Aria Diagnostics, Inc v. Sequenom, Inc

Filing 47

ORDER, Motions terminated: 45 STIPULATION WITH PROPOSED ORDER Re: Expedited Discovery And Amended Schedule For Hearing On Preliminary Injunction filed by Sequenom, Inc, 43 Discovery Letter BriefRegarding Expedited Discovery An d Briefing Schedule For Preliminary Injunction Motion filed by Aria Diagnostics, Inc. Replies due by 6/1/2012. Responses due by 5/11/2012. Motion hearing set 6/15/12 @ 9:00 a.m. in Courtroom #10 before Judge Illston. Signed by Judge Illston on 3/20/12. (tfS, COURT STAFF) (Filed on 3/21/2012)

1
2
3
4
5
6

Michael J. Malecek (State Bar No. 171034)
[e-mail]
Peter E. Root (State Bar No. 142348)
[e-mail]
Stephen C. Holmes (State Bar No. 200727)
[e-mail]
KAYE SCHOLER LLP
Two Palo Alto Square Suite 400
3000 El Camino Real
Palo Alto, CA 94306
Telephone: [phone]
Facsimile: [phone]

7
8

Attorneys for Defendant/
Counterclaim-Plaintiff
SEQUENOM, INC.

9
10
11

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

12
13
ARIA DIAGNOSTICS, INC.,
14
15
16
17
18
19
20
21
22
23
24
25

)
)
Plaintiff,
)
)
v.
)
)
SEQUENOM, INC,
)
)
Defendant/
)
Counterclaim-Plaintiff,
)
)
v.
)
)
ARIA DIAGNOSTICS, INC.,
)
)
Counterclaim-Defendant,
)
)
and
)
)
ISIS INNOVATION LIMITED
)
)
Nominal Counterclaim)
Defendant.
)
)
____________________________________ )

Case No. 3:11-cv-06391-SI
STIPULATION AND [PROPOSED]
ORDER RE: EXPEDITED DISCOVERY
AND AMENDED SCHEDULE FOR
HEARING ON PRELIMINARY
INJUNCTION
Judge: Hon. Susan Illston
Current Hearing Date: April 13, 2012
Proposed Hearing Date: June 15, 2012

26
27
28
STIPULATION/[PROPOSED] ORDER RE EXPEDITED DISCOVERY

Case No. 3:11-cv-06391-SI

STIPULATION

1
2

Plaintiff and Counterclaim-Defendant Aria Diagnostics, Inc. (“Aria”) and Defendant and

3

Counterclaim-Plaintiff Sequenom, Inc. (“Sequenom”), by and through their undersigned counsel,

4

hereby agree and stipulate, subject to the Court’s approval, as to the scope, form, and schedule for

5

expedited discovery in connection with Sequenom’s pending motion for preliminary injunction,

6

and as to a schedule for briefing and hearing on the motion, as follows:

7
8

A.

SCOPE AND FORM OF EXPEDITED DISCOVERY
1.

Each Party is entitled to propound one set of informal written document requests to

9

the other Party in the form of a letter comprising no more than fifteen (15) numbered requests that

10

seek information relevant to the issues presented by the pending motion for preliminary injunction,

11

which document requests shall not include either a “definitions” section or an “instructions”

12

section typical of formal requests for production of documents;

13

2.

Each Party will produce responsive documents and electronically stored

14

information as single-page TIFF images with corresponding load files on CDs, DVDs, hard drives,

15

or other conventional digital media, labeled with the beginning and ending Bates numbers, except

16

that files containing technical or other information in a non-standard format (including but not

17

limited to 2-D and 3-D design files, video and audio files, and other “exotic” file formats) shall be

18

produced in native format;

19

3.

The Parties shall cooperate on further mechanics of document production;

20

4.

Each Party shall be entitled to depose the other Party’s fact and expert witness

21

declarants supporting or opposing the pending motion for preliminary injunction, as the case may

22

be, and to take one (1) additional individual deposition of a percipient witness whose testimony is

23

relevant to the pending motion for preliminary injunction and who is a current employee of

24

Sequenom or Aria (as the case may be) and resides in California;

25

5.

For the avoidance of doubt, the Parties agree that the foregoing allowed

26

depositions shall not include depositions of the inventors of the patent-in-suit or depositions of an

27

organization under Rule 30(b)(6) of the Federal Rules of Civil Procedure;

28
STIPULATION/[PROPOSED] ORDER RE EXPEDITED DISCOVERY

1

Case No. 3:11-cv-06391-SI

1

6.

Other than the document and deposition discovery specified above, neither Party

2

shall be entitled to any further expedited discovery in connection with the pending motion for

3

preliminary injunction unless, for good cause shown by the Party seeking additional discovery,

4

this Court orders such additional discovery;

5

7.

Neither Party is required to provide a privilege log of documents or testimony

6

withheld from production on the basis of attorney-client privilege, attorney work product, common

7

interest privilege, or other applicable privilege or doctrine with respect to the expedited discovery

8

provided for herein;

9

8.

With respect to the expedited discovery provided for herein, the Parties shall

10

cooperate and make a good faith effort to reach agreement on a protective order for discovery

11

activities involving production of confidential, proprietary, or private information, but in the event

12

that the Parties are not able to reach agreement by April 9, 2012, the expedited discovery activities

13

in connection with the pending motion for preliminary injunction shall be governed by this Court’s

14

Patent Local Rule 2-2 Interim Model Protective Order, as provided in Local Patent Rule 2-2; and,

15

9.

Each Party shall serve all discovery requests and other papers pertaining to the

16

pending preliminary injunction motion on the other Party via email to the group email address that

17

each Party shall supply to the other Party.

18

A.

DISCOVERY, BRIEFING, AND HEARING SCHEDULE

19
20
21

Date

Event

March 19, 2012

Parties to exchange informal written document requests

April 11, 2012

Parties to produce responsive documents by hand delivery of CD-ROM
or other digital media with load file identifying start and end of each
document

22
23
24
25
26
27
28

April 11 to May 4,
2012
May 11, 2012

Aria to depose Sequenom’s declarants and no more than one additional
percipient witness
Aria Opposition Brief due

STIPULATION/[PROPOSED] ORDER RE EXPEDITED DISCOVERY

2

Case No. 3:11-cv-06391-SI

1

May 11 to May 25,
2012

Sequenom to depose Aria’s declarants and no more than one additional
percipient witness

4

June 1, 2012

Sequenom’s Reply Brief due

5

June 15, 2012

Hearing on Sequenom’s motion for preliminary injunction

2
3

6
7

The Parties jointly request that the Court approve the foregoing stipulation as to the scope,

8

form, and schedule for expedited discovery in connection with the pending motion for preliminary

9

injunction, and the proposed schedule for briefing and hearing of the pending motion for

10

preliminary injunction, including rescheduling the hearing for the motion for preliminary

11

injunction from the currently set date of April 13, 2012, to the rescheduled date of June 15, 2012,

12

at 9:00 a.m., or as soon thereafter as the matter may be heard by the Court.
Respectfully submitted,

13
14

Dated: March 20, 2012

KAYE SCHOLER LLP

15
By:

16
17

s/ Peter E. Root
Peter E. Root
Attorneys for Defendant/Counterclaim-Plaintiff
SEQUENOM, INC.

18
19
20

Dated: March 20, 2012

IRELL & MANELLA LLP

21
By:
22
23

s/ David I. Gindler
David I. Gindler
Attorneys for Plaintiff/Counterclaim-Defendant
ARIA DIAGNOSTICS, INC.

24
25
26

FILER’S ATTESTATION: I, Peter E. Root, am the ECF User whose identification and password
are being used to file this Stipulation and [Proposed] Order. In compliance with General Order
45.X.B, I hereby attest that David I. Gindler has concurred in this filing.

27
28
STIPULATION/[PROPOSED] ORDER RE EXPEDITED DISCOVERY

3

Case No. 3:11-cv-06391-SI

1

[PROPOSED] ORDER

2

Based on the stipulation of the Parties and for good cause shown, the Court hereby

3

approves the foregoing Stipulation of the Parties, and IT IS HEREBY ORDERED that:

4

1.

The scope, form, and schedule for expedited discovery in connection with the

5

pending motion for preliminary injunction is and shall be as set forth in the foregoing Stipulation;

6

and,

7

2.

The briefing and hearing schedule is and shall be as set forth in the foregoing

8

Stipulation, including that the hearing for the pending motion for preliminary injunction is hereby

9

rescheduled from April 13, 2012, to June 15, 2012, at 9:00 a.m.

10
11

IT IS SO ORDERED.

12
13

16
Dated: March __, 2012
SUSAN ILLSTON
United States District Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

STIPULATION/[PROPOSED] ORDER RE EXPEDITED DISCOVERY

4

Case No. 3:11-cv-06391-SI