Jewel et al v. National Security Agency et al

Filing 66

ORDER of USCA as to 61 Notice of Appeal, filed by Gregory Hicks, Tash Hepting, Erik Knutzen, Carolyn Jewel, Joice Walton (far, COURT STAFF) (Filed on 6/8/2010)

Jewel et al v. National Security Agency et al

Doc. 66

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MICHAEL R. RIEMENSCHNEIDER (FLA. BAR NO. 613762) WILLIAM H. CANTWELL, II (FLA. BAR NO. 0152072) O'BRIEN RIEMENSCHNEIDER, P.A. 1686 WEST HIBISCUS BOULEVARD MELBOURNE, FL 32901 TELEPHONE: [phone] FACSIMILE: [phone] ATTORNEYS FOR DEFENDANTS XOS, ATON, ECCKER, CHRISTIANSON, MILLER, AND CARPENTER APPEARING PRO HAC VICE THOMAS R. HOGAN, SBN 042048 LESLIE HOLMES, SBN 192608 MARK V. BOENNIGHAUSEN, SBN 142147 333 WEST SANTA CLARA STREET, SUITE 800 SAN JOSE, CALIFORNIA 95113 TELEPHONE: [phone] FACSIMILE: [phone] ATTORNEYS FOR DEFENDANTS XOS, ATON, ECCKER, CHRISTIANSON, MILLER, AND CARPENTER UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case # C02 03804 RMW PINNACLE SYSTEMS, INC., a Delaware corporation, Plaintiff, v. XOS TECHNOLOGIES, INC., a Florida corporation, DAN ATON, a resident of Florida; RANDY ECCKER, a resident of Nebraska; MICHAEL CHRISTIANSON, a resident of Florida; SPENCER MILLER, a resident of Colorado; STEVE SCHUTT, a resident of Colorado; and JEFFREY CARPENTER, a resident of Texas, Defendants. __________________________________________ XOS TECHNOLOGIES, INC., a Florida Corporation, Defendant/Counter-Plaintiff, v. PINNACLE SYSTEMS, INC., a Delaware corporation, DAVID GLOVER, JOE WALSH, BOB WHITE, BRIAN ZAPACH and BRETT HAMMOND, Counter-Defendants. XOS TECHNOLOGIES, INC.'S REPLY TO PINNACLE'S OPPOSITION TO DEFENDANTS' [SIC] MOTION TO COMPEL DEPOSITIONS Date: July 16, 2003 Time: 9:30 a.m. Judge: Magistrate Judge Richard Seeborg Ctrm: 4

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Defendant XOS TECHNOLOGIES, INC. (hereinafter referred to as "XOS") submits this Reply to PINNACLE SYSTEMS, INC.'s (hereinafter referred to as "Pinnacle") Opposition to Defendants' [sic] Motion to Compel Depositions. I. BRETT HAMMOND Pinnacle states in its opposition that it agrees to produce Brett Hammond for deposition and therefore the motion to compel is moot. However, to date, Pinnacle has neither produced Hammond, nor has it provided XOS with a date that it will produce Hammond. As discussed in the Motion to Compel Depositions dated June 9, 2003, in April 2003, XOS' counsel coordinated with Pinnacle's counsel and scheduled Mr. Hammond's deposition and Pinnacle agreed to produce Mr. Hammond in California. Less than three business days prior to the deposition (one day prior to XOS' counsel traveling from Florida to California), Pinnacle unilaterally cancelled the deposition. In an attempt to resolve this matter without the need for the July 16, 2003 hearing, XOS' counsel spoke with Pinnacle's counsel after the June 20, 2003 case management conference with Judge Whyte. At that meeting, Pinnacle's counsel advised that Brett Hammond would be produced and volunteered to produce him the following week while XOS' counsel deposed various Pinnacle employees in Massachusetts. Pinnacle however, did not produce Hammond. Despite Pinnacle's representations that it will produce Hammond, XOS requests a Court order compelling Pinnacle to produce Mr. Hammond, so Pinnacle cannot simply cancel any subsequently scheduled deposition. II. AJAY CHOPRA As with Mr. Hammond, Pinnacle unilaterally cancelled the deposition of Ajay Chopra after Pinnacle agreed to produce him for deposition. Pinnacle has now taken the position that it will not produce Chopra at all because he is a "high level executive without first-hand knowledge of the facts at issue in this case." (Pinnacle's Opposition to Motion to Compel Depositions, p. 1). This is

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simply untrue. The testimony of David Glover, Pinnacle's Vice President of Network News and Sports, revealed that Mr. Chopra does have knowledge of the facts relevant to this case.1 David Glover was identified by Pinnacle as its corporate representative in the lawsuit and has filed numerous declarations in this case. The testimony of Mr. Glover, specifically at pages 27-30 and 35, establishes that Mr. Glover's supervisor is Ajay Chopra and Mr. Glover reports to him at regularly scheduled meetings. (A copy of these excerpts are attached to the Declaration of William H. Cantwell, II Filed Under Seal in Support of XOS Technologies, Inc.'s Reply to Pinnacle's Opposition to Defendants' [sic] Motion to Compel Depositions). Pinnacle cannot accuse the Defendants of the bad acts set forth in the First Amended Complaint and then refuse to allow Defendants to take the deposition of the Pinnacle employee who is supervising the direction of this lawsuit. Pinnacle represents to this Court that "the parties are in the process of reaching an agreement as to Mr. Chopra." (Pinnacle's Opposition to Motion to Compel Depositions, p. 2). This statement is false. XOS fully intends to take the deposition of Chopra, and has never indicated anything to the contrary to Pinnacle. Pinnacle's attorneys have simply refused to produce him. III. PINNACLE'S DELAYS HAVE PREJUDICED XOS As discussed in the Motion to Compel Depositions, these depositions were scheduled back in April 2003. Three business days prior to the June 9 and 10 depositions, Pinnacle unilaterally cancelled them. To date, Pinnacle has provided no date for Brett Hammond's deposition and has now asserted that despite their previous agreement to produce Ajay Chopra, they will not produce him for deposition. As a result, once again, Pinnacle has stalled XOS' discovery efforts. These depositions should have been completed a month ago. Unfortunately, XOS has been required to move this Court for the relief of compelling production of witnesses that Pinnacle previously agreed to produce. XOS has been prejudiced and unable to properly develop a defense strategy or conduct discovery.

Pursuant to the Stipulated Protective Order, excerpts from David Glover's June 24, 2003 deposition have been filed contemporaneously with this Reply in compliance with Local Rule 79-5.
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For the reasons stated above, XOS respectfully requests that this Court enter an order compelling Pinnacle to provide the depositions of Ajay Chopra and Brett Hammond, and for such further relief as the Court may deem proper. DATED: July 7, 2003 O'BRIEN RIEMENSCHNEIDER, P.A.

By S/William H. Cantwell, II William H. Cantwell, II Attorneys for Defendants XOS, ATON, ECCKER, CHRISTIANSON, MILLER, & CARPENTER CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished via electronic filing and U.S. Mail to MICHAEL J. BETTINGER, ESQUIRE, Attorney for Plaintiff, Preston Gates Ellis, LLP, 55 Second Street, Suite 1700, San Francisco, California 94105 and to THOMAS R. HOGAN, ESQUIRE, Co-Counsel for Defendants, 333 West Santa Clara Street, Suite 800, California 95113 this 7th day of July, 2003.

S/William H. Cantwell, II William H. Cantwell, II

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