New Vision Gaming & Development, Inc. v. Bally Gaming Inc., No. 2:2017cv01559 - Document 45 (D. Nev. 2018)
Court Description: ORDER Granting 41 Stipulation to Modify 21 Scheduling Order. Discovery due by 3/1/2019. Motions due by 4/1/2019. Proposed Joint Pretrial Order due by 5/1/2019. Signed by Magistrate Judge Peggy A. Leen on 7/10/2018. (Copies have been distributed pursuant to the NEF - SLD)
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New Vision Gaming & Development, Inc. v. Bally Gaming Inc. Doc. 45 Case 2:17-cv-01559-APG-PAL Document 41 Filed 06/18/18 Page 1 of 6 1 2 3 4 5 6 7 8 9 10 KARL ANDERSEN, ESQ. Nevada State Bar No. 10306 SAMUEL G. BROYLES, JR., ESQ. APC Nevada State Bar No. 5888 ANDERSEN & BROYLES, LLP 5550 Painted Mirage Road, Suite 320 Las Vegas Nevada 89149 Telephone: 702-220-4529 Facsimile: 702-834-4529 200 South Virginia Street, Suite 800 Reno, Nevada 89501 Telephone: 775-448-6169 Facsimile: 888-816-8129 sam@andersenbroyles.com karl@andersenbroyles.com Attorneys for Plaintiff, NEW VISION GAMING, INC. DISTRICT COURT CLARK COUNTY, NEVADA 11 12 13 14 NEW VISION GAMING AND DEVELOPMENT, INC., a Massachusetts corporation, 15 16 17 v. Plaintiff, BALLY GAMING INC, dba BALLY TECHNOLOGIES, a Nevada corporation, 18 19 20 Defendant. Civil Case No. 2:17-cv-01559-APG-PAL JOINT REPORT OF EARLY MEETING AND STIPULATION AND PROPOSED ORDER TO MODIFY COURT'S SCHEDULING ORDER (SPECIAL SCHEDULING REVIEW REQUESTED FOR A PATENT CASE) Pursuant to Federal Rule of Civil Procedure 26(f), Local Patent Rule 1-2, and this 21 22 Court’s Orders (ECF Nos. 21 and 25), the parties to this action, Plaintiff New Vision Gaming 23 and Development, Inc. (“New Vision”) and Defendant Bally Gaming Inc., dba Bally 24 Technologies, (“Bally”) hereby certify the parties have held their Rule 26(f) conference and 25 submit this Joint Report of Early Meeting and Stipulation respectfully requesting modification 26 of the Court’s scheduling order entered on November 21, 2017 (ECF No. 21) pursuant to 27 28 Local Patent Rule 1-3. Page 1 of 6 Dockets.Justia.com Case 2:17-cv-01559-APG-PAL Document 41 Filed 06/18/18 Page 2 of 6 I. RULE 26(f) DISCOVERY PLAN 1 2 3 In accordance with the requirements of Federal Rule of Civil Procedure 26(f)(1)-(4), Local Rule 26-1, and the Patent Local Rules, the parties submit the following: 4 A. Applicability of Patent Local Rules 5 This action involves New Vision’s claim for damages for breach of an agreement that 6 New Vision contends is a FRE License Agreement relating to certain patents, along with 7 8 9 certain counterclaims, including Bally’s request for a declaration of patent invalidity. Because this is a “civil action[] … that seek[s] a declaratory judgment that a patent … is 10 invalid,” the Patent Local Rules apply. LPR 1-2. The parties agree that applicability of the 11 Patent Local Rules will affect the proposed discovery schedule and the Court’s case schedule. 12 13 B. Proposed Modifications to the Court's Scheduling Order. Bally has filed petitions for CBM review with the PTAB on the two patents at issue in 14 15 this case. See CBM2018-00005, CBM2018-00006. Institution decisions in those proceedings 16 are expected by June 27, 2018. If the PTAB institutes review on the patents, Bally expects to 17 file a motion to stay the present litigation pursuant to § 18(b)(1) of the America Invents Act 18 (AIA), Pub L. No. 112–29, 125 Stat. 284, 329–31 (2011). For that reason, the proposed dates 19 20 21 22 below are calculated based on the expected date of the PTAB’s institution decision, rather than the date of submission of this report. The Parties submit the following proposed modifications to the Court’s scheduling 23 24 25 26 order pursuant to LPR 1-3. 1. Discovery Cut-Off: Defendant filed its Answer, Defenses, and Counterclaims on September 29, 2017. (ECF No. 7). Pursuant to the Parties’ stipulation to stay discovery, 27 28 Page 2 of 6 Case 2:17-cv-01559-APG-PAL Document 41 Filed 06/18/18 Page 3 of 6 1 2 the Parties request all fact discovery shall be completed by all parties on or before March 1, 2019, which is 270 days after the Court’s ruling on Plaintiff’s Motion to Dismiss. 3 2. 4 11, 2018. 5 Joint Protective Order: The Parties shall file a joint protective order by July 3. Rule 26(a) Initial Disclosures: July 11, 2018. 7 4. Initial Disclosure of Invalidity Contentions: July 11, 2018. 8 5. Response to Initial Invalidity Contentions and Initial Disclosure of Asserted 6 9 10 Claims: August 27, 2018. 6. Three Proposed Dates for Pre-Claim Construction Settlement Conference: 11 12 September 21, 2018, September 24, 2018, or September 26, 2018. 13 7. Motion to Amend Pleadings/Parties: December 3, 2018. 14 8. Expert Designations: December 31, 2018. 15 9. Rebuttal Expert Designations: January 30, 2019. 16 10. Interim Status Report: December 31, 2018. 11. Exchange of Proposed Terms of Construction: September 25, 2018. 12. Exchange of Preliminary Claim Construction: October 9, 2018. 13. Submit Joint Claim Construction and Prehearing Statement: October 23, 2018. 17 18 19 20 21 22 The parties shall meet and confer regarding the joint statement before submitting the joint statement. 23 24 14. Opening Claim Construction Brief by Defendant: November 13, 2018. 25 15. Response to Claim Construction Brief by Plaintiff: December 4, 2018. 26 16. Reply Claim Construction Brief by Defendant and Matter Submitted to court 27 for Hearing: December 11, 2018. 28 Page 3 of 6 Case 2:17-cv-01559-APG-PAL Document 41 Filed 06/18/18 Page 4 of 6 17. Claim Construction Tutorials, Hearing, and Order from the Court: January 8, 3 18. Dispositive Motions: April 1, 2019. 4 19. Joint Pre-trial Order: May 1, 2019. In the event dispositive motions are filed, 1 2 5 2019. the date for filing the joint order shall be suspended until 30 days after a decision on the 6 7 dispositive motions. 8 C. Discovery 9 The parties propose the following with regard to discovery: 10 11 1. Scope and subjects of Discovery Discovery may be conducted on all matters relevant to issues raised by subsequent 12 pleadings and all matters otherwise within the scope of Rule 26(b)(l) and not protected from 13 disclosure, including, for example: the alleged damages and/or restitution owed to either party 14 and Plaintiff’s licensed patents in issue in this action, including the validity of those certain 15 patents. The parties agree that discovery may include the negotiation, representations relating 16 to, execution, and performance of agreements related to the intellectual property, but dispute 17 the scope of discovery relating to those agreements. New Vision contends that discovery 18 should be limited to agreements between the parties, while Bally contends that the scope of 19 20 discovery should include any agreements related to the intellectual property at issue. The parties agree that the anticipated methods of future discovery will include: 21 22 23 (1) written discovery in the form of Interrogatories, Requests for Admissions, and Requests for Production of Documents; (2) written discovery via issuance of subpoenas to third parties; 24 and (3) oral depositions of the employees of the parties under Rule 30(b)(6), and other 25 relevant witnesses. 26 27 28 2. Supplementations Supplementations under Fed. R. Civ. P. 26(e) are due in a reasonable time after material, relevant facts are learned, or by court order. Page 4 of 6 Case 2:17-cv-01559-APG-PAL Document 41 Filed 06/18/18 Page 5 of 6 1 2 3 4 3. Protocol for Electronically-Stored Information Disclosure or discovery of electronically-stored information will be handled as follows: All electronic files are to be produced in a format that is reasonably usable by the 5 opposing party’s review platform, including that the documents must be produced 6 electronically in optical character recognition (OCR) portable document format (PDF). 7 The parties do not anticipate discovery of native files at this time, as production of 8 native files renders confidentiality designations more difficult and imposes an unnecessary 9 expense given the size and scope of this matter. Each party, however, reserves the right to 10 make a showing of good cause for the production of native files if native files are necessary to 11 perform a complete review. 12 The following metadata must be produced, to the extent it is available: Beginning 13 Bates, End Bates, and metadata sufficient to show family relationships. The parties do not 14 anticipate the production of additional metadata at this time in light of the expense and the 15 needs of this case. Each party, however, reserves the right to make a showing of good cause 16 for the production of metadata on particular documents. 17 To avoid the burden and expense of discovery, the parties agree to limit the number of 18 custodians, to limit document production by search terms or other electronically assisted 19 review techniques, and further stipulate to the procedures set forth in the Federal Circuit’s 20 21 Model Order Regarding E-Discovery, available at http://www.cafc.uscourts.gov/sites/default/files/announcements/Ediscovery_Model_Order.pdf 22 4. 23 24 Procedures for Resolving Disputes Regarding Claims of Privilege The Parties agree to use the procedures set forth in Fed. R. Civ. Proc. Rule 26(b)(5) 25 regarding any claims of privilege or protecting materials asserted as being for trial 26 preparation. The parties request that this proposed procedure be adopted within the Court’s 27 further orders. 28 Page 5 of 6 Case 2:17-cv-01559-APG-PAL Document 41 Filed 06/18/18 Page 6 of 6 IV. SETTLEMENT AND ADR 1 2 3 4 5 6 Up to this point, the parties have been unable to settle the dispute, but remain open to renewed settlement discussions to the extent productive. The parties considered consent to trial by magistrate judge and use of the Short Trial Program and do not consent to those alternate forms of case disposition. The parties certify that they met and conferred about the possibility of using 7 8 alternative dispute resolution processes and about settlement. The parties remain interested in 9 reaching an amicable resolution and would be willing to participate in a settlement 10 conference. 11 12 V. ELECTRONIC EVIDENCE The Parties intend to present evidence in electronic format to jurors for the purpose of 13 jury deliberations. 14 ANDERSEN & BROYLES, LLP. PERKINS COIE LLP /s/Samuel G. Broyles, Jr., Esq. Karl Andersen, Esq. Samuel G. Broyles Jr., Esq. 5550 Painted Mirage Road, Suite 320 Las Vegas, Nevada 89149 Attorney for Plaintiff /s/ Nathan R. Kassebaum Jessica L. Everett-Garcia, Esq. John H. Gray, Esq. Nathan R. Kassebaum, Esq. 2901 North Central Avenue Suite 2000 Phoenix, Arizona 85012 Attorney for Defendant 15 16 17 18 19 20 21 IT IS SO ORDERED. 22 23 24 UNITED STATES MAGISTRATE JUDGE Dated: July 10, 2018 25 26 27 28 Page 6 of 6
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