Advanced Internet Technologies, Inc. v. Dell, Inc. et al

Filing 10

Reply Memorandum re 3 MOTION to Compel Compliance and Hold Non-Party Exponent, Inc. in Contempt of Subpoenas Reply in Support of Motion to Hold Non-Party Exponent, Inc. in Contempt of Subpoenas and to Compel Compliance filed byAdvanced Internet Technologies, Inc.. (Jonckheer, Willem) (Filed on 4/23/2010)

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DARREN T. KAPLAN, Esq. (To Be Admitted Pro Hac Vice) CHITWOOD HARLEY HARNES LLP 185 Great Neck Road, Suite 340 Great Neck, NY 11021 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Counsel for Plaintiff Advanced Internet Technologies, Inc. ROBERT C. SCHUBERT (S.B.N. 62684) WILLEM F. JONCKHEER (S.B.N. 178748) DUSTIN L. SCHUBERT (S.B.N. 254876) SCHUBERT JONCKHEER & KOLBE LLP Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Local Counsel for Plaintiff Advanced Internet Technologies, Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ADVANCED INTERNET TECHNOLOGIES, INC., Plaintiff, v. DELL, INC. and DELL FINANCIAL SERVICES, INC., Defendants. Case No. CV 10 80078MISC REPLY IN SUPPORT OF MOTION TO HOLD NON-PARTY EXPONENT, INC. IN CONTEMPT OF SUBPOENAS AND TO COMPEL COMPLIANCE FRCP 45(e) (Master Case Pending in the Eastern District of North Carolina, Case No. 5:07-CV-426-H) Date: May 7, 2010 Time: 9:00 a.m.

­1­ REPLY IN SUPPORT OF MOTION TO HOLD NON-PARTY EXPONENT, INC. IN CONTEMPT OF SUBPOENAS AND TO COMPEL COMPLIANCE (Fed. R. Civ. P. 45(e))

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On April 1, 2010, plaintiff Advanced Internet Technologies, Inc. ("AIT") filed its motion to hold non-party Exponent, Inc. ("Exponent") in contempt, and to compel compliance with a subpoena issued in the underlying action. In its responding brief, Exponent does not generally dispute its obligation to produce documents or a witness in response to the subpoena issued by counsel for AIT. See Exponent, Inc.'s Response to Motion for Contempt ("Exponent's Resp."), p. 1. In fact, counsel for Exponent concedes that it "could have been more diligent in identifying the responsive materials, producing them to AIT, and conferring with AIT's counsel to better define the scope of testimony sought from Exponent." Id. Exponent states that it is in the process of producing documents that are not privileged, and after AIT's counsel has reviewed the documents, Exponent's counsel will work with AIT's counsel to ensure that an appropriate witness is produced for deposition. Id., pp. 1-2. While AIT certainly agrees that Exponent could have been more diligent in responding to the subpoena, AIT does not wish to burden this Court further with an additional motion to punish Exponent, so long as documents responsive to the subpoena continue to be forthcoming. Exponent also requests that this Court adopt the terms of the stipulated protective order entered in the underlying case to protect information it intends to produce. Id., p. 4. AIT agrees that the stipulated protective order from the underlying case should be entered for purposes of this proceeding. Therefore, AIT has filed a proposed order herewith, and hereby requests that the Court adopt the stipulated protective order entered in the underlying action as governing information produced by Exponent herein.

­2­ REPLY IN SUPPORT OF MOTION TO HOLD NON-PARTY EXPONENT, INC. IN CONTEMPT OF SUBPOENAS AND TO COMPEL COMPLIANCE (Fed. R. Civ. P. 45(e))

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Dated: April 23, 2010 SCHUBERT JONCKHEER & KOLBE LLP ______________/s/_____________ Willem F. Jonckheer Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Local Counsel for Plaintiff Advanced Internet Technologies, Inc. Darren T. Kaplan CHITWOOD HARLEY HARNES LLP 185 Great Neck Road, Suite 340 Great Neck, NY 11021 Telephone: [phone] Facsimile: [phone] Counsel for Plaintiff Advanced Internet Technologies, Inc.

­3­ REPLY IN SUPPORT OF MOTION TO HOLD NON-PARTY EXPONENT, INC. IN CONTEMPT OF SUBPOENAS AND TO COMPEL COMPLIANCE (Fed. R. Civ. P. 45(e))