Verco Decking Incorporated v. Consolidated Systems Incorporated

Filing 90

ORDER that within seven (7) days of this Order, Verco shall file an amended deposition transcript or affidavit as explained in this Order. ORDERED that ruling on the 71 Motion is deferred. IT IS FURTHER ORDERED that the 79 Motion to File Surreply Claim Construction Brief is GRANTED. The Clerk of the Court is directed to file the lodged surreply. Signed by Judge G Murray Snow on 5/13/2014.(LFIG)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Verco Decking, Inc.,

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Plaintiff/Counterclaim-Defendant,

No. CV-11-2516-PHX-GMS
ORDER

vs.
Consolidated Systems, Inc.,

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Defendant/Counterclaim-Plaintiff.

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Pending before this Court are Plaintiff’s Motion to File Under Seal Plaintiff’s

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Unredacted Response (Doc. 71) and a Motion to File Surreply Claim Construction Brief

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(Doc. 79). These motions both relate to Defendant’s Motion for Claim Construction.

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(Doc. 65.) For the following reasons, ruling on the Motion to File Under Seal will be
deferred until after Verco Decking makes the filing required by this order. The Motion to
File a Surreply is granted.
I.

File under Seal
Consolidated Systems, Inc. (“CSI”) filed its Motion for Claim Construction asking

this Court to interpret the term “louver” as used in the claims of the patents-in-suit. (Doc.
65.) Verco Decking, Inc., (“Verco”) filed a redacted Response (Doc. 73), but also filed a
Motion to Seal Document (Doc. 71) and lodged a sealed Proposed Unredacted Response
(Doc. 72). CSI filed an Opposition to Plaintiff’s Motion to File under Seal (Doc. 76), and
Verco filed a Reply. (Doc. 77).

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Verco argues that its lodged motion should be sealed pursuant to the parties’

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Stipulated Protection Order (Doc. 56). CSI agrees that “[t]he material sought to be

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included under seal by [Verco] deserves protection as confidential and/or proprietary

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information.” (Doc. 76 at 4.) However, CSI asks that the motion be denied because it

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would be “futile,” or “pointless,” because the information contained is extrinsic evidence

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and the Court should instead rely primarily on intrinsic evidence. (Id. at 2–3.) CSI further

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state that “inclusion of this extrinsic material serves only to muddle the issues presented

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to this Court.” (Id. at 4.)

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The Court will not deny the Motion on those grounds. Verco is entitled to make its

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arguments to the Court and the assertion that an argument will be unavailing does not

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provide an adequate basis to strike or refuse to accept a lodged motion.

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CSI’s second reason to oppose the filing is that it exercised its right to review the

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deposition transcript that Verco quoted from, but was not given the 30 days to do so.

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Here, the deposition in question took place on February 6 (Doc. 72-9), and Verco filed its

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motions on February 14, 2014. (Docs. 71–73.) As a practical matter, Verco could not

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provide 30 days for review before the motion deadline of February 14, which this Court

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had already extended once. (Doc. 69.) However, the 30 day review period has now

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passed, and CSI should have reviewed and made any changes to the deposition transcript.

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The Court will allow the lodged Unredacted Motion to be docketed, but only after

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it is informed of any changes or objections that CSI made to the deposition transcript that

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Verco submitted. Within seven days, Verco shall file either an amended final transcript of

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the deposition under seal or file an affidavit certifying that no changes were made by CSI

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to the portions of the deposition that were previously submitted to the Court under seal.

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II.

Surreply

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CSI filed no opposition to Verco’s Motion for Leave to File a Surreply, and it has

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since filed a joint motion with this Court stating that the matter is ripe for decision (Doc.

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86). The Court will grant CSI’s unopposed motion to file a Surreply.

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IT IS HERBY ORDERED that within seven (7) days of this Order, Verco shall
file an amended deposition transcript or affidavit as explained herein.
IT IS FURTHER ORDERED that ruling on the Motion to File Under Seal is
deferred (Doc. 71).

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IT IS FURTHER ORDERED that the Motion to File Surreply Claim

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Construction Brief (Doc. 79) is GRANTED. The Clerk of the Court is directed to file the

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lodged Plaintiff’s Surreply in Opposition to Defendant’s Motion for Claim Construction

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(Doc. 80).

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Dated this 13th day of May, 2014.

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