side; and (4) reply brief by the defense side.
The parties may agree to reverse the order, and have the defense file its opening brief first, without order of the Court. Before the first brief is filed, the parties may submit a stipulation and proposed order setting a briefing schedule for the cross- motions. The fourth brief must be filed at least 14 days before the hearing date.

Any Cross-Motion for Summary Judgment, Partial Summary Judgment or Summary Adjudication shall be incorporated into the Opposition to the original like motion.
The combined Opposition/Cross-Motion shall not exceed 25 pages in length.

Any opposition to a Cross-Motion shall be incorporated into the Reply to the opposition to the original like motion. The combined Reply/Opposition shall be limited to 15 pages in length.

A Reply to the Opposition to the Cross-Motion may be filed and served not more than 7 days after the filing of the combined Reply/Opposition and shall be limited to 15 pages in length.

D. Objections to Evidence

Objections to evidence shall be contained within the objecting party’s brief and shall not be filed as a separate pleading.

VI. MOTIONS PURSUANT TO DAUBERT

Motions pursuant to Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), challenging the reliability of expert testimony may be noticed for hearing no later than the dispositive motion hearing date.

VII. MOTIONS TO SEAL

A. Compliance with Civil Local Rules and Standing Order

All Motions to Seal relating to any civil matter assigned to Judge Davila must strictly comply with Civil Local Rule 79-5 and this Standing Order. Any non-conforming Motion to Seal may be summarily terminated by the Court.

Judge Edward J. Davila Standing Order for Civil Cases

B. Requirements

1. One Motion per Pleading: A separate Motion to Seal must be filed for every pleading sought to be sealed. Omnibus Motions to Seal which seek to seal numerous pleadings shall not be filed.

2. Simultaneous Filing of Redacted Motion: When the subject of a sealing request is a motion (such as a Motion to Dismiss or Motion for Summary Judgment), the moving party must file the redacted version of the motion sought to sealed as a separate docket entry on ECF simultaneously with the Motion to Seal. This separate filing shall occur in addition to attaching the redacted version to the Motion to Seal. The moving party shall choose the “motion” event type when uploading the redacted copy to ECF and shall input the reserved hearing date for the motion sought to be sealed.

Parties shall not submit redacted versions of the documents that the parties seek to seal as chambers copies. Chambers copies of unredacted documents shall clearly indicate which portions the parties seek to seal.

VIII. CHAMBERS COPIES

The parties are required to submit chambers copies of pleadings (complaints, answers, cross-complaints, etc.) and briefing and supporting materials for dispositive motions. The printed copies shall be marked “Chambers Copy – Do Not File” and shall be clearly marked with the case number and name of the assigned judge.
Chambers copies shall be mailed or delivered to the Clerk’s Office.

When all or a portion of a filing has been sealed, the parties shall submit only the unredacted version of that filing. Chambers copies of unredacted documents shall clearly indicate the portions that are subject to sealing orders.

Whenever possible, the spine of a binder containing chambers copies should not exceed three inches in width, even if this limitation results in the use of multiple binders. Documents should be printed on both sides of each sheet of paper.

IX. UNREPRESENTED (PRO SE) LITIGANTS

Parties representing themselves are encouraged to review the information provided for pro se litigants contained on the Northern District of California website. Parties may access this information by clicking the “PRO SE LITIGANTS” link located at the top of the Court’s homepage: http://www.cand.uscourts.gov.

Judge Edward J. Davila Standing Order for Civil Cases

Legal assistance may also be available to unrepresented litigants through the Federal Pro Se Program, located in Room 2070 on the 2nd Floor of the San Jose Courthouse.
Additional information about the program is available on the Pro Se Litigants section of the Court’s website or can be obtained by calling (408) 297-1480.

IT IS SO ORDERED.

DATED: August 31, 2022

EDWARD J. DAVILA United States District Judge

Judge Davila Standing Order for Patent Cases

[Source: https://cand.uscourts.gov/sites/default/files/standing-orders/EJD_Patent-Standing-Order.pdf]

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA JUDGE EDWARD J. DAVILA STANDING ORDER FOR PATENT CASES I. Application of Standing Order Unless otherwise indicated by the Court, this Standing Order applies to all actions asserting claims for patent infringement and for declaratory judgment of non- infringement assigned to Judge Edward J. Davila. Parties and counsel shall comply with all aspects of this Standing Order, the Standing Order for Civil Cases, the Federal Rules of Civil Procedure, the Civil and Patent Local Rules, and all General Orders of the Northern District of California. II. Patent Disclosures Cross-references: Patent L.R. 3-1–3-6 Referral to Magistrate Judge. Any dispute regarding any party’s Patent Disclosures are referred to the assigned Magistrate Judge. Requests to amend a party’s Infringement or Invalidity Contentions are likewise referred to the assigned Magistrate Judge. III. Joint Claim Construction and Prehearing Statement Cross-reference: Patent L.R. 4-3 A. Contents. Any disputed terms, phrases, and clauses (hereinafter, for simplicity, “terms”) shall be designated as disputed; all other terms shall be presumed undisputed. For any term in dispute, the parties must agree on the identity of the term. With regard to disputed terms, the joint statement shall list each term, each party’s proposed construction, and support for each party’s construction side by side. Parties are reminded that proposed constructions should be suitable for incorporation in a jury instruction. A model statement is included as Attachment A to this Order. B. Attachments. Parties shall attach to the joint claim construction statement one copy of each patent in dispute. Parties shall also be prepared to make the complete prosecution history for each patent available to the Court upon request. IV. Claim Construction Briefing Cross-references: Patent L.R. 4-3 & 4-5 A. Scope. As an initial matter, the Court will construe only those terms designated by the parties as “most significant” pursuant to Patent L.R. 4-3(c). The claim construction briefs shall address each of those terms and only those terms. B. Enlarging the Scope. If any party genuinely believes that construing more than

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ten terms is necessary, that party may request leave to designate additional terms for construction by filing an administrative motion under Civil Local Rule
7-11(b). The requesting party must demonstrate good cause and explain why other methods of limiting the claims at issue (such as the selection of representative claims or any grouping of claims by issues presented) would be ineffective. If all parties agree that more than ten terms should be construed, the motion should be made jointly. Any such request, whether unilateral or joint, must be made on or before the deadline for filing the Joint Claim Construction and Prehearing Statement. If good cause is shown, the Court may agree to construe all terms or schedule a second claim construction proceeding on the excess terms. C. Format. The opening and responsive briefs shall not exceed 25 pages; the reply brief shall not exceed 15 pages. D. Timing. Briefing deadlines are usually set forth in a Patent Scheduling Order. Otherwise, the default schedule established by Patent L.R. 4-5 applies. E. Evolving Claim Construction Positions. The Court encourages the continuing negotiation of mutually agreeable constructions even during the briefing process. However, parties are discouraged from proposing new constructions for the first time in reply briefs or other filings which do not afford the opposing party an opportunity to respond. If it becomes necessary for a party to propose a different construction in its brief than that found in the joint claim construction statement, that party must clearly set forth the new construction and explain the basis for the change. Concurrently with the filing of the reply briefs, the parties shall file an amended joint claim construction statement if there has been any change in the parties’ claim construction positions. V. Tutorial and Claim Construction Hearing Cross-reference: Patent L.R. 4-6 A. Scheduling. By default, the Court will schedule a tutorial and claim construction hearing for a half day (i.e., three hours) on a Tuesday, Wednesday, or Thursday. The Court may allocate more time for the tutorial and hearing upon a showing of good cause made by stipulation or administrative motion. B. Prehearing Conference. Generally, the Court does not hold prehearing conferences. The parties may raise any prehearing issues on the day of the hearing. Many administrative and prehearing matters may also be resolved by contacting the Courtroom Deputy, Adriana Kratzmann, at (408) 535-5356, or, if necessary, by administrative motion. C. Tutorial. The purpose of the tutorial is for the parties to inform and educate the Court about the technology involved in the case. The parties will have one hour— 30 minutes per side—for the tutorial. Unless the parties agree otherwise, the patent holder makes the first presentation. Demonstrations and visual aids are encouraged. Any experts present are encouraged to participate. No argument or cross-examination will be permitted, but the Court may pose questions to parties

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and witnesses. Statements made at the tutorial may not be used against a party in other aspects of the litigation. The Court encourages the parties to make a joint presentation and will entertain requests for additional time in those circumstances. D. Claim Construction. The parties will have two hours—one hour per side—for the claim construction hearing. The hearing will proceed term-by-term with the patentee arguing first on odd-numbered terms. The parties’ arguments should focus on intrinsic evidence, i.e., the patent itself and the prosecution history. Live testimony at claim construction is disfavored; it will be allowed only by court order upon an administrative motion explaining why the testimony would be useful. Such a motion must be filed at least 14 days before the hearing. E. Demonstratives. Demonstrative exhibits and visual aids are permissible at the tutorial and the claim construction hearing as long as they are based on information contained in papers previously filed. No later than one week prior to the tutorial and/or claim construction hearing, counsel shall exchange copies of any exhibits and visual aids, and shall submit to the Court three bound copies of the exhibits and visual aids. VI. Subsequent Case Management Conference Cross-references: Civil L.R. 16-9 & 16-10; Standing Order for All Judges of the Northern District of California re Contents of Joint Case Management Statement A. At the time the claim construction ruling issues, the Court will also set a further case management conference. In a joint case management statement to be filed no later than 7 days before the conference, the parties must address the following topics: 1) whether either party wishes to certify the claim construction ruling for immediate appeal to the Federal Circuit; 2) the filing of dispositive motions, and timing of those motions; 3) if willful infringement has been asserted, whether the party accused of infringement wishes to rely on the advice-of-counsel defense. If so, the parties should be prepared to address proposals for resolving any attorney– client privilege issues that arise, and whether the parties believe bifurcation of the trial into liability and damages phases would be appropriate; 4) anticipated post-claim construction discovery; 5) any other pretrial matters; 6) the progress of settlement discussions, if any; and 7) any changes or updates to any of the information requested in the Standing Order for All Judges of the Northern District of California re Contents of Joint Case Management Statement that have arisen since the filing of the

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parties’ previous case management statement. The Court will review the statement to determine whether the conference is necessary, and will enter any appropriate orders. VII. Dispositive Motions A. Application. To the extent it contains requirements that differ from any other standing order applicable to civil cases, this section controls in cases asserting claims for patent infringement or for declaratory judgment of non-infringement. B. Summary Judgment. Before filing a summary judgment motion on issues of infringement or invalidity, a party must meet and confer with opposing counsel to prepare one joint statement of undisputed facts. The statement should be filed concurrently with the motion. Separate statements are not permitted. Once a hearing date for the motion has been set and the briefing is closed, the moving party shall compile a three ring binder to be lodged with the Court containing (1) the statement of undisputed facts, (2) the motion and any supporting memorandum of law, (3) the opposition memorandum, (4) any reply memorandum, and (5) any exhibits in support or opposition to the motion, which shall be clearly labeled. At the beginning of each binder the moving party shall include jointly prepared charts signed by all parties’ counsel formatted as shown in Attachment B to this order. Each statement in the chart shall be supported by appropriate citations to the motion papers and or exhibits. VIII. Miscellaneous Opportunities for Junior Lawyers. The Court strongly encourages parties to permit less experienced lawyers to have an important role in hearings and at trial. IT IS SO ORDERED. Dated: May 3, 2019

EDWARD J. DAVILA United States District Judge

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ATTACHMENT A Model Joint Claim Construction Statement Claim Language (Disputed Terms in Bold) Plaintiff’s Proposed Construction and Evidence in Support Defendant’s Proposed Construction and Evidence in Support

1. A method for counting wild ducks, comprising the steps of . . . (’123 Patent, Claims 1 &

[or] ducks Found in: ’123 Patent, Claims 1, 2 ’456 Patent, Claims 1, 8 PROPOSED CONSTRUCTION: birds that quack INTRINSIC EVIDENCE: ’123 Patent col. 5:8 (“distinctive honking”); Response to Office Action, 4/15/09, at 3 (“This patent is distinguished from the prior art in that the quacking of the bird is featured”). DICTIONARY/TREATISE DEFINITIONS: Webster’s Dictionary (“duck: bird that quacks”); Field Guide (“bird call: quack”); EXTRINSIC EVIDENCE: McDonald Dep. at 12:10 (“I’d say the quacking makes it a duck”); ’456 Patent at col. 9:4; Donald Decl. ¶ 6. PROPOSED CONSTRUCTION: birds that swim INTRINSIC EVIDENCE: ’123 Patent col 5:10 (“ducks may be found on or near bodies of water”); Response to Office Action, 4/15/09, at 4 (“water fowl are particularly amenable to being counted by this method”). DICTIONARY/TREATISE DEFINITIONS: Random House Dictionary (“An aquatic bird”); Field Guide (same) EXTRINSIC EVIDENCE: Marx Dep. at xx:xx (“like a duck to water”); ’456 Patent at col. 1:38; Daffy Decl. ¶ 7.

(Or any other substantially similar format that permits the Court to compare terms side by side.) NOT: Claim Language (Disputed Terms in Bold) Plaintiff’s Proposed Construction and Evidence in Support Defendant’s Proposed Construction and Evidence in Support

1. A method for counting wild ducks, comprising the steps of . . . ducks . . . birds that quack . . . wild ducks . . . birds that quack and have never lived in captivity . . .

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ATTACHMENT B Chart 1 Summary of Infringement Issues

Patent Claim Elements Stipulated Construction or Court Construction Accused Product(s) Defense(s) Asserted ’000 Patent, Claim 1 An apparatus comprising: apparatus means “device” Riverside Model 2 —

1. a handle handle means “a part held by the human hand” Riverside Model 2 part no. 80015 the product lacks a handle . . . . . . . . . . . .

Chart 2 Summary of Invalidity Issues

Patent Claim Basis of Challenge Summary of Argument in Support Summary of Argument in Opposition Comments ’123 Patent, Claim 1 Lack of disclosure of best mode The specification states that the inventor was aware of a specific undisclosed method (See ’123 Patent col. 3:5-10.) The reference is to a different invention This issue is controlled by the Court’s construction of the term “wild ducks”

(Or other substantially similar formats that give a structured overview of the issues presented.)

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