Brandywine Communications Technologies, LLC v. AT&T Corp. et al

Filing 106

ORDER by Judge Claudia Wilken Granting 97 Stipulation and Joint Motion to Amend Case Schedule or Alternatively Request for a Further Case Management Conference. (ndr, COURT STAFF) (Filed on 11/18/2013)

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All Counsel Listed On Signature Page

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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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BRANDYWINE COMMUNICATIONS
TECHNOLOGIES, LLC,
Plaintiff,

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v.

Civil Action No. 4-12-02494 CW
PARTIES’ STIPULATION AND JOINT
MOTION TO AMEND CASE SCHEDULE
OR ALTERNATIVELY REQUEST FOR A
FURTHER CASE MANAGEMENT
CONFERENCE

AT&T CORP, et al.,
Defendants.

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Plaintiff Brandywine Communications Technologies, LLC (“Brandywine”) and Defendants

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AT&T Corp. and SBC Internet Services, Inc. (“Defendants”), (collectively the “Parties”) hereby

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stipulate and respectfully submit this stipulation and joint motion to amend certain dates in the case

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schedule, while preserving the mediation deadline, final pretrial conference, and trial date in the

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current case schedule; or alternatively request for a further case management conference

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(“Stipulation”). In support, the Parties state as follows:

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On June 13, 2013, the Court issued an Order temporarily staying this case pending a

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decision by the Judicial Panel on Multidistrict Litigation (“JPML”) on Brandywine’s motion to

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consolidate. (Dkt. No. 81.) On August 8, 2013, the JPML denied Brandywine’s motion. (See Dkt.

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No. 82.) On August 12, 2013, the Court lifted the stay and reset the claim construction hearing that

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had been scheduled for June 27, 2013 to September 5, 2013. (Dkt. No. 83). On August 26, 2013,

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the Parties filed a Stipulation and Joint Motion to Amend Case Schedule. (Dkt. No. 86.) The next

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day, the stipulation was granted in part. (Dkt. No. 87.) In particular, the meditation deadline, close

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of fact discovery, and due dates for expert reports were adjusted. (Id.) The other dates on the

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STIPULATION AND JOINT MOTION TO AMEND CASE SCHEDULE
CASE NO. 4-12-02494 CW

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schedule were left unchanged. (Id.) 1 On October 1, 2013, the Parties submitted a stipulation and

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joint motion to extend the case schedule by approximately three months. (Dkt. No. 95.) On

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October 7, 2013, the Court denied the stipulation. (Dkt. No. 96.)
Since receiving the Court’s denial of the Parties’ stipulation (Dkt. No. 95), the Parties have

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conferred and respectfully submit this Stipulation that seeks to amend the schedule as set forth in

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Attachment A in order to allow additional time for the Parties to complete necessary third party

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discovery while preserving the mediation deadline, final pretrial conference, and trial date in the

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current case schedule. The Parties state that there is good cause for this Stipulation for the

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following reasons.

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First, the Parties are currently in the process of coordinating discovery with numerous third

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parties, including over ten equipment vendors, seven inventors, and several other parties with prior

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and/or current interests in the asserted patents (collectively “Third Parties”). Because discovery of

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many of these Third Parties overlap with discovery required in other pending cases involving the

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asserted patents, Brandywine is attempting to coordinate discovery between several pending cases

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in order to reduce the burdens on these Third Parties (e.g., Brandywine is attempting to schedule

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depositions of inventors at the same time for multiple cases). The proposed schedule in

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Attachment A helps to better align the close of fact discovery with other pending cases in order to

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assist the Parties in scheduling Third Party discovery. Second, the additional time for discovery

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will assist the Parties in completing discovery that they were not able to complete during the time

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this case was stayed during the JPML proceedings. Third, the Parties’ Stipulation maintains the

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present deadlines for mediation, the final pre-trial conference, and trial date in order to maintain the

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current timeline to resolve this case and address any reservations the Court may have had to alter

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these deadlines in its denial of the Parties’ prior stipulation. (Dkt. No. 96.) The only date on the

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Court’s calendar the Parties’ Stipulation seek to change is the motion hearing on dispositive

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motions and further case management conference presently scheduled on April 17, 2014. The

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Parties’ Stipulation seeks to move this date two weeks until on or after May 1, 2014 at a time and

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The only other modification to the schedule occurred on September 27, 2012 when the Parties
filed a stipulation to extend the time to serve infringement and invalidity contentions. (Dkt. No.
60). That stipulation was entered on October 2, 2012. (Dkt. No. 61).
STIPULATION AND JOINT MOTION TO AMEND CASE SCHEDULE
CASE NO. 4-12-02494 CW

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date convenient for the Court. As a result, the Parties’ Stipulation allows the Parties to better

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schedule remaining discovery in a manner less burdensome on Third Parties while maintaining the

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overall case schedule and mediation deadline. In further support of this Stipulation, the Parties

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submit the attached declaration from Brandywine’s counsel as set forth in L.R. 6-2.

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Finally, should the Court find that this proposed amendment to the schedule is not

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acceptable, the Parties respectfully request a telephonic case management conference in order to

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allow the Parties to address any concerns the Court has with the Parties’ proposed Stipulation.

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IT IS SO STIPULATED.

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STIPULATION AND JOINT MOTION TO AMEND CASE SCHEDULE
CASE NO. 4-12-02494 CW

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Respectfully submitted,

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FARNEY DANIELS PC

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DATED: October 16, 2013
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By: /s/ Tim Devlin
Timothy Devlin (admitted pro hac vice)
Jonathan D. Baker (Cal. Bar No. 196062)
Brian H. VanderZanden (Cal Bar No. 233134)
Lei Sun (Cal. Bar No. 251304)
FARNEY DANIELS PC
800 S. Austin Ave., Suite 200
Georgetown, Texas 78626
Telephone: [phone]
Facsimile: [phone]
E-Mails: [e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
BRANDYWINE COMMUNICATIONS
TECHNOLOGIES, LLC

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KILPATRICK TOWNSEND & STOCKTON LLP

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DATED: October 16, 2013

By: /s/ Daniel S. Young
William H. Boice (admitted pro hac vice)
Russell A. Korn (admitted pro hac vice)
Daniel S. Young (admitted pro hac vice)
Robert J. Artuz (Cal. Bar No. 227789)
KILPATRICK TOWNSEND & STOCKTON LLP
1080 Marsh Road
Menlo Park, CA 94025
Telephone: [phone]
Facsimile:
[phone]
Emails:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants
AT&T CORP. and SBC INTERNET SERVICES, INC.
FILER’S ATTESTATION

Pursuant to Civil Local Rule 5-1(i)(3), Lei Sun, hereby attests that the concurrence in the
filing of this document has been obtained from the other signatories, which shall serve in lieu of
their signatures.
/s/ Lei Sun
Lei Sun
STIPULATION AND JOINT MOTION TO AMEND CASE SCHEDULE
CASE NO. 4-12-02494 CW

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ATTACHMENT A

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PARTIES’ PROPOSED AMENDED SCHEDULE

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EVENT

Current Schedule

Parties’ Proposal

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Mediation Deadline

11/1/13

No change

Close of Fact Discovery

12/6/13

1/17/14

Plaintiff Serves Opening Infringement and
Damages Expert Reports; Defendants Serve
Opening Invalidity Expert Report

12/13/13

1/24/14

Parties Serve Rebuttal Expert Reports

1/31/14

2/28/14

Expert Discovery Deadline

2/21/14

3/19/14

Plaintiff’s Opening Dispositive and Daubert
Motions Deadline

2/20/14

3/19/14

Defendants’ Dispositive and Daubert Motions and
Oppositions

3/13/14

4/2/14

Plaintiff’s Replies

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3/27/14

4/9/14

Defendants’ Last Round of Replies

4/3/14

4/16/14

Hearing on All Dispositive Motions

4/17/14
2:00 p.m.

On or after 5/1/14 as
set by the Court based
on its availability
On or after 5/1/14 as
set by the Court based
on its availability

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Further Case Management Conference

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4/17/14

Final Pretrial Conference

7/30/14
2:00 p.m.

No change

Jury Trial

8/11/14
8:30 a.m.

No change

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STIPULATION AND JOINT MOTION TO AMEND CASE SCHEDULE
CASE NO. 4-12-02494 CW

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ORDER
PURSUANT TO STIPULATION, IT IS SO ORDERED:

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11/18/2013
DATED: ______________________

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_____________________________________
Hon. Claudia Wilken
United States District Court Judge

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STIPULATION AND JOINT MOTION TO AMEND CASE SCHEDULE
CASE NO. 4-12-02494 CW

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Timothy Devlin (admitted pro hac vice)
Jonathan D. Baker (Cal. Bar No. 196062)
Brian H. VanderZanden (Cal Bar No. 233134)
Lei Sun (Cal. Bar No. 251304)
FARNEY DANIELS PC
800 S. Austin Ave., Suite 200
Georgetown, Texas 78626
Telephone: [phone]
Facsimile: [phone]
E-Mails: [e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants
BRANDYWINE COMMUNICATIONS TECHNOLOGIES, LLC

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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BRANDYWINE COMMUNICATIONS
TECHNOLOGIES, LLC,
Plaintiff,

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v.
AT&T CORP, et al.,

Civil Action No. 4-12-02494 CW
DECLARATION OF LEI SUN IN
SUPPORT OF PARTIES’ STIPULATION
AND JOINT MOTION TO AMEND CASE
SCHEDULE OR ALTERNATIVELY
REQUEST FOR A FURTHER CASE
MANAGEMENT CONFERENCE

Defendants.

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DECLARATION IN SUPPORT OF THE PARTIES’
STIPULATION TO AMEND CASE SCHEDULE
CASE NO. 4-12-02494 CW

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I, Lei Sun, declare as follows:

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I am an attorney in the firm Farney Daniels PC, and one of the attorneys for Plaintiff

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Brandywine Communications Technologies, LLC (“Plaintiff”). I have personal knowledge of the

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matters stated herein and, if called as a witness, could competently testify thereto under oath.
2.

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The Parties stipulate and move to amend the case schedule or alternatively request

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for a further case management conference as set forth in Attachment A to the Parties’ Stipulation

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and Joint Motion to Amend Case Schedule or Alternatively Request For A Further Case

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Management Conference (“Stipulation”).
3.

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The schedule in this case has previously been amended as follows. On June 13,

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2013, the Court issued an Order temporarily staying this case pending a decision by the Judicial

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Panel on Multidistrict Litigation (“JPML”) on Brandywine’s motion to consolidate. (Dkt. No. 81.)

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On August 8, 2013, the JPML denied Brandywine’s motion. (See Dkt. No. 82.) On August 12,

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2013, the Court lifted the stay and reset the claim construction hearing that had been scheduled for

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June 27, 2013 to September 5, 2013. (Dkt. No. 83). On August 26, 2013, the Parties filed a

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Stipulation and Joint Motion to Amend Case Schedule. (Dkt. No. 86.) The next day, the stipulation

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was granted in part. (Dkt. No. 87.) In particular, the meditation deadline, close of fact discovery,

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and due dates for expert reports were adjusted. (Id.) The other dates on the schedule were left

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unchanged. (Id.) 1 On October 1, 2013, the Parties submitted a stipulation and joint motion to

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extend the case schedule by approximately three months. (Dkt. No. 95.) On October 7, 2013, the

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Court denied the stipulation. (Dkt. No. 96.)
4.

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There is good cause for the continuance because the Parties are currently in the

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process of coordinating discovery with numerous third parties, including over ten equipment

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vendors, seven inventors, and several other parties with prior and/or current interests in the asserted

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patents (collectively “Third Parties”). Because discovery of many of these Third Parties overlap

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with discovery required in other pending cases involving the asserted patents, Brandywine is

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The only other modification to the schedule occurred on September 27, 2012 when the Parties filed
a stipulation to extend the time to serve infringement and invalidity contentions. (Dkt. No. 60).
That stipulation was entered on October 2, 2012. (Dkt. No. 61).
DECLARATION IN SUPPORT OF THE PARTIES’
STIPULATION TO AMEND CASE SCHEDULE
CASE NO. 4-12-02494 CW

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attempting to coordinate discovery between several pending cases in order to reduce the burdens on

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these Third Parties (e.g., Brandywine is attempting to schedule depositions of inventors at the same

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time for multiple cases). The proposed schedule in Attachment A helps to better align the close of

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fact discovery with other pending cases in order to assist the Parties in scheduling Third Party

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discovery.

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5.

There further is good cause for the continuance because the additional time for

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discovery will assist the Parties in completing discovery that they were not able to complete during

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the time this case was stayed during the JPML proceedings.

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6.

Finally, there is good cause for the continuance because the Parties’ Stipulation

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maintains the present deadlines for mediation, the final pre-trial conference, and trial date in order

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to maintain the current timeline to resolve this case and address any reservations the Court may

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have had to alter these deadlines in its denial of the Parties’ prior stipulation. (Dkt. No. 96.) The

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only date on the Court’s calendar the Parties’ Stipulation seek to change is the motion hearing on

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dispositive motions and further case management conference presently scheduled on April 17,

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2014. The Parties’ Stipulation seeks to move this date two weeks until on or after May 1, 2014 at a

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time and date convenient for the Court. As a result, the Parties’ Stipulation allows the Parties to

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better schedule remaining discovery in a manner less burdensome on Third Parties while

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maintaining the overall case schedule and mediation deadline.

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7.

Thus, the Parties’ Stipulation does not affect the July 30, 2014 Final Pretrial

Conference date or the August 11, 2014 trial date set by Court order.
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For the reasons set forth above, good cause exists to amend the case schedule. The

Parties agree to the schedule set forth in Attachment A to the Parties’ Stipulation.

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DECLARATION IN SUPPORT OF THE PARTIES’
STIPULATION TO AMEND CASE SCHEDULE
CASE NO. 4-12-02494 CW

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I declare under penalty of perjury under the laws of the United States of America that the
foregoing statements are true and correct.
Executed this 16th day of October, 2013 at Georgetown, Texas.

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/s/ Lei Sun
Lei Sun

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Attorney for Plaintiff
BRANDYWINE COMMUNICATIONS
TECHNOLOGIES, LLC

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DECLARATION IN SUPPORT OF THE PARTIES’
STIPULATION TO AMEND CASE SCHEDULE
CASE NO. 4-12-02494 CW

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