United States District Court, E.D. Michigan, Southern Division
ORDER APPOINTING SPECIAL MASTER
Matthew F. Leitman, Judge
a patent infringement action. The Court has advised the
parties that it would benefit from the appointment of a
Special Master to efficiently address (1) disputes over claim
construction, (2) discovery disputes, and (3) scheduling
matters. The parties then jointly requested that the Court
appoint Mr. Eric Dobrusin, 29 W. Lawrence Street, Suite 210,
Pontiac, Michigan 48342, as the Special Master for these
phases of the litigation.
Dobrusin is the founding shareholder of the Dobrusin Law
Firm, and he has extensive experience in patent law. He
received a Bachelor of Science degree in materials and
metallurgical engineering from the University of Michigan
School of Engineering in 1985, and a Juris Doctor degree from
Wayne State University in 1988. He has substantial litigation
experience and has received numerous honors related to his
work in patent law. He also has been appointed and served in
United States District Court patent litigation as a Special
Master, and he has served as an independent neutral for
multiple alternative dispute resolution proceedings related
to patent law. Finally, Mr. Dobrusin is the Executive
Director of the National Patent Board, an alternative dispute
resolution organization. Mr. Dobrusin is well positioned to
“effectively and timely address” the
patent and discovery portions of this action, and the Court
is not. See Fed.R.Civ.P. 53(a)(1)(C) (emphasis
added) (authorizing district court to refer any pretrial
matter to a special master where the matter “cannot be
effectively and timely handled by an available district judge
or magistrate judge of the district”).
this Order, the Court appoints Mr. Dobrusin as Special
Master. The Court makes this appointment pursuant to Federal
Rule of Civil Procedure 53 (“Rule 53”), and the
appointment is limited to empowering Mr. Dobrusin to hold a
claim construction hearing, to receive evidence on claim
construction issues consistent with the evidence the parties
submitted with their Markman submissions, to file a
Rule 53 report and recommendation with the Court on the
correct construction and/or definiteness of the patent claim
terms at issue in this case, to address discovery disputes
that may arise between the parties, to file Rule 53 report
and recommendations with respect to any such discovery
disputes, and finally, to file a Rule 53 report and
recommendation with the Court with respect to scheduling
specifically, IT IS HEREBY ORDERED that:
Dobrusin shall convene a conference with the parties to
discuss the entry of a scheduling order and claim
constriction proceedings. Following consultation with the
parties, Mr. Dobrusin shall recommend a proposed scheduling
order to the Court. He shall also set a schedule for
submitting claim construction briefs and shall instruct the
parties on the length and format of these briefs. If,
following the submission of the parties' initial claim
construction briefs, Mr. Dobrusin determines that additional
briefing is necessary, he shall confer with the parties to
arrange a schedule for such additional briefing.
Dobrusin may, at his discretion, hold a claim construction
hearing where he may hear oral argument on claim construction
issues and receive evidence. Mr. Dobrusin shall determine the
procedure (i.e., hearing format) employed at the
hearing at his discretion.
this hearing, a court reporter shall be engaged so that an
adequate record can be generated. If Mr. Dobrusin determines
that oral testimony is necessary during the claim
construction hearing, the testimony shall be taken under
oath. Mr. Dobrusin shall conduct the hearing in Flint,
Michigan, in Judge Leitman's courtroom unless Mr.
Dobrusin and the parties agree on an alternative location.
Dobrusin shall prepare a report and recommendation for the
Court on the correct construction and/or definiteness of the
patent claim terms in dispute. Mr. Dobrusin shall proceed
with all reasonable diligence and shall have the rights,
powers, and duties provided in Rule 53, as limited by this
Order. Mr. Dobrusin shall file his report and recommendation
(and all other evidence discussed infra) with the
Court. Mr. Dobrusin shall file any privileged and/or
confidential information under seal.
Dobrusin shall also address any discovery disputes that arise
between the parties. If a discovery dispute arises, Mr.
Dobrusin shall first hold a telephonic status conference with
the parties in an effort to resolve the dispute. If the
dispute cannot be resolved, Mr. Dobrusin shall set a schedule
for the filing of a discovery motion and shall instruct the
parties on the length and format of these motions and briefs.
The parties shall thereafter file their discovery motion and
briefs with Mr. Dobrusin and with the Clerk of the Court. If,
following the submission of the parties' discovery
papers, Mr. Dobrusin determines that additional briefing is
necessary, he shall confer with the parties to arrange a
schedule for such additional briefing. Mr. Dobrusin may, at
his discretion, hold a hearing on the parties' discovery
disputes. At any such hearing, a court reporter shall be
engaged so that an adequate record can be generated. Mr.
Dobrusin shall conduct any such hearing in Flint, Michigan,
in Judge Leitman's courtroom unless Mr. Dobrusin and the
parties agree on an alternative location. Mr. Dobrusin shall
then prepare a report and recommendation for the Court that
proposes a resolution of the filed discovery motion. Mr.
Dobrusin shall proceed with all reasonable diligence and
shall have the rights, powers, and duties provided in Rule
53, as limited by this order. Mr. Dobrusin shall file his
report and recommendation with the Court upon its completion.
Mr. Dobrusin shall file any privileged and/or confidential
information under seal.
During the term of appointment, Mr. Dobrusin shall preserve
any records necessary for the Court's review of any
orders, reports, or recommendations made during the course of
his assignment. All evidence Mr. Dobrusin considers in
preparing his report should be recorded, preserved, and filed
with the Court.
Copies of papers filed with Mr. Dobrusin shall also be filed
simultaneously with the Clerk of the Court and served
pursuant to applicable federal rules. In addition, a hard
copy shall be delivered to the chambers of Judge Matthew
Leitman. Forwarding letters or informal communications need
not be filed but should be served on the other parties.
Dobrusin shall not communicate ex parte with the
individual parties. Any documents exchanged between Mr.
Dobrusin and the Court shall also be timely served on the
Dobrusin may communicate with the Court ex parte ...