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

Filing 167

ORDER Granting 166 Stipulation Pursuant to Civil L.R. 6-2(a). Signed by Judge Claudia Wilken on 4/11/2011. (ndr, COURT STAFF) (Filed on 4/11/2011)

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GEORGE A. RILEY (S.B. #118304)
[e-mail]
DARIN W. SNYDER (S.B. #136003)
[e-mail]
O’MELVENY & MYERS LLP
Two Embarcadero Center, 28th Floor
San Francisco, California 94111-3823
Telephone:
[phone]
Facsimile:
[phone]
RYAN K. YAGURA (S.B. #197619)
[e-mail]
NICHOLAS J. WHILT (S.B. #247738)
[e-mail]
O’MELVENY & MYERS LLP
400 South Hope Street
Los Angeles, California 90071-2899
Telephone:
[phone]
Facsimile:
[phone]
DARIN J. GLASSER (S.B. #223788)
[e-mail]
O’MELVENY & MYERS LLP
610 Newport Center Drive
Newport Beach, California 92660
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant and Counterclaim-Plaintiff
Apple Inc.

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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AFFINITY LABS OF TEXAS, LLC, a
Texas Limited Liability Company,
Plaintiff and
Counterclaim-Defendant,

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CASE NO. CV 09-4436-CW
STIPULATION REGARDING
SUFFICIENCY OF CERTAIN
INTERROGATORY RESPONSES AND
EXPERT DISCOVERY; ORDER

v.
Judge: Hon. Claudia Wilken

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APPLE INC., a California Corporation,

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Defendant and
Counterclaim-Plaintiff.

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CV 09-4436-CW

STIPULATION RE SUFFICIENCY OF CERTAIN
INTERROGATORY RESPONSES AND EXPERT
DISCOVERY; [PROPOSED] ORDER

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IT IS HEREBY STIPULATED by and between Plaintiff and Counterclaim-Defendant

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Affinity Labs of Texas, LLC (“Affinity”) and Defendant and Counterclaim-Plaintiff Apple Inc.

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(“Apple”) as follows:

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WHEREAS, a disagreement has arisen as to the sufficiency of Affinity’s response to

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Apple Interrogatory No. 8 and the sufficiency of Apple’s response to Affinity Interrogatory

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No. 3;

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WHEREAS, a disagreement has arisen concerning when Apple made source code
available for Affinity’s inspection; and

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WHEREAS, the parties have reached agreement on how to proceed with supplemental

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expert reports and expert depositions in resolution of these disagreements, as described below:

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NOW, THEREFORE, IT IS HEREBY STIPULATED BY AND BETWEEN THE

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PARTIES HERETO, THROUGH THEIR RESPECTIVE COUNSEL AND SUBJECT TO THE

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APPROVAL OF THE COURT, AS FOLLOWS:

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1. Apple shall continue to make the source code available to Affinity and/or its

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experts after serving Apple’s rebuttal expert report on infringement so that (if

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Affinity chooses) Affinity’s expert (or a colleague authorized under the

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Protective Order) can inspect Apple’s source code. Affinity shall be entitled to

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serve a supplemental expert report by April 22, 2011, based solely upon

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Affinity’s expert’s review of source code set forth in this paragraph and

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limited in scope to rebutting positions set forth in Apple’s rebuttal expert

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report based on Apple’s source code;

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2. Affinity served on Apple on Friday, March 18, 2011, a supplemental response

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to Apple Interrogatory No. 8 identifying all grounds of which Affinity was

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aware that support Affinity’s contention that there are secondary indicia of

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non-obviousness. Affinity’s expert report on validity to be served on April 12,

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2011, shall also address the issue of secondary indicia of non-obviousness.

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Apple shall be entitled to serve a supplemental expert report by April 22, 2011,

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CV 09-4436-CW

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STIPULATION RE SUFFICIENCY OF CERTAIN
INTERROGATORY RESPONSES AND EXPERT
DISCOVERY; [PROPOSED] ORDER

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on the issue of validity limited in scope to rebutting positions set forth in

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Affinity’s expert report on the issue of secondary indicia of non-obviousness;

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3. Neither Affinity’s nor Apple’s expert shall be required to disclose in a written

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report any rebuttal to the supplemental reports on the issues of secondary

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indicia of non-obviousness or infringement, respectively. Both experts shall

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be required to disclose any such rebuttal testimony in response to questions in

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deposition and such rebuttal shall not include new opinions beyond those

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disclosed in the expert’s written reports; and

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4. The parties agree to move the close of expert discovery to May 3, 2011 to

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complete the depositions of Affinity’s and Apple’s technical expert(s).

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Dated: April 11, 2011

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GEORGE A. RILEY
DARIN W. SNYDER
RYAN K. YAGURA
DARIN J. GLASSER
NICHOLAS J. WHILT
O’MELVENY & MYERS LLP

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By: /s/ Darin J. Glasser
Darin J. Glasser

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Attorneys for Defendant and CounterclaimPlaintiff APPLE INC.

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Dated: April 11, 2011

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

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By:

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/s/ Matthew C. Gaudet
Matthew C. Gaudet

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Attorneys for Plaintiff and CounterclaimDefendant AFFINITY LABS OF TEXAS,
LLC

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CV 09-4436-CW

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STIPULATION RE SUFFICIENCY OF CERTAIN
INTERROGATORY RESPONSES AND EXPERT
DISCOVERY; [PROPOSED] ORDER

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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 Matt Gaudet.

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Dated: April 11, 2011

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GEORGE A. RILEY
DARIN W. SNYDER
RYAN K. YAGURA
DARIN J. GLASSER
NICHOLAS J. WHILT
O’MELVENY & MYERS LLP

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By: /s/ Darin J. Glasser
Darin J. Glasser

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Attorneys for Defendant and CounterclaimPlaintiff APPLE INC.

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PURSUANT TO STIPULATION, IT IS SO ORDERED:

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4/11/2011
Dated:______________

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_______________________________________
Honorable Claudia Wilken
United States District Judge

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LA2:927557.2

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CV 09-4436-CW

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STIPULATION RE SUFFICIENCY OF CERTAIN
INTERROGATORY RESPONSES AND EXPERT
DISCOVERY; [PROPOSED] ORDER