Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SOFTWAVE TISSUE REGENERATION Case No.: 3:25-cv-02198-AGS-VET TECHNOLOGIES, LLC, an Ohio limited 12 liability company, ORDER (1) GRANTING JOINT 13 MOTION TO AMEND CASE Plaintiff, MANAGEMENT ORDER AND (2) 14 v. ISSUING AMENDED SCHEDULING 15 ORDER DJO, LLC, a Delaware limited liability 16 company, [ECF No. 28] Defendant. 17 18 19 Before the Court is the parties’ Joint Motion to Amend Case Management Order. 20 ECF No. 28 (“Joint Motion”). Therein, the parties move to continue certain case deadlines, 21 from the exchange of Preliminary Claim Constructions to expert disclosures, by 22 approximately five weeks. ECF Nos. 28, 36. In support, the parties represent that the 23 requested extensions will resolve a timeliness dispute that arose when Defendant’s 24 Preliminary Invalidity Contentions were served 14 days after the deadline. ECF Nos. 26, 25 28, 28-1 at 2–3 (¶4), 36. This is the parties’ first request to continue pretrial deadlines. 26 Based on a review of the Joint Motion, the record, and the parties’ representations at 27 the May 26 and June 9, 2026 hearings (ECF Nos. 26, 36), and good cause appearing, the 28 Court GRANTS the Joint Motion and ISSUES the following Amended Scheduling Order: 1 I. AMENDED SCHEDULING ORDER 2 1. Case deadlines from the exchange of Preliminary Claim Constructions to 3 contradictory or rebuttal expert disclosures set forth in the Court’s Scheduling Order, dated 4 February 12, 2026, are hereby VACATED. See EFC No. 16. 5 2. On or before June 18, 2026, the parties shall exchange Preliminary Claim 6 Constructions pursuant to Patent L.R. 4.1(a) and identify extrinsic evidence as required by 7 Patent L.R. 4.1(b). 8 3. On or before June 29, 2026, the parties shall exchange Responsive Claim 9 Constructions pursuant to Patent L.R. 4.1(c) and identify extrinsic evidence as required by 10 Patent L.R. 4.1(d). 11 4. On or before July 13, 2026, parties shall complete and file a Joint Claim 12 Construction Chart, Joint Claim Construction Worksheet, and Joint Hearing Statement 13 pursuant to Patent L.R. 4.2. 14 5. The deadline for filing, as of right, “Amended Infringement Contentions” by 15 a party claiming infringement is July 13, 2026. See Patent L.R. 3.6(a). 16 6. All discovery intended for use in the Claim Construction Hearing must be 17 completed by August 10, 2026. See Patent L.R. 4.3. 18 7. The deadline for filing, as of right, “Amended Invalidity Contentions” by the 19 party opposing infringement is August 10, 2026. See Patent L.R. 3.6(b) 20 8. On or before August 24, 2026, the parties must file simultaneously their 21 Opening Claim Construction Briefs. See Patent L.R. 4.4(a). 22 9. On or before September 8, 2026, the parties must file simultaneously their 23 Responsive Claim Construction Briefs. See Patent L.R. 4.4(b). 24 10. The Claim Construction and tutorial hearing will be held October 2, 2026, at 25 10:30 a.m. before the Honorable Andrew G. Schopler. See Patent L.R. 4.5. 26 11. Not later than thirty (30) days after the filing of the Claim Construction 27 Order, any party relying upon advice of counsel as part of a patent-related claim or defense 28 for any reason must make the disclosures required by Patent L.R. 3.7. A party who does 1 not comply with the requirements of Patent L.R. 3.7 will not be permitted to rely on advice 2 of counsel for any purpose, absent a stipulation of all parties or by order of the Court, which 3 will be entered only upon showing of good cause. 4 12. A party asserting infringement must serve final amended infringement 5 contentions, within the meaning of Patent L.R. 3.6(a)(1), not later than thirty (30) days 6 after service of the Court’s Claim Construction Ruling. Patent L.R. 3.6(a) does not relieve 7 any party from its obligations under Fed. R. Civ. P. 26 to timely supplement disclosures 8 and discovery responses. 9 13. A party opposing a claim of infringement must serve final amended invalidity 10 contentions, within the meaning of Patent L.R. 3.6(b)(2), not later than fifty (50) days 11 after service of the Court’s Claim Construction ruling. Patent L.R. 3.6(b) does not relieve 12 any party from its obligations under Fed. R. Civ. P. 26 to timely supplement disclosures 13 and discovery responses. 14 14. A Mandatory Settlement Conference (“MSC”) shall be conducted by Zoom 15 video conferencing on November 4, 2026 at 9:30 a.m. before Magistrate Judge Valerie E. 16 Torres.1 17 a. The following are mandatory procedures to be followed in preparation for 18 the MSC. Absent express permission from this Court, counsel must timely comply with 19 the dates and deadlines herein. Questions regarding the MSC or the mandatory guidelines 20 set forth herein may be directed to Judge Torres’ Chambers at (619) 557-6384. 21 b. Full Settlement Authority Required. Pursuant to Patent L.R. 2.1(c)(2), 22 all parties, party representatives, including claims adjusters for insured parties, and the 23 24 25 26 1 Counsel may request the MSC be converted to an in-person appearance through a joint 27 call or email to Judge Torres’ Chambers (efile_torres@casd.uscourts.gov). Counsel 28 must meet and confer prior to making such a request. 1 principal attorney(s) responsible for the litigation must participate in the MSC. This 2 appearance must be made with full and complete authority to negotiate and enter into a 3 binding settlement.3 Counsel for a government entity is excused from this requirement if 4 the government attorney who participates in the MSC (i) has primary responsibility for 5 handling the case, and (ii) may negotiate settlement offers that the attorney is willing to 6 recommend to the government official having ultimate settlement authority. 7 c. Confidential Settlement Brief. No later than seven (7) calendar days 8 before the MSC, each party must lodge a Confidential Settlement Brief by email to 9 efile_torres@casd.uscourts.gov. The Confidential Settlement Brief should not exceed ten 10 (10) pages, excluding exhibits, and must be formatted according to the requirements of 11 Civil L. R. 5.1(a). Parties attaching exhibits must attach only the relevant pages of multi- 12 page exhibits and must highlight the relevant portions. 13 d. Contents of Settlement Brief. All Confidential Settlement Briefs shall 14 include the content specified in the Court’s Chambers Rules, available at 15 https://www.casd.uscourts.gov/Judges/torres/docs/Civil%20Chambers%20Rules.pdf. 16 e. Procedure for Zoom Videoconference. Two (2) business days prior to 17 the MSC, the Court will email counsel of record an invitation with the Zoom meeting 18 information. Participants can join the Zoom video conference by following the ZoomGov 19 20 2 The attendance requirement includes parties that are indemnified by others. Any 21 deviation from this Order requires prior Court approval. 22 3 Full authority to settle means that the individuals at the MSC are authorized to fully explore settlement options and to agree at that time to any settlement terms acceptable 23 to the parties. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th 24 Cir. 1989). Party participants need to have “unfettered discretion and authority” to change the settlement position of a party. Pitman v. Brinker Int’l, Inc., 216 F.R.D. 481, 25 485-486 (D. Ariz. 2003). One of the purposes of requiring a person with complete 26 settlement authority to attend the conference is that the person’s view of the case may be altered during the face-to-face conference. Id. at 486. Limited or sum certain 27 authority is not adequate. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595-597 (8th 28 Cir. 2001). 1 Meeting hyperlink or using the meeting ID and password provided. Each participant should 2 plan to join the Zoom video conference at least five (5) minutes before the start of the 3 MSC. Counsel is responsible for ensuring their clients can participate in the MSC. All 4 participants must display the same level of professionalism and attention during the MSC 5 as if they were attending in person (e.g., professional attire, not be driving while speaking 6 to the Court, or otherwise distracted). 7 15. The initial date for the substantial completion of document discovery, 8 including electronically stored information (“ESI”), is November 30, 2026. See Patent 9 L.R. 2.1(a)(1). 10 16. All fact discovery shall be completed by all parties on or before December 11 18, 2026. 12 17. All expert disclosures required by Fed. R. Civ. P. 26(a)(2)(A) shall be served 13 on all parties on or before November 30, 2026. Any contradictory or rebuttal disclosures 14 within the meaning of Rule 26(a)(2)(D)(ii) shall be disclosed on or before December 14, 15 2026. If a written report is not required, the disclosures must provide the information 16 required under Rule 26(a)(2)(C). Any expert report as required by Rule 26(a)(2)(B) shall 17 be served on all parties on or before January 15, 2027. Any rebuttal expert report shall be 18 served on all parties on or before February 12, 2027. 19 18. All discovery, including expert discovery, shall be completed by all parties on 20 or before March 12, 2027. “Completed” means that interrogatories, requests for 21 production, and other discovery requests must be served at least thirty (30) days prior to 22 the established cutoff date so that response thereto will be due on or before the cutoff date. 23 All subpoenas issued for discovery must be returnable on or before the discovery cutoff 24 date. All disputes concerning discovery shall be brought the attention of the Magistrate 25 Judge no later than forty-five (45) days following the date upon which the event giving rise 26 to the dispute occurred. Counsel are required to meet and confer regarding all discovery 27 disputes pursuant to the requirements of Civil L. R. 26.1(a). Counsel are to comply with 28 the chambers rules of the Magistrate Judge in bringing discovery before the Court. 1 19. All other dispositive motions, including those addressing Daubert issues, shall 2 be FILED on or before March 26, 2027. Please be advised that counsel for the moving 3 party must obtain a motion hearing date from the law clerk of the judge who will hear the 4 motion. Failure of counsel to timely request a motion date may result in the motion not 5 being heard. Motions in Limine are to be filed as directed in the Local Rules, or as 6 otherwise set by the Honorable Andrew G. Schopler. 7 20. Briefs or memoranda in support of or in opposition to any pending motion 8 shall not exceed twenty-five (25) pages in length without permission of the judge or 9 magistrate judge who will hear the motion. No reply memorandum shall exceed ten (10) 10 pages without leave of the judge or magistrate judge who will hear the motion. 11 21. In order to identify the claims to be tried and eliminate delay and surprise at 12 trial, the Court enters the following pretrial order pursuant to Fed. R. Civ. P. 16. 13 22. Parties are excused from the requirement of Civil L.R. 16.1(f)(2)(a); no 14 Memoranda of Law or Contentions of Fact are to be filed. 15 23. All parties or their counsel shall fully comply with the Pretrial Disclosure 16 requirements of Fed. R. Civ. P. 26(a)(3) on or before April 30, 2027. Failure to comply 17 with these disclosure requirements could result in evidence preclusion or other 18 sanctions under Fed. R. Civ. P. 37. 19 24. Pursuant to Civil L.R. 16.1(f)(4), on or before May 7, 2027, the parties shall 20 meet and confer to comply with the provisions of that section and prepare a proposed 21 pretrial order in accordance with Civil L.R. 16.1(f)(6)(c) that contains the following: 22 a. A joint neutral statement to be read to the jury, not in excess of one page, 23 of the nature of the case and the claims and defenses. 24 b. A list of the causes of action to be tried, referenced to the Complaint. For 25 each cause of action, the order shall succinctly list the elements of the claim, damages, 26 and any defenses. A cause of action in the Complaint which is not listed shall be 27 dismissed with prejudice. 28 c. A list, in alphabetical order, of: 1 i. Each witness counsel actually expect to call at trial with a brief 2 statement, not exceeding four sentences, of the substance of the 3 witnesses’ testimony. 4 ii. Each expert witness counsel actually expect to call at trial with a 5 brief statement, not exceeding four sentences, of the substance of 6 the expert witnesses’ testimony. 7 iii. Additional witnesses, including experts, counsel do not expect to 8 call at this time but reserve the right to call at trial along with a brief 9 statement, not exceeding four sentences, of the substance of the 10 witnesses’ testimony. 11 d. A list of: 12 i. All exhibits that counsel actually expect to offer at trial with a one- 13 sentence description of the exhibit. All exhibits are to be identified 14 numerically, Plaintiff starting with “1” and Defendant beginning 15 with an agreed upon numerical designation. 16 ii. All other exhibits that counsel do not expect to offer at this time but 17 reserve the right to offer if necessary at trial with a one-sentence 18 description of the exhibit. 19 e. A statement of all facts to which the parties stipulate. This statement shall 20 be on a separate page and will be read to and provided to the jury. 21 f. A list of all deposition transcripts by page and line, or videotape 22 depositions by section, that will be offered at trial. 23 g. Counsel will note any objections they have to any other parties’ Fed. R. 24 Civ. P. 26 (a)(3) Pretrial Disclosures. 25 The Court encourages the parties to consult with the assigned Magistrate Judge to 26 work out any problems in preparation of the proposed pretrial order. The Honorable 27 Andrew G. Schopler will entertain any questions concerning the conduct of the trial at the 28 pretrial conference. 1 27. Counsel for Plaintiff will be responsible for preparing the pretrial order and 2 || arranging the meetings of counsel pursuant to Civil L.R. 16.1(f)(6)(a). On or before May 3 2027, Plaintiff's counsel must provide opposing counsel with the proposed pretrial 4 |lorder for review and approval. Opposing counsel must communicate promptly with 5 || Plaintiff's attorney concerning any objections to form or content of the pretrial order, and 6 parties should attempt promptly to resolve their differences, if any, concerning the 7 || order. 8 28. The proposed final pretrial conference order, including objections counsel 9 ||have to any other party’s Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared, 10 || served, and lodged with the chambers of the Honorable Andrew G. Schopler on or before 11 || May 21, 2027, and shall be in the form prescribed in and in compliance with Civil L.R. 12 || 16.1(£)(6)(c). Counsel shall also bring a court copy of the pretrial order to the pretrial 13 || conference. 14 29. The final pretrial conference shall be held before the Honorable Andrew G. 15 || Schopler, United States District Court Judge, on May 28, 2027 at 10:30 a.m. during which 16 || time the Court will address the submission of motions in limine, trial briefs, proposed voir 17 || dire and jury instructions, and the trial schedule. 18 30. The dates and times set forth herein will not be modified except for good cause 19 || shown. 20 31. Plaintiff's counsel shall serve a copy of this order on all parties that enter this 21 hereafter. 22 IT IS SO ORDERED.

Dated: June 9, 2026 NAO Honorable Valerie E. Torres 25 United States Magistrate Judge 26 27 28