Phoenix Technologies Ltd. v. VMware, Inc.

Filing 89

ORDER by Judge Haywood S. Gilliam, Jr. Granting 88 Stipulation to Modify Expert Report Deadlines.(ndrS, COURT STAFF) (Filed on 4/11/2016)

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MICHAEL A. JACOBS (CA SBN 111664)
[e-mail]
ARTURO J. GONZÁLEZ (CA SBN 121490)
[e-mail]
ALEXANDRIA A. AMEZCUA (CA SBN 247507)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, CA 94105-2482
Telephone: [phone]
Facsimile: 415.268.7522
Attorneys for Defendant
VMWARE, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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PHOENIX TECHNOLOGIES LTD., a
Delaware corporation

Case No. 15-cv-01414-HSG

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Plaintiff,
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STIPULATION TO MODIFY EXPERT
REPORT DEADLINES AND ORDER

v.
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VMWARE, INC., a Delaware Corporation

[CIVIL L.R. 6-2]

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Defendant.

DEMAND FOR JURY TRIAL

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Trial Date: November 28, 2016
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VMWARE, INC., a Delaware Corporation,
Counterclaimant,

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v.
PHOENIX TECHNOLOGIES LTD. a
Delaware Corporation,
Counterdefendant.

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STIPULATION AND [PROPOSED] ORDER RE EXPERT REPORTS
CASE NO. 3:15-cv-01414-HSG
sf-3636453

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STIPULATION

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Pursuant to Civil Local Rule 6-2, Phoenix Technologies Ltd. (“Plaintiff”) and Defendant

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VMware, Inc. (“Defendant”) (collectively, the “Parties”) file this joint stipulation requesting that

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the Court issue an order modifying certain deadlines in order to streamline expert discovery

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relating to damages in this case. The parties accordingly stipulate as follows:

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WHEREAS, the Court’s case management schedule requires opening expert disclosures
by May 6, 2016 and rebuttal expert disclosures by May 27, 2016;
WHEREAS, to allow the completion of fact discovery in this matter, the Parties believe a
slight extension to the schedule for expert reports would be beneficial;
WHEREAS, the remedy of infringer’s profits includes issues on which Phoenix and
VMware, respectively, bear the burden of proof;

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WHEREAS, the Parties wish to streamline the presentation of expert reports;

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WHEREAS, the Parties agree that both VMware and Phoenix shall serve opening

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technical reports on the Opening Expert Disclosure date, and then a set of rebuttal technical

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reports, if appropriate, on the Rebuttal Expert Disclosure date;

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WHEREAS, the Parties agree that Phoenix shall serve an opening expert report on all

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damages issues for which it bears the burden of proof on the Opening Expert Disclosure date,

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VMware shall serve a single expert report rebutting Phoenix’s damages report and offering

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opinions and analysis regarding damages issues for which VMware bears the burden of proof on

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the Rebuttal Expert Disclosure date, and Phoenix shall serve a reply report rebutting VMware’s

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damages report on the Reply Expert Disclosure date,

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NOW, THEREFORE, the Parties hereby stipulate and agree to the following deadlines for
expert reports:

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Opening Expert Disclosures.
For Phoenix: Phoenix’s opening damages
report from Mr. Lynde, and technical expert
reports from Mr. Zeidman and Mr. Polish.
For VMware: VMware’s technical expert
reports from Mr. Cullimore and Mr. Mowry.

Prior Deadline
May 6, 2016

STIPULATION AND [PROPOSED] ORDER RE EXPERT REPORTS
CASE NO. 3:15-cv-01414-HSG
sf-3636453

New Deadline
May 13, 2016

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Prior Deadline
Rebuttal Expert Disclosures. For Phoenix: May 27, 2016
rebuttal technical expert reports from Mr.
Zeidman and Mr. Polish. For VMware:
damages expert report rebutting Mr. Lynde
and on issues for which it bears the burden of
proof (i.e., for the remedy of infringer’s
profits, deductible expenses and the portion
of profit attributable to the copyrighted
work) from Ms. Davis and rebuttal technical
expert reports from Mr. Cullimore and Mr.
Mowry.
Phoenix’s Reply Damages Expert Report
-from Mr. Lynde rebutting VMware’s
damages expert report.
Expert Discovery Cutoff
June 24, 2016
Last Day to File Motion to Compel Expert July 1, 2016
Discovery

New Deadline
June 10, 2016

June 27, 2016
July 8, 2016
July 15, 2016

The parties have also mutually agreed to withdraw certain 30(b)(6) deposition topics. To
the extent an expert relies upon information obtained from an employee who has not already been
deposed in rendering their opinions that would have been the subject of one of the withdrawn
30(b)(6) topics, the opposing party may have the opportunity to depose that employee,
notwithstanding the fact discovery cut-off of April 29, 2016. Any such deposition would be
limited solely to the information provided by the employee that the expert relied upon. Should a
party request an additional fact witness deposition pursuant to this provision, the notice must be
served no later than five days after service of the expert report that relies upon the employee
information, or if it is not clear from the report, within five days of the deposition of that expert.
The Parties submit that the schedule modification proposed above would not change any
other deadlines in this case or for the Court.
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STIPULATION AND [PROPOSED] ORDER RE EXPERT REPORTS
CASE NO. 3:15-cv-01414-HSG
sf-3636453

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Dated: April 8, 2016

COOLEY LLP

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/s/ Whitty Somvichian
Whitty Somvichian
Attorneys for Plaintiff
PHOENIX TECHNOLOGIES LTD.

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Dated: April 8, 2016

MORRISON & FOERSTER LLP

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/s/ Arturo J. González1
Arturo J. González
Attorneys for Defendant
VMWARE, INC.

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PURSUANT TO THE PARTIES’ STIPULATION, IT IS SO ORDERED.

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Dated: 4/11/2016
_______________________

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By:
HAYWOOD S. GILLIAM, JR.
United States District Judge

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I, Arturo J. González, am the ECF User whose ID and password are being used to file
this Declaration. In compliance with Civil L.R. 5-1(i)(3) I hereby attest that Whitty Somvichian
has concurred in this filing.
STIPULATION AND [PROPOSED] ORDER RE EXPERT REPORTS
CASE NO. 3:15-cv-01414-HSG
sf-3636453

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