Re timing of litigation with Amphastar. This is a cut and paste of a document jointly filed by Momenta and Amphastar, outlining the timing of the next steps. They are proposing that expert discovery end in June 2017 and that the trial being at sometime on or after December 4, 2017.
PROPOSED] STIPULATED AMENDED
SCHEDULING ORDER
In accordance with Fed. R. Civ. P. 26(f) and Local Rules 16.1 and 16.6, counsel for plaintiffs Momenta Pharmaceuticals, Inc. and Sandoz Inc. (collectively, the “Plaintiffs”), and counsel for Defendants Amphastar Pharmaceuticals, Inc., International Medication Systems, Ltd., Actavis, Inc., and Actavis Pharmaceuticals, Inc. (collectively, the “Defendants”), conferred by telephone on June 30, 2016 and thereafter to develop the discovery plan set forth below.
The parties have reached agreement on most of the proposed scheduling order dates, however, disagree on the scope and content of supplemental fact discovery, (1)(a) and (b) below. The parties have presented their respective proposals below and will be prepared to present their positions at the July 6, 2016 Status Conference if requested by the Court. The parties agree on the remaining portions of the Scheduling Order including sections (2) through (4).
1. Supplemental Fact Discovery:
Plaintiffs’ Proposal:
(a) Defendants shall be permitted to serve Amended Non-Infringement Contentions on August 12, 2016. Defendants’ amendments shall be limited to addressing the different reference standard used by the DBB test. See Order, at 7 (“the DBB test uses a different reference standard but is otherwise the same as the two 15-25% procedures identified in the initial set of infringement contentions”).
(b) Supplemental fact discovery will close on January 13, 2017. Supplemental fact discovery will be limited to supplemental document productions and any necessary depositions and/or discovery motion practice on the following subjects since the close of fact discovery on July 26, 2012: (i) damages (production by both parties); (ii) Amphastar’s use of the allegedly infringing procedures (production by Amphastar).
Defendants’ Proposal:
(a) In light of the Court’s Order granting Plaintiffs’ Renewed Motion For Leave to Amend Its Infringement Contentions [Document No. 658] and Pursuant to Local Rule 16.6 and Paragraph 2(d) of the Second Corrected Scheduling Order and Discovery Plan [Docket No. 139], Defendants shall serve their Amended Invalidity and Non-Infringement Contentions on October 6, 2016.
(b) Supplemental fact discovery will close on January 13, 2017. Supplemental fact discovery will be limited to supplemental document productions and any necessary depositions and/or discovery motion practice on the following subjects since the close of fact discovery on July 26, 2012: (i) damages; (ii) Amphastar’s use of the allegedly infringing procedures; and (iii) the parties’ Amended Contentions.
2. Expert Discovery:
(a) On March 3, 2017, the parties shall exchange expert reports on issues as to which that party bears the burden of proof at trial. The parties shall exchange rebuttal expert reports on April 7, 2017. To the extent an underlying issue is raised on which the party submitting the rebuttal expert report ultimately bears the burden of proof at trial (including secondary considerations of non-obviousness, for example), the other party may file any sur-rebuttal expert report, limited to that issue, on April 28, 2017.
(b) Expert depositions shall be completed, and expert discovery shall close on June 2, 2017.
3. Summary Judgment:
(a) All dispositive motions shall be filed by June 30, 2017.
(b) All oppositions to dispositive motions shall be filed by July 28, 2017.
(c) All replies concerning dispositive motions shall be filed by August 18, 2017.
4. Trial
(a) A Pretrial Conference shall be held at the Court’s convenience at a date on or after October 16, 2017.
(b) The trial in this case shall be held at the Court’s convenience on a date to begin on or after December 4, 2017.
