Case 1:23-cv-01245-JFM Document 60 Filed 06/04/24 Page 1 of 14 PageID #: 1048
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`ZAXCOM, INC.,
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`Plaintiff,
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`v.
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`RODE MICROPHONES, LLC AND
`FREEDMAN ELECTRONICS PTY LTD.,
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`Defendants.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`SCHEDULING ORDER
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`C.A. No. 23-1245-JFM
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`This 4th day of June, 2024, the Court having conducted an initial Rule 16(b) scheduling
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`conference pursuant to Local Rule 16.1(b), and the parties having determined after discussion
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`that the matter cannot be resolved at this juncture by settlement, voluntary mediation, or binding
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`arbitration;
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`IT IS ORDERED that:
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`1.
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`Relevant Deadlines and Dates. All relevant deadlines and dates established by
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`this Order are set forth in the chart attached as Exhibit A.
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`2.
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`Rule 26(a)(1) Initial Disclosures. The parties have made their disclosures
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`pursuant to Federal Rule of Civil Procedure 26(a)(1) and Judge Murphy’s Court Order (DI 44).
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`3.
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`Joinder of Other Parties and Amendment of Pleadings.
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`All motions to join other parties, and to amend or supplement the pleadings, shall be filed on or
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`before November 2, 2024.
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`4.
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`Discovery.
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`a.
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`Fact Discovery began on January 30, 2024, for Rode and Zaxcom and
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`May 10, 2024, for Freedman.
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`1
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`RØDE Exhibit 1058
`RØDE Microphones, LLC, et. al v. Zaxcom, Inc.
`Page 1 of 14
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`

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`Case 1:23-cv-01245-JFM Document 60 Filed 06/04/24 Page 2 of 14 PageID #: 1049
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`b.
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`Discovery Cut Off.
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`All discovery in this case shall be initiated so that it will be completed on or before June 21,
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`2025.
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`c.
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` Document Production.
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`Document production shall be substantially complete by December 13, 2024.
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`d.
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`Requests for Admission.
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`A maximum of 60 requests for admission are permitted for each side.
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`e.
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`Interrogatories.
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`A maximum of fifty (50) interrogatories, including contention interrogatories, are permitted for
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`each side.
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`f.
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`Depositions.
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`i.
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`Limitation on Hours for Deposition Discovery.
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`Absent agreement or leave of court, each side is limited to a total of seventy (70) hours of
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`taking fact witness testimony by deposition upon oral examination, exclusive of experts’
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`testimony. In the case of depositions requiring an interpreter, every two hours shall count
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`as one. In addition, each expert that submits a report subject to Fed. R. Civ. P. 26(a)(2)
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`shall be subject to a single deposition of up to seven (7) hours per report.
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`ii.
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`Location of Depositions. Any party or representative (officer,
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`director, or managing agent) of a party filing a civil action in this district court must ordinarily be
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`required, upon request, to submit to a deposition at a place designated within this district.
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`Exceptions to this general rule may be made by order of the Court or by agreement of the parties.
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`A defendant who becomes a cross-claimant or third-party plaintiff shall be considered as having
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`2
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`RØDE Exhibit 1058
`RØDE Microphones, LLC, et. al v. Zaxcom, Inc.
`Page 2 of 14
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`Case 1:23-cv-01245-JFM Document 60 Filed 06/04/24 Page 3 of 14 PageID #: 1050
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`filed an action in this Court for the purpose of this provision.
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`g.
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`Disclosures and Contentions.
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`Incorporation of the Initial Discovery Timetable Set Forth in the Delaware Default Standard for
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`Discovery. We incorporate the timetable for initial patent disclosures set forth in Paragraph 4 of
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`the Delaware Default Standard for Discovery. 1 Paragraph 4 of the Delaware Default Standard
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`for Discovery provides the following terms:
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`i. Within 30 days after the Rule 16 Conference and for each
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`Defendant, Plaintiff shall specifically identify the accused products2 and the asserted patent(s)
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`they allegedly infringe and produce the file history for each asserted patent.
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`ii. Within 30 days after receipt of the above, each Defendant shall
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`produce to Plaintiff the core technical documents related to the accused product(s), including but
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`not limited to operation manuals, product literature, schematics, and specifications.
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`iii. Within 30 days after receipt of the above, Plaintiff shall produce to
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`each Defendant an initial claim chart relating each accused product to the asserted claims each
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`product allegedly infringes.
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`iv. Within 30 days after receipt of the above, each defendant shall
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`produce to the plaintiff its invalidity contentions of each asserted claim, as well as the related
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`invalidating references (e.g., publications, manuals, and patents).
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`v.
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`Absent a showing of good cause, follow-up discovery shall be
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`limited to a term of six (6) years before the filing of the complaint, except that discovery related
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`to asserted prior art or the conception and reduction to practice of the invitations claimed in any
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`1 As these disclosures are “initial,” each party shall be permitted to supplement.
`2 For ease of reference, the word “product” encompasses accused methods and systems as well.
`3
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`RØDE Exhibit 1058
`RØDE Microphones, LLC, et. al v. Zaxcom, Inc.
`Page 3 of 14
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`Case 1:23-cv-01245-JFM Document 60 Filed 06/04/24 Page 4 of 14 PageID #: 1051
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`patent-in-suit shall not be so limited.
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`h.
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`Discovery Matters and Disputes Relating to Protective Orders. Should
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`counsel find they are unable to resolve a discovery matter or a dispute relating to a protective
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`order, discovery disputes and disputes relating to protective orders will be resolved by motion
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`practice, consistent with Delaware Rule 7.1.1, 7.1.2, and Judge Murphy’s policies and
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`procedures. The court may order a shortened response time and immediate videoconference
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`hearing.
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`i. Miscellaneous Discovery Matters.
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`i.
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`The parties should set forth a statement identifying any other
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`pending or completed litigation including IPRs involving one or more of the asserted patents.
`Plaintiff should advise whether it expects to institute any further litigation in this or other
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`Districts within the next year. Defendant should advise whether it expects to file one or more
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`IPRs and, if so, when.3
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`ii.
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`The parties, if they think it necessary, should set times in the
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`3 It does not affect this scheduling order but for the sake of memorializing the parties’ positions on this point:
`Zaxcom’s Position: The asserted U.S. Patent No. 7,929,902 (“the ’902 patent”), U.S. Patent No. 8,385,814
`(“the ’814 patent”), and U.S. Patent No. 9,336,307 (“the ’307 patent”)(collectively the “Previously Litigated
`Patents”) were the subject of the completed litigation in Case No. 2:17-cv-02840-KSH-CLW in the United
`States District Court for the District of New Jersey, Case No. 1:2017-cv-03408 in the United States District
`Court for the Eastern District of New York, and Case No. 1:19-cv-0109-RB-KBM in the United States District
`Court for the District of New Mexico. The Previously Litigated Patents were also involved in the completed
`Inter Partes Review Nos. IPR2018-00972, IPR2018-01129, and IRP2018-01130. The substitution of the claims
`of the IPRs was appealed to the Federal Circuit, which affirmed the substitution. Zaxcom is considering filing
`an International Trade Commission complaint under Section 337 of the Tariff Act of 1930. Under the Delaware
`Default Standard for discovery that Zaxcom proposes to use in this case, Zaxcom will disclose the asserted
`claims to the RØDE parties almost four months prior to the statutory deadline to file IPRs found in 35 U.S.C. §
`315(b).
`The RØDE Parties’ Position: The RØDE parties are considering filing IPR petitions within the statutory
`timeframe but, to do so, need to know which patent claims are alleged to be infringed. To date, Zaxcom has
`refused to identify which of the 200+ claims of the six asserted patents they allege to be infringed by the RØDE
`parties. The RØDE parties do not agree that Zaxcom’s proposed schedule will provide sufficient notice
`regarding the claims that are asserted before the statutory deadline.
`4
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`RØDE Exhibit 1058
`RØDE Microphones, LLC, et. al v. Zaxcom, Inc.
`Page 4 of 14
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`Case 1:23-cv-01245-JFM Document 60 Filed 06/04/24 Page 5 of 14 PageID #: 1052
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`schedule for reducing the number of asserted claims and asserted prior art used for
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`anticipation and obviousness combinations. The usual points where the Court will consider
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`such limits are before claim construction and after a ruling on claim construction. There are
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`obvious limits flowing from page limits, time limits, and the court’s resources that will
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`govern claim construction. And we reserve judgment on a maximum number of asserted
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`claims for trial. If at any time it becomes apparent that intervention is necessary, we may act
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`to narrow the case on our own accord.
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`5.
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`Application to Court for Protective Order. Should counsel find it will be
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`necessary to apply to the Court for a protective order specifying terms and conditions for the
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`disclosure of confidential information, counsel should confer and attempt to reach an agreement
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`on a proposed form of order and submit it to the Court within ten days from the date of this
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`Order. Should counsel be unable to reach an agreement on a proposed form of order, counsel
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`must follow the provisions of Paragraph 4(h) above.
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`Any proposed protective order must include the following paragraph:
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`Other Proceedings. By entering this order and limiting the
`disclosure of information in this case, the Court does not intend to
`preclude another court from finding that information may be
`relevant and subject to disclosure in another case. Any person or
`party subject to this order who becomes subject to a motion to
`disclose another party’s information designated as confidential
`pursuant to this order shall promptly notify that party of the motion
`so that the party may have an opportunity to appear and be heard
`on whether that information should be disclosed.
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`Papers Filed Under Seal. When filing papers under seal, a redacted version of any
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`6.
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`sealed document shall be filed electronically within seven days of the filing of the sealed
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`document.
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`5
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`RØDE Exhibit 1058
`RØDE Microphones, LLC, et. al v. Zaxcom, Inc.
`Page 5 of 14
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`Case 1:23-cv-01245-JFM Document 60 Filed 06/04/24 Page 6 of 14 PageID #: 1053
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`7.
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`Claim Construction Issue Identification. On or before November 16, 2024, the
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`parties shall exchange a list of those claim term(s)/phrase(s) that they believe need construction
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`and their proposed claim construction of those term(s)/phrase(s) 4. This document will not be
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`filed with the Court. Subsequent to exchanging that list, the parties will meet and confer to
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`prepare a Joint Claim Construction Chart to be filed no later than December 6, 2024. The Joint
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`Claim Construction Chart, in Word format, shall be e-mailed simultaneously with filing to
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`murphy_chambers@paed.uscourts.gov. The Joint Claim Construction Chart should identify for
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`the Court the term(s)/phrase(s) of the claim(s) in issue, and should include each party’s proposed
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`construction of the disputed claim language with citation(s) only to the intrinsic evidence in
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`support of their respective proposed constructions. The Joint Claim Construction Chart should
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`include an explanation of why resolution of the dispute makes a difference. A copy of the
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`patent(s) in issue as well as those portions of the intrinsic record relied upon shall be submitted
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`with the Joint Claim Construction Chart. In this joint submission, the parties shall not provide
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`argument.
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`8.
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`Claim Construction Briefing5.
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`Zaxcom shall serve, but not file, its opening brief, not to exceed 7,500 words, on January
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`4 If a party proposes a construction of a term to be its “plain and ordinary” meaning, the party
`must explain what that meaning is. If a term is arguably a means-plus-function term, and a party
`does not propose a function and a structure, it is waiving any right to propose a function and a
`structure at a later time.
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`5 Each brief shall include a certification of word count. Pictures, Figures copied from the patent,
`and other illustrations do not count against the word limit. Plaintiff should include with its
`opening brief one or more representative claims with the disputed terms italicized. Should
`Defendant want to add additional representative claims, Defendant may do so. The
`representative claims and the agreed-upon claim constructions do not count against the word
`limits.
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`6
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`RØDE Exhibit 1058
`RØDE Microphones, LLC, et. al v. Zaxcom, Inc.
`Page 6 of 14
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`Case 1:23-cv-01245-JFM Document 60 Filed 06/04/24 Page 7 of 14 PageID #: 1054
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`15, 2025. Defendant shall serve, but not file, its answering brief, not to exceed 10,000 words, on
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`February 12, 2025. Plaintiff shall serve, but not file, its reply brief, not to exceed 6,000 words, on
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`March 5, 2025. Defendant shall serve, but not file its sur-reply brief, not to exceed 3,000 words, on
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`March 26, 2025. No later than April 16, 2025, the parties shall file a Joint Claim Construction
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`Brief. The parties shall copy and paste their unfiled briefs into one brief, with their positions on
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`each claim term in sequential order, in substantially the form below. The parties need not include
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`any general summaries of the law relating to claim construction.
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`The parties shall prepare and file a joint claim construction brief with the following
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`contents:
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`JOINT CLAIM CONSTRUCTION BRIEF
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`Representative Claims
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`Agreed-upon Constructions
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`Disputed Constructions
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`[TERM 1]6
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`Plaintiff’s Opening Position
`Defendant’s Answering Position
`Plaintiff’s Reply Position
`Defendant’s Sur-Reply Position
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`[TERM 2]
`Plaintiff’s Opening Position
`1.
`2.
`Defendant’s Answering Position
`3.
`Plaintiff’s Reply Position
`4.
`Defendant’s Sur-Reply Position
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`I.
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`II.
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`III.
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`A.
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`1.
`2.
`3.
`4.
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`B.
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`6 For each term in dispute, there should be a table or the like setting forth the term in dispute, the
`parties’ competing constructions, and why resolution of the dispute matters. The table does not
`count against the word limits.
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`7
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`RØDE Exhibit 1058
`RØDE Microphones, LLC, et. al v. Zaxcom, Inc.
`Page 7 of 14
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`

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`Case 1:23-cv-01245-JFM Document 60 Filed 06/04/24 Page 8 of 14 PageID #: 1055
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`Etc. The parties need not include any general summaries of the law relating to claim
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`construction. If there are any materials that would be submitted in an appendix, the parties shall
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`submit them in a Joint Appendix.
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`9.
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`Hearing on Claim Construction.
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`Beginning at 10 a.m. on May 14, 2025, in Courtroom 3B in the Philadelphia courthouse
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`(601 Market Street), the Court will hear argument on claim construction. Absent prior
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`approval of the Court (which, if it is sought, must be done so by joint letter submission no later
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`than the date on which answering claim construction briefs are due), the parties shall not
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`present testimony at the argument, and the argument shall not exceed a total of three hours.
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`When the Joint Claim Construction Brief is filed, the parties shall simultaneously file a motion
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`requesting the above- scheduled claim construction hearing, state that the briefing is complete,
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`and state how much total time the parties are requesting that the Court should allow for the
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`argument.
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`10.
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`Reliance On Opinion of Counsel
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`Within 60 days of the Court issuing its claim construction opinion in this matter,
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`Defendants must inform Plaintiff if they intend to rely on an opinion of counsel as a defense to
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`Plaintiff’s willfulness claim. If Defendants elect to rely on an opinion of counsel, the opinion
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`and all documents subject to production as a result of the waiver of privilege must be produced.
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`The parties are to work cooperatively to schedule any necessary depositions thereafter.
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`11.
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`Disclosure of Expert Testimony.
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`a.
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`Expert Reports. For the party who has the initial burden of proof on the
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`subject matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on or before
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`8
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`RØDE Exhibit 1058
`RØDE Microphones, LLC, et. al v. Zaxcom, Inc.
`Page 8 of 14
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`Case 1:23-cv-01245-JFM Document 60 Filed 06/04/24 Page 9 of 14 PageID #: 1056
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`September 10, 2025. The supplemental disclosure to contradict or rebut evidence on the same
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`matter identified by another party is due on or before October 8, 2025. Reply expert reports
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`from the party with the initial burden of proof are due on or before October 29, 2025. No other
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`expert reports will be permitted without either the consent of all parties or leave of the Court.
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`If any party believes that an expert report does not comply with the rules relating
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`to timely disclosure or exceeds the scope of what is permitted in that expert report, the
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`complaining party must notify the offending party within one week of the submission of the
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`expert report. The parties are expected to promptly try to resolve any such disputes, and, when
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`they cannot reasonably be resolved, use the Court’s Discovery Dispute Procedure or the
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`complaint will be waived.
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`Along with the submissions of the expert reports, the parties shall advise of the
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`dates and times of their experts’ availability for deposition. Depositions of experts shall be
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`completed on or before November 26, 2025.
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`b.
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`Objections to Expert Testimony. To the extent any objection to expert
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`testimony is made pursuant to the principles announced in Daubert v. Merrell Dow Pharm., Inc.,
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`509 U.S. 579 (1993), as incorporated in Federal Rule of Evidence 702, it shall be made by
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`motion no later than the deadline for dispositive motions set forth herein, unless otherwise
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`ordered by the Court.
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`12.
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`Case Dispositive Motions. All case dispositive motions shall be served and filed
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`on or before January 28, 2026. No case dispositive motion under Rule 56 may be filed more
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`than ten days before the above date without leave of the Court. Absent an order of the Court
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`upon a showing of good cause, each side is limited to one forty-page opening brief, one forty-
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`page answering brief, and one twenty-page reply brief for all of its Daubert and case dispositive
`9
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`RØDE Exhibit 1058
`RØDE Microphones, LLC, et. al v. Zaxcom, Inc.
`Page 9 of 14
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`

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`Case 1:23-cv-01245-JFM Document 60 Filed 06/04/24 Page 10 of 14 PageID #: 1057
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`motions (including motions for partial summary judgment).
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`13.
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`Applications by Motion. Except as otherwise specified herein, any application to
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`the Court shall be by written motion. Any non-dispositive motion should contain the statement
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`required by Local Rule 7.1.1.
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`14.
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`Pretrial Conference. The date for a Rule 16(e) final pretrial conference shall be
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`set at a future date. The parties shall file a joint proposed final pretrial order in compliance
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`with Local Rule 16.3(c) no later than 5 p.m. on the fourth business day before the date of the
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`final pretrial conference. Unless otherwise ordered by the Court, the parties shall comply with
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`the timeframes set forth in Local Rule 16.3(d) for the preparation of the proposed joint final
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`pretrial order.
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`15. Motions in Limine. Motions in limine shall be separately filed, with each motion
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`containing all the argument described below in one filing for each motion. Any supporting
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`documents in connection with a motion in limine shall be filed in one filing separate from the
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`motion in limine. Each party shall be limited to three in limine requests, unless otherwise
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`permitted by the Court. The in limine request and any response shall contain the authorities
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`relied upon; each in limine request may be supported by a maximum of three pages of argument
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`and may be opposed by a maximum of three pages of argument, and the party making the in
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`limine request may add a maximum of one additional page in reply in support of its request. If
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`more than one party is supporting or opposing an in limine request, such support or opposition
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`shall be combined in a single three-page submission (and, if the moving party, a single one-page
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`reply). No separate briefing shall be submitted on in limine requests, unless otherwise permitted
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`by the Court.
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`16.
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` Jury Instructions, Voir Dire, and Special Verdict Forms. Where a case is to be
`10
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`RØDE Exhibit 1058
`RØDE Microphones, LLC, et. al v. Zaxcom, Inc.
`Page 10 of 14
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`

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`Case 1:23-cv-01245-JFM Document 60 Filed 06/04/24 Page 11 of 14 PageID #: 1058
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`tried to a jury, pursuant to Local Rules 47.1(a)(2) and 51.1, the parties should file (i) proposed
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`voir dire, (ii) preliminary jury instructions, (iii) final jury instructions, and (iv) special verdict
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`forms no later than 6 p.m. on the fourth business day before the date of the final pretrial
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`conference. Areas of dispute shall be identified as narrowly as possible and in a manner that
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`makes it readily apparent what the dispute is. The parties shall submit simultaneously with filing
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`each of the foregoing four documents in Word format to murphy_chambers@paed.uscourts.gov.
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`17. Trial. This matter shall be scheduled for trial at a future date. Trial days shall
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`begin at 9:30 a.m. Until the case is submitted to the jury for deliberations, the jury will be
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`excused each day at 5:00 p.m. The trial will be timed, as counsel will be allocated a total number
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`of hours in which to present their respective cases.
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`18.
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`Discovery Referral.
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`Discovery issues in this matter will, except in very unusual circumstances, be addressed by
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`the district judge.
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`19. Mediation (for use in non-ANDA patent cases).
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`The Parties are required to engage in good faith in an in-person mediation. They are to hire a
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`jointly agreed-upon mediator. The timing of mediation efforts is left to the discretion of the
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`Parties, but the mediation efforts need to be conducted in advance of the pretrial conference. The
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`Parties are required to submit a joint statement no later than one week before the pretrial
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`conference. The joint statement is to include the identification of the mediator, the lead counsel
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`for each party at the mediation, the length of the mediation, and the certification of the lead
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`mediation counsel that they have engaged in the efforts in good faith. If the Parties anticipate any
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`further efforts by the mediator at the time of the submission, they should so advise. The joint
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`statement should not disclose the substance of any offers, counteroffers, or other negotiations.
`11
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`RØDE Exhibit 1058
`RØDE Microphones, LLC, et. al v. Zaxcom, Inc.
`Page 11 of 14
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`

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`Case 1:23-cv-01245-JFM Document 60 Filed 06/04/24 Page 12 of 14 PageID #: 1059
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`20. Pro Hac Vice Motions. The parties shall follow Delaware Local Rule 83.5.
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`21. Extensions of Time. The parties shall follow Delaware Local Rule 16.4. For all
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`requests not implicated by Delaware Local Rule 16.4, the parties may file requests for extensions
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`of time at any time prior to the deadline.
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`22. Statement Required to be Filed with Non-dispositive Motions. The parties shall
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`follow Delaware Local Rule 7.1.1, which requires that parties certify that a reasonable effort has
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`been made to reach agreement prior to filing any non-dispositive motion.
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`UNITED STATES DISTRICT JUDGE
`JOHN F. MURPHY
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`12
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`RØDE Exhibit 1058
`RØDE Microphones, LLC, et. al v. Zaxcom, Inc.
`Page 12 of 14
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`

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`Case 1:23-cv-01245-JFM Document 60 Filed 06/04/24 Page 13 of 14 PageID #: 1060
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`Exhibit A: Chart of All Relevant Deadlines
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`
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`Event
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`Joinder of Parties and Amendment of
`Pleadings
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`Fact Discovery Begins
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`Deadlines
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`November 2, 2024
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`January 30, 2024, for Rode and Zaxcom and
`May 10, 2024, for Freedman
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`Fact Discovery Cut-off
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`June 21, 2025
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`Identification of Accused Products and
`Asserted Patents
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`June 17, 2024 (Delaware Default Standard)
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`Production of Core Technical Documents
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`July 17, 2024 (Delaware Default Standard)
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`Production of Initial Claim Chart Relating to
`Each Accused Product
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`August 16, 2024 (Delaware Default Standard)
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`Production of Invalidity Contentions
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`September 16, 2024 (Delaware Default
`Standard)
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`Exchange of Proposed Terms for Claim
`Construction
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`November 16, 2024
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`Filing of Joint Claim Construction Chart
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`December 6, 2024
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`Substantial Completion of Document
`Production
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`December 13, 2024
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`Zaxcom’s Op’g Claim Construction Br.
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`January 15, 2025
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`Defendants’ Resp. Claim Construction Br.
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`February 15, 2025
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`Zaxcom’s Reply Claim Construction Br.
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`March 5, 2025
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`Defendants’ Sur-Reply Claim Construction
`Br.
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`March 26, 2025
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`Joint Claim Construction Brief
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`April 16, 2025
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`Markman Hearing
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`Close of Fact Discovery
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`May 14, 2025, 10:00a.m, Courtroom 3B 601
`Market Street, Philadelphia
`
`June 21, 2025
`13
`
`RØDE Exhibit 1058
`RØDE Microphones, LLC, et. al v. Zaxcom, Inc.
`Page 13 of 14
`
`

`

`Case 1:23-cv-01245-JFM Document 60 Filed 06/04/24 Page 14 of 14 PageID #: 1061
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`Event
`
`Deadlines
`
`Disclosure of Reliance on Opinion of
`Counsel and Associated Document
`Production
`
`60 days after the Court issues its Claim
`Construction Order.
`
`Opening Expert Reports (by the Party with
`the Burden of Proof)
`
`September 10, 2025
`
`Responsive Expert Reports
`
`Reply Expert Reports
`
`Close of Expert Discovery
`
`October 8, 2025
`
`October 29, 2025
`
`November 26, 2025
`
`SJ/Daubert Motions (with opening briefs)
`
`January 28, 2026
`
`SJ/Daubert Opposition Briefs
`
`SJ/Daubert Reply Briefs
`
`Final Pretrial Conference
`
`Trial
`
`February 18, 2026
`
`March 4, 2026
`
`TBD
`
`TBD
`
`
`
`
`
`
`14
`
`RØDE Exhibit 1058
`RØDE Microphones, LLC, et. al v. Zaxcom, Inc.
`Page 14 of 14
`
`