Netlist, Inc. v. Google Inc.

Filing 39

SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT, filed by Google Inc., Netlist, Inc.. (Altersohn, Allison) (Filed on 3/30/2010) Modified on 3/31/2010 (jlm, COURT STAFF).

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Adrian M. Pruetz (CA Bar No. 118215/[e-mail]) Erica J. Pruetz (CA Bar No. 227712/[e-mail]) PRUETZ LAW GROUP LLP 200 N. Sepulveda Blvd., Suite 1525 El Segundo, CA 90245 Telephone: [phone] Facsimile: [phone] Enoch H. Liang (CA Bar No. 212324/[e-mail]) Steven R. Hansen (CA Bar No. 198401/[e-mail]) Edward S. Quon (CA Bar No. 214197/[e-mail]) LEE TRAN & LIANG PLC 601 S. Figueroa St., Suite 4025 Los Angeles, CA 90017 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff, NETLIST, INC. TIMOTHY T. SCOTT (CA Bar No. 126971/[e-mail]) GEOFFREY M. EZGAR (CA Bar No. 184243/[e-mail]) LEO SPOONER III (CA Bar No. 241541/[e-mail]) KING & SPALDING LLP 333 Twin Dolphin Drive, Suite 400 Redwood Shores, CA 94065 Telephone: [phone] Facsimile: [phone] SCOTT T. WEINGAERTNER (pro hac vice/[e-mail]) ROBERT F. PERRY ([e-mail]) ALLISON ALTERSOHN (pro hac vice/[e-mail]) SUSAN KIM (pro hac vice/[e-mail]) MARK H. FRANCIS (pro hac vice/[e-mail]) DANIEL MILLER (pro hac vice/[e-mail]) King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant, GOOGLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (OAKLAND DIVISION) NETLIST, INC., Plaintiff, v. GOOGLE INC., Defendant.
SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT

Case No. C 09-05718 SBA SUPPLEMENTAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT Date: April 1, 2010 Time: 3:15 p.m Dept.: Telephonic 1

CASE NO. C 09-5718 SBA

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AND RELATED COUNTERCLAIMS. Netlist, Inc. ("Netlist") and Google Inc. ("Google") hereby respectfully submit the following Supplemental Joint Case Management Statement. 9. Discovery C. Discovery Schedule

The parties proposed the following schedule for the case through trial, which includes the schedule for discovery: EVENT
Infringement Contentions under 3-1

DATE
3/18/10 4/30/10 5/14/10

Invalidity Contentions under 3-3

Exchange Proposed Claim Terms under 4-1

Exchange Preliminary Constructions and Extrinsic Evidence under 4-2

6/4/10

Joint Clam Construction and Prehearing Statement under 4-3

6/25/10

End of Claim Construction Discovery under 4-4

7/9/10

Opening Claim Construction Brief

7/16/10

Responsive Claim Construction Brief

8/4/10

Reply

8/16/10

Tutorial/Markman Hearing

8/31/10 10/13/10

Notice re Advice of Counsel

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EVENT
Fact Discovery Cutoff

DATE
12/17/10

Expert Designations: Each party serves expert reports on those issues for which the party has the burden of proof Expert Designations: Each party serves responsive expert report(s) addressing the other party's report(s) Expert Discovery Completed

1/14/11

1/28/11

2/11/11 3/4/11

Motion Cutoff Mandatory Settlement Conference

3/29/11 5/13/11 6/13/11

Pretrial Conference Trial Commences

Google's Position: In the Joint Case Management Statement filed with the Court on February 22, 2010 (Docket No. 33), the parties agreed to and proposed the case schedule set forth above under paragraph 9(c). Notwithstanding this agreement, Google believes that it is appropriate to bring to the Court attention in advance of the April 1, 2010 Case Management Conference that Netlist has not complied with the agreed-upon deadlines in this schedule. In particular, while Google served its initial disclosures on March 10, 2010 as provided for under paragraph 8 (and Fed. R. Civ. P. 26(a)(1)(A)), Netlist did not. Rather, Netlist served them on March 22, 2010, and only after Google first brought the delay to Netlist's attention. In addition, Plaintiff Netlist has not yet served its preliminary infringement contentions, which the parties had agreed, and had proposed to this Court, would be served on March 18, 2010. Although Google's counsel has made repeated attempts to meet-and-confer with Netlist's counsel regarding these issues, Netlist's counsel has either been unavailable or unilaterally postponed the discussion until this morning, wherein counsel had a meet-and-confer . Given that the Court has not yet assigned
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a Magistrate Judge to handle discovery issues in this matter, Google is seeking assistance from the Court to enforce these deadlines and impose any remedies or relief it deems appropriate. Furthermore, Google does not believe any changes need to be made to the schedule outlined in paragraph 9(c). In fact, none have been identified by Netlist, which did not inform Google in advance that it would not adhere to the agreed upon schedule. Google is prepared to proceed with the case under the schedule presented to the Court. Netlist's Position: The deadline for providing infringement contentions under Patent Local Rule 3-1 is 14 days after the Court holds its Initial Case Management Conference. When the Court canceled the previously scheduled conference, Netlist understood that the deadline for providing infringement contentions would similarly be deferred. Netlist also made its understanding known to Google several weeks ago. Nevertheless, Netlist has repeatedly offered to modify the originally-proposed schedule to accommodate Google's concerns. To date, Google has neither identified those concerns nor identified any alleged prejudice from cooperatively modifying the schedule. Nor has Google explained why it is purportedly imperative to adhere to the proposed schedule. At the Court is aware, this case is related to co-pending Case No. 08-04144-SBA (the `386 Case) which concerns U.S. Patent No, 7,289,386, a parent to U.S. Patent No. 7,619,912 that is the subject of the present action. Discovery closes on March 30, 2010 in the `386 Case. During the last several weeks, Netlist has finally been able to obtain discovery needed to amend and more fully specify the nature of its infringement contentions in the `386 Case. This information will inform and will be included in the infringement contentions served in the present action, since the accused products are identical in the two cases. Netlist provided its amended infringement contentions in the `386 Case to Google on March 18, 2010. Netlist also explained that any delay in providing infringement contentions in the present action would ultimately inure to Google's benefit in the form of more fully developed and specified infringement contentions. Netlist's amendment of its infringement contentions in the `386 Case is the subject of a motion for leave to amend filed on March 30, 2010.

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Google's apparent position is that the parties' proposed schedule became binding notwithstanding the fact that the Court did not enter it. Netlist disagrees, as many of the proposed deadlines are based on the Court's calendar and cannot be the subject of a stipulation absent Court order. Netlist remains willing to discuss and accommodate any legitimate scheduling concerns that Google may have. However, Google has yet to identify them. Google's proposal (as set forth above) to adhere to the existing schedule appears impractical given that it specifies a March 18 deadline for providing infringement contentions. Google states that it wishes to "enforce" the proposed schedule but has not specified what such "enforcement" would entail. The parties met and conferred telephonically on March 30, 2010, and Google could not explain what "enforcement" it sought. Contrary to Google's statements herein, Netlist has actively engaged in a written meet and confer process with Google since Google first raised the issue of enforcing the proposed schedule on March 12. On Thursday, March 25, 2010, Google's counsel demanded a telephonic meet and confer to be held with Netlist's counsel the next day, Friday March 26, 2010, despite the fact that Netlist's counsel was traveling that day. The parties agreed to a telephonic discussion on March 29, 2010. Netlist's counsel had to postpone the discussion by one day to prepare for and travel to a deposition of JEDEC on March 30, 2010, the date for which Google's counsel provided confirmation on the evening of March 25, 2010. Netlist's counsel informed Google's counsel that Netlist's counsel would be in the Washington D.C. office of Google's counsel on March 30, 2010 for the JEDEC deposition and that the parties could meet and confer in person or by phone then. On the morning of March 30, 2010, the parties met and conferred telephonically. Thus, Netlist has actively engaged in the meet and confer process and has attempted to arrive at a mutually satisfactory resolution of the parties' differing views. Netlist requests that the Court set a deadline for its infringement contentions in accordance with the completion of the Initial Case Management Conference and the 14-day deadline set forth in Patent Local Rule 3-1 and that it make any other adjustments to the originally-proposed schedule as may be necessary in view thereof.

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SUPPLEMENTAL JOINT CASE MANAGEMENT STATEMENT

Dated: March 30, 2010

ADRIAN M. PRUETZ PRUETZ LAW GROUP LLP

By: /s/ Adrian M. Pruetz ADRIAN M. PRUETZ Attorneys for Plaintiff NETLIST, INC.

Dated: March 30, 2010

KING & SPALDING LLP

By: /s/ Allison Altersohn_________________ ALLISON ALTERSOHN (pro hac vice) Attorneys for Defendant GOOGLE INC.

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DECLARATION OF CONSENT Pursuant to General Order No. 45, Section X(B) regarding signatures, I attest under penalty of perjury that concurrence in the filing of this document has been obtained from Adrian Pruetz.

KING & SPALDING LLP By: /s/ Allison Altersohn ALLISON ALTERSOHN (pro hac vice) Attorneys for Defendant GOOGLE INC.

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