Apple Computer, Inc. v. Podfitness, Inc.

Filing 64

MOTION to Stay Proceedings for Thirty Days Pending Engagement of Substitute Counsel filed by Podfitness, Inc. Motion Hearing set for 11/6/2007 01:00 PM in Courtroom 3, 3rd Floor, Oakland. (Attachments: # 1 Exhibit A-Declaration of Steven R. Hutchinson# 2 Proposed Order)(Veverka, Charles) (Filed on 10/1/2007) Modified on 10/16/2007 (jlm, COURT STAFF).

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Apple Computer, Inc. v. Podfitness, Inc. Doc. 64 Case 4:06-cv-05805-SBA Document 64 Filed 10/01/2007 Page 1 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Larry R. Laycock (Admitted Pro Hac Vice) Charles J. Veverka (Admitted Pro Hac Vice) Robert E. Aycock (Admitted Pro Hac Vice) Mark W. Ford (Admitted Pro Hac Vice) WORKMAN | NYDEGGER 1000 Eagle Gate Tower 60 East South Temple Salt Lake City, UT 84111 Telephone: (801) 533-9800 Facsimile: (801) 328-1707 Email: llaycock@wnlaw.com William B. Farmer (State Bar No. 46694) Jacob Alpren (State Bar No. 235713) COLLETTE ERICKSON FARMER & O'NEILL LLP 235 Pine Street, Suite 1300 San Francisco, CA 94104 Telephone: (415) 788-4646 Facsimile: (415) 788-6929 Email: wfarmer@collette.com Attorneys for Defendant PODFITNESS, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION APPLE, INC., Plaintiff, v. PODFITNESS, INC., and DOES 1-100, inclusive Defendants. Civil Action No. 4:06-cv-05805 SBA PODFITNESS' MOTION TO STAY PROCEEDINGS FOR THIRTY DAYS PENDING ENGAGEMENT OF SUBSTITUTE COUNSEL Courtroom 3, 3rd Floor Date: November 6, 2007 Time: 1:00 pm Judge: Hon. Saundra B. Armstrong PODFITNESS' MOTION TO STAY 1 Dockets.Justia.com Case 4:06-cv-05805-SBA Document 64 Filed 10/01/2007 Page 2 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 At the request of Defendant Podfitness, Inc. ("Podfitness"), Workman Nydegger submits the follow Motion to Say Proceedings for Thirty Days Pending Engagement of Substitute Counsel. The statements herein are based upon the supporting declaration of Steven R. Hutchinson (filed contemporaneously herewith) and are not necessarily the position of Workman Nydegger: On September 18, 2007, present counsel for Podfitness, Workman Nydegger and Collette Erickson Farmer & O'Neill, moved this Court for leave to withdraw as counsel. Podfitness must now find and educate substitute counsel to represent Podfitness. Once found and retained, educating substitute counsel is a task that will likely take a signification amount of time. In light of this, on September 27, 2007, Podfitness' VP of Business & Legal Affairs (Steve Hutchinson) contacted counsel for Apple Inc. (Lisa Martens) seeking Apple's agreement to a thirty-day stay or stand-down, while Podfitness engages and educates substitute counsel. Apple refused to accommodate Podfitness' reasonable request under the circumstances. (See Declaration of Steve Hutchinson, attached hereto as Exhibit A). Podfitness has identified the following facts, which make staying this action for thirty days essential in order to avoid prejudice to Podfitness' case: First, Apple has recently produced nearly 300,000 pages of documents, many of which have been marked "attorney's eyes only." Because in-house counsel for Podfitness, Steve Hutchinson, is not permitted under the protective order to review these documents, much of this remains in need of review. Apple has expressly opposed Mr. Hutchinson's requests for a thirty-day stay while Podfitness retains substitute counsel, stating that Mr. Hutchinson himself can represent Podfitness going forward. Despite knowing that Mr. Hutchinson cannot review much of Apple's document production because it is marked "attorney's eyes only," Apple has not offered to allow disclosure of "attorney's eyes only" documents to Mr. Hutchinson. (Id. at 2, 3 and 7). Second, Apple filed its First Amended Complaint on August 1, 2007. The new claims asserted in Apple's Amended Complaint, and the additional counterclaims included in Podfitness' Answer to the First Amended complaint will likely spawn the need for additional discovery. (Id. at 4). PODFITNESS' MOTION TO STAY 2 Case 4:06-cv-05805-SBA Document 64 Filed 10/01/2007 Page 3 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Third, Apple has also noticed its intention to depose Podfitness' president and CEO. Substitute counsel will need to be properly educated on the facts and issues present in this case prior to defending those depositions. (Id. at 5). Finally, the parties are presently in sincere settlement discussions and have exchanged preliminary settlement agreement drafts. Staying these proceedings for thirty-days would allow the parties to continue with the settlement discussions while avoiding additional costs and burdens to themselves and the Court if a settlement is reached. (Id. at 6). Based on the foregoing, Podfitness seeks a thirty-day stay of this action. Without a thirty-day stay, Podfitness' case would be critically prejudiced. DATED: October 1, 2007. Respectfully submitted on behalf of Podfitness, WORKMAN | NYDEGGER /s/ Charles J. Veverka ___________________ 1000 Eagle Gate Tower 60 East South Temple Salt Lake City, UT 84111 Telephone: (801) 533-9800 COLLETTE ERICKSON FARMER & O'NEILL LLP 235 Pine Street, Suite 1300 San Francisco, CA 94104 Telephone: (415) 788-4646 Attorneys for Defendant and Counterclaimant Podfitness, Inc. PODFITNESS' MOTION TO STAY 3 Case 4:06-cv-05805-SBA Document 64 Filed 10/01/2007 Page 4 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PODFITNESS' MOTION TO STAY PROOF OF SERVICE I hereby certify that on October 1, 2007, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which sent notification of such filing to the following: Abrams@fr.com; jacobalpren@quinnemanuel.com; raycock@wnlaw.com; wfarmer@collette.com; rlawrence@collette.com; llaycock@wnlaw.com; jlewis@wnlaw.com; martens@fr.com; miclean@fr.com; cveverka@wnlaw.com and served Podfitness' in-house counsel separately at shutchinson@podfitness.com. WORKMAN | NYDEGGER /s/ Charles J. Veverka ___________________ Larry R. Laycock Charles J. Veverka Robert A. Aycock Mark W. Ford 1000 Eagle Gate Tower 60 East South Temple Salt Lake City, UT 84111 Telephone: (801) 533-9800 William S. Farmer Jacob Alpren COLLETTE ERICKSON FARMER & O'NEILL LLP 235 Pine Street, Suite 1300 San Francisco, CA 94104 Telephone: (415) 788-4646 Attorneys for Defendant and Counterclaimant Podfitness, Inc. 4

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