Affinity Labs of Texas, LLC v. Apple, Inc.

Filing 162

ORDER Granting 139 Stipulation Civil Local Rule 6-2(a). Signed by Judge Claudia Wilken on 3/31/2011. (ndr, COURT STAFF) (Filed on 3/31/2011)

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Richard L. Seabolt, Esq. (SBN 67469) DUANE MORRIS LLP Spear Tower One Market Plaza, Suite 2200 San Francisco, CA 94105-1127 Telephone: [phone] Facsimile: 415.957.3001 E-Mail: [e-mail] L. Norwood Jameson (admitted pro hac vice) Matthew C. Gaudet (admitted pro hac vice) DUANE MORRIS LLP ATLANTIC CENTER PLAZA 1180 West Peachtree Street NW, Suite 700 Atlanta, GA 30309-3448 Telephone: [phone] Facsimile: 404.253.6901 E-mail: [e-mail] E-mail: [e-mail] Thomas W. Sankey, Esq. (admitted pro hac vice) Jordan T. Fowles (admitted pro hac vice) DUANE MORRIS LLP 1330 Post Oak Boulevard, Suite 800 Houston, Texas 77056 Telephone: [phone] Facsimile: 713.402.3901 E-mail: [e-mail] E-mail: [e-mail] Attorneys for Plaintiff Affinity Labs of Texas, LLC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION AFFINITY LABS OF TEXAS, LLC, a Texas Limited Liability Company, Plaintiff and Counterclaim-Defendant, v. APPLE INC., a California Corporation, Defendant and Counterclaim-Plaintiff. CASE NO. CV 09-4436-CW CIVIL LOCAL RULE 6-2(a) STIPULATION AND ORDER Judge: Hon. Claudia Wilken

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CIVIL LOCAL RULE 6-2(a) STIPULATION AND [PROPOSED] ORDER

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IT IS HEREBY STIPULATED by and between Plaintiff Affinity Labs of Texas, LLC ("Affinity") and Defendant Apple Inc. ("Apple") as follows: WHEREAS, the Joint Case Management Statement submitted by the parties and adopted by the Court included a limit of 70 hours for depositions for each party; WHEREAS, a disagreement has arisen as to whether Affinity has used 70 hours of deposition time in this case; and WHEREAS, the parties have reached an agreement on how to proceed with deposition discovery and certain other third party discovery, as described below; NOW, THEREFORE, IT IS HEREBY STIPULATED BY AND BETWEEN THE PARTIES HERETO, THROUGH THEIR RESPECTIVE COUNSEL AND SUBJECT TO THE APPROVAL OF THE COURT, AS FOLLOWS: 1. Beginning as of the date that this Stipulation is submitted by the parties, Apple shall not oppose, and Affinity shall not seek more than, an additional 6 depositions of third parties currently under subpoena, including Anthony Fadell, James Geier, Clay Cowgill, Pandora, AT&T, and one additional software application developer, subject to Paragraph 5 below. This stipulation is not intended to alter the rights of third parties to seek relief from the Court pertaining to Affinity's subpoena on any basis other than an allegation that Affinity has exceeded the permitted number of deposition hours under the Joint Case Management Statement (which is hereby amended with respect to deposition hours to permit the hours of depositions set forth in this Stipulation). 2. Apple shall not oppose, and Affinity shall not seek more than, 5 hours on the record during the deposition of Mr. Fadell and 2.5 hours each on the record for the other five depositions referenced in the previous paragraph. 3. No depositions shall be taken after March 21, 2011 (absent further order of this Court in resolving a motion for Protective Order filed by a third party or an Order or agreement relating to Paragraph 5 below), except that (a) Apple will not oppose Affinity's efforts to take the depositions of Mr. Fadell, Mr. Geier, Pandora, and
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AT&T as soon as possible after the March 21, 2011 fact discovery deadline, if they cannot be scheduled before then, and (b) Apple will not oppose Affinity's efforts to take the deposition of the one additional software developer after the March 21, 2011 fact discovery deadline. Notwithstanding the foregoing, Affinity will

complete the depositions described in Paragraph 1 at least one week prior to Apple's rebuttal expert report on non-infringement unless otherwise directed by the Court's order. 4. Affinity shall not be permitted to depose during the remainder of this case any Apple employees, except that the parties mutually agree to reserve their rights and objections as to the deposition of an individual identified in a letter between the parties dated March 16, 2011, which is not subject to any of the terms in this Stipulation. 5. If either party believes that it needs any additional deposition discovery in the case beyond what is set forth in the previous paragraphs, the party shall be permitted to move for a maximum of 3 additional depositions not to exceed 2.5 hours each on the record, and such relief will only be granted on a showing of good cause. To the extent permitted by the Court, these depositions will be for the sole purpose of authenticating third-party documents and, if accurate, establishment of the "business record" status of these documents. If it believes it has good cause, Affinity shall also be permitted to move to compel document discovery from subpoenaed software application developers up to 14 days after the March 21, 2011 fact discovery cut-off, to which motions all defenses are reserved (except for a
defense that such motion was filed after the fact discovery cut-off).

6. Neither party can use the timing of Mr. Fadell's deposition as a basis to supplement an expert report. To the extent that Mr. Fadell's testimony is presented at trial, any party's expert is permitted to comment that Mr. Fadell's trial testimony is consistent with a specific, previously reported opinion of the expert. With respect to Pandora (whose counsel has indicated it will not be available for deposition -2CIVIL LOCAL RULE 6-2(a) STIPULATION AND [PROPOSED] ORDER

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before March 21, 2011), AT&T (who has filed for a motion for protective order), and the additional one software application developer referenced in Paragraph 1 above, any supplementation of reports shall be limited to a string cite of Bates numbers and/or deposition testimony to support specific, previously reported opinions. It is the parties' understanding that Mr. Cowgill will be made available for deposition before the end of fact discovery, and therefore supplementation should not be an issue for Mr. Cowgill's testimony. Additionally, it is the party's expectation that Mr. Geier's testimony will be relied on for Affinity's rebuttal validity report, and the parties expect the deposition to be completed before the deadline for Affinity's rebuttal validity report; in the event Mr. Geier's deposition is not completed before that date, supplementation of Affinity's rebuttal validity report shall be limited to a string cite of Bates numbers and/or deposition testimony to support specific, previously reported opinions. 7. The parties will work together in good faith to obtain and not object to (i) the authentication of third-party documents through a declaration, and (ii) if accurate, the establishment of "business record" status of third party documents (for purposes of a hearsay exception) through a declaration. Dated: March 16, 2011 RICHARD L. SEABOLT L. NORWOOD JAMESON MATTHEW C. GAUDET DUANE MORRIS LLP

By: /s/ Matthew C. Gaudet Matthew C. Gaudet Attorneys for Plaintiff AFFINITY LABS OF TEXAS, LLC

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Pursuant to General Order No. 45 X(B), I hereby attest that concurrence in the filing of this document has been obtained from Darin Snyder.

Dated: March 16, 2011

RICHARD L. SEABOLT L. NORWOOD JAMESON MATTHEW C. GAUDET DUANE MORRIS LLP

By: /s/ Matthew C. Gaudet Matthew C. Gaudet Attorneys for Plaintiff AFFINITY LABS OF TEXAS, LLC Dated: March 16, 2011 GEORGE A. RILEY DARIN SNYDER RYAN K. YAGURA DARIN J. GLASSER NICHOLAS J. WHILT O'MELVENY & MYERS LLP

By: /s/ Darin Snyder Darin Snyder Attorneys for Defendant APPLE INC. PURSUANT TO STIPULATION, IT IS SO ORDERED,

3/31/2011 Dated:______________

_______________________________________ Honorable Claudia Wilken United States District Judge

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