Apple Computer, Inc. v. Podfitness, Inc.

Filing 86

Declaration of David J. Miclean in Support of 85 Memorandum in Opposition to Defendant's Motion for Administrative Relief Extending Pretrial Deadlines filed byApple Computer, Inc.. (Related document(s) 85 ) (Martens, Lisa) (Filed on 12/13/2007)

Apple Computer, Inc. v. Podfitness, Inc.

Doc. 86

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David J. Miclean (#115098/[e-mail]) FISH & RICHARDSON P.C. 500 Arguello Street, Suite 500 Redwood City, California 94063 Telephone: [phone] Facsimile: [phone] Lisa M. Martens (#195824/[e-mail]) Andrew M. Abrams (#229698/[e-mail]) FISH & RICHARDSON P.C. 12390 El Camino Real San Diego, California 92130 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff and Counterclaim Defendant APPLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (OAKLAND DIVISION) APPLE INC., Plaintiff, v. PODFITNESS, INC., and DOES 1-100, inclusive, Defendants. PODFITNESS, INC., Counterclaim Plaintiff v. APPLE INC., Counterclaim Defendant Case No. C 06-5805 SBA DECLARATION OF DAVID J. MICLEAN IN SUPPORT OF APPLE INC.'S OPPOSITION TO DEFENDANT'S MOTION FOR ADMINISTRATIVE RELIEF EXTENDING PRETRIAL DEADLINES Honorable Saundra B. Armstrong

I, David J. Miclean, declare as follows: 1. I am a principal of Fish & Richardson P.C., counsel of record in this action for 1
DECLARATION OF DAVID J. MICLEAN IN SUPPORT OF APPLE INC.'S OPPOSITION TO DEFENDANT'S MOTION FOR ADMINISTRATIVE RELIEF EXTENDING PRETRIAL DEADLINES Case No. C 06-5805 SBA

Dockets.Justia.com

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Apple Computer, Inc. ("Apple"). I am a member of the Bar of the State of California and am admitted to this Court. I have personal knowledge of the matters stated in this declaration and would testify truthfully to them if called upon to do so. 2. Apple initially requested a trial date in June 2008 (which the court granted), while

Podfitness proposed a trial date in November of 2008. Since the trial date was set, Podfitness filed two separate motions to stay the litigation, the former of which was rejected by this Court on May 10, 2007. 3. On September 26, 2007, Podfitness' then-in-house attorney Steve Hutchinson

filed a declaration purporting to support a motion to stay the case. This stand-alone declaration represented an invalid attempt to request a stay from the Court under Local Rules 7-1 and 7-2 (requiring a party seeking to stay a case to file a notice of the motion, set a date and time of hearing, and submit a memorandum of points and authorities) 4. Apple was forced to file a Motion to Compel the Depositions of Jeff Hays and

Teri Sundh on October 30, 2007, and the Court granted Apple' s motion on December 10, 2007. 5. After Defendant' s outside counsel failed to return multiple voice and email

messages attempting to meet and confer regarding scheduling the depositions of Defendant' s employees, on July 27, 2007 Apple noticed the depositions of Defendant' s CEO, Teri Sundh, and its President, Jeff Hays. The depositions were noticed for the dates of September 5-6, 2007. In the approximately four months after Apple issued the notices, Defendant stated only that the dates are not acceptable, ignored repeated requests to propose alternate dates, and attempted to stay the case (twice) in an effort to further postpone the depositions. 6. On August 22, 2007 Defendant' s outside counsel emailed my firm, stating that

they were "still working on coordinating dates for the depositions of Teri Sundh and Jeff Hays that you have noticed for September 5th and 6th." We followed up on September 5, 2007 with another email requesting proposed dates for the depositions. Defendant' s outside counsel responded on that day with a promise to be in touch with Podfitness that week to get deposition dates. Defendant did not attempt to get in touch with Apple after this communication. 2
DECLARATION OF DAVID J. MICLEAN IN SUPPORT OF APPLE INC.' S OPPOSITION TO DEFENDANT' S MOTION FOR ADMINISTRATIVE RELIEF EXTENDING PRETRIAL DEADLINES Case No. C 06-5805 SBA

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7.

On October 2, 2007, we discussed with Podfitness' then-in-house counsel, Steve

Hutchinson, Podfitness' motion to stay proceedings and the deposition dates, which had still not been finalized, even though the dates for which they were noticed had passed. On October 3, 2007, we sent an email to Mr. Hutchinson, recapping the October 2, 2007 conversation. In the email, we stated our willingness to stipulate to a 30-day stay of the case so long as Podfitness agreed to set firm deposition dates for Ms. Sundh and Mr. Hays in mid-November. Then, on October 4, 2007, Mr. Hutchinson replied to this email, stating that Podfitness would evaluate the offer and get back to us with its answer shortly. Having received no further answer from Podfitness regarding our proposal, Apple was forced to file an opposition to Podfitness' motion to stay. 8. From July 2007 until December 5, 2007, not once did Podfitness discuss the

possibility of deposing Apple' s employees, though it had ample opportunity to do so. During this time period, not once did Podfitness serve any additional written discovery. The first time Podfitness even informally indicated that it wished to conduct a Rule 30(b)(6) deposition was on December 5, 2007. The first time Podfitness mentioned that it wished to extend the discovery period was also on this same date. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 13th day of December, 2007, at San Diego, California. /s/ David J. Miclean David J. Miclean

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DECLARATION OF DAVID J. MICLEAN IN SUPPORT OF APPLE INC.' S OPPOSITION TO DEFENDANT' S MOTION FOR ADMINISTRATIVE RELIEF EXTENDING PRETRIAL DEADLINES Case No. C 06-5805 SBA

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 ELECTRONIC MAIL:

PROOF OF SERVICE I am employed in the County of San Diego. My business address is Fish & Richardson P.C., 12390 El Camino Real, San Diego, California 92130. I am over the age of 18 and not a party to the foregoing action. I am readily familiar with the business practice at my place of business for collection and processing of correspondence for personal delivery, for mailing with United States Postal Service, for facsimile, and for overnight delivery by Federal Express, Express Mail, or other overnight service. On December 13, 2007, I caused a copy of the following document(s): DECLARATION OF DAVID J. MICLEAN IN SUPPORT OF APPLE INC.'S OPPOSITION TO DEFENDANT'S MOTION FOR ADMINISTRATIVE RELIEF EXTENDING PRETRIAL DEADLINES to be served on the interested parties in this action by placing a true and correct copy thereof, enclosed in a sealed envelope, and addressed as follows: James M. Wagstaffe Kerr & Wagstaffe LLP 100 Spear Street, Suite 1800 San Francisco, CA 94105-1528 Telephone: [phone] Facsimile: [phone] James E. Magleby Jason A. McNeill Magleby & Greenwood, P.C. 170 South Main Street, Suite 350 Salt Lake City, UT 84101-3606 Telephone: [phone] Facsimile: [phone] X MAIL: Attorneys For Defendant PODFITNESS, INC.

Attorneys For Defendant PODFITNESS, INC.

Such correspondence was deposited, postage fully paid, with the United States Postal Service on the same day in the ordinary course of business. Such document was transmitted by electronic mail to the addressees' email addresses as stated above.

I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. I declare under penalty of perjury that the above is true and correct. Executed on December 13, 2007, at San Diego, California. /s/Nicole C. Pino Nicole C. Pino 4
DECLARATION OF DAVID J. MICLEAN IN SUPPORT OF APPLE INC.' S OPPOSITION TO DEFENDANT' S MOTION FOR ADMINISTRATIVE RELIEF EXTENDING PRETRIAL DEADLINES Case No. C 06-5805 SBA