Elan Microelectronics Corporation v. Apple, Inc.

Filing 343

MOTION to Shorten Time for Elan Microelectronics Corporation's Motion to Compel Discovery Related to Apple iOS Applications for the Accused Products filed by Elan Microelectronics Corporation. (Attachments: # 1 Proposed Order)(Bu, Jane) (Filed on 7/15/2011)

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1 2 3 4 5 6 7 8 9 10 11 YITAI HU (SBN 248085) yitai.hu@alston.com SEAN P. DEBRUINE (SBN 168071) sean.debruine@alston.com ELIZABETH H. RADER (SBN 184963) elizabeth.rader@alston.com JANE HAN BU (SBN 240081) jane.bu@alston.com JENNIFER LIU (SBN 268990) celine.liu@alston.com PALANI P. RATHINASAMY (SBN 269852) palani.rathinasamy@alston.com ALSTON & BIRD LLP 275 Middlefield Road, Suite 150 Menlo Park, CA 94025-4008 Telephone: 650-838-2000 Facsimile: 650-838-2001 Attorneys for Plaintiff and Counterdefendant ELAN MICROELECTRONICS CORPORATION 12 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN FRANCISCO DIVISION 16 17 ELAN MICROELECTRONICS CORPORATION, 18 19 20 21 22 v. Plaintiff and Counterdefendant, APPLE, INC., Defendant and Counterplaintiff. Case No. 09-cv-01531 RS (PSG) ELAN MICROELECTRONICS CORPORATION’S MOTION TO SHORTEN TIME FOR ITS MOTION TO COMPEL DISCOVERY RELATED TO APPLE iOS APPLICATIONS FOR THE ACCUSED PRODUCTS JURY TRIAL DEMANDED AND RELATED COUNTERCLAIMS Hon. Paul Singh Grewal 23 24 25 26 27 28 ELAN’S MOT. TO SHORTEN TIME FOR ITS MOT. TO COMPEL Case No. 09-cv-01531 RS (PSG) Elan Microelectronics Corporation (“Elan”) respectfully submits this motion to shorten 1 2 time with respect to its Motion to Compel Apple Inc. (“Apple”) to Produce iOS Application 3 Related Discovery. Elan requests expedited briefing on its Motion to Compel so that the motion 4 can be heard on August 2, 2011. Elan requests that Apple’s file its Opposition on July 25, 2011 5 (Monday) with Elan’s reply due on July 28, 2011 (Thursday). The underlying discovery dispute is a very simple and straightforward issue. Elan requests 6 7 limited financial, sales and marketing data relating to Apple’s iOS applications (“iOS apps”) that 8 operate on the accused iOS products in this case.1 In particular, Elan seeks Apple’s financial data 9 for iOS apps that will permit Elan to compare the financial performance of iOS applications that 10 make use of the multifinger input features covered by Elan’s asserted patent to those that do not. 11 Elan is not requesting any technical discovery relating to the iOS applications themselves. Apple, 12 has refused to produce any financial data related to the iOS applications on relevance grounds, 13 because the iOS applications are not accused products in this case. As Elan has established in its 14 Motion filed concurrently herewith, the Federal Circuit has made clear in recent cases that 15 damages experts must provide “evidence tending to separate or apportion the defendant’s profits 16 and the patentee’s damages between the patented feature and the unpatented features.” Uniloc 17 USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1318 (Fed. Cir. 2011). Therefore, Elan requires the 18 iOS app discovery in order to generate the comparative profit information for products that do not 19 contain the accused functionality versus products that do. Good cause exists for Elan’s request to shorten time. Pursuant to the Stipulation and Order 20 21 Modifying Case Management Order, all fact discovery must be completed by August 12, 2011 22 and Elan’s damages expert report must be disclosed on September 9, 2011 (Dkt. No. 308). Elan 23 served Document Request Nos. 82-85 and Interrogatory Nos. 20-21 on April 12, 2011. Bu Decl, 24 Exs. A & B. On June 7, 2011, Elan served a 30(b)(6) deposition notice on Apple. Topic Nos. 17- 25 21 of that notice relate to the same iOS application discovery. Id. Ex. E. Elan met and conferred 26 27 28 1 As more fully discussed in the underlying Motion to Compel, “iOS” is Apple’s mobile operating system, which is used on many of the accused products, including iPhones, iPod Touch, and iPads. “iOS applications” or “iOS apps” are software applications that run on products using the iOS operating system, and are typically available for purchase from Apple through its on-line “App Store.” ELAN’S MOT. TO SHORTEN TIME FOR ITS MOT. TO COMPEL 1 Case No. 09-cv-01531 RS (PSG) 1 with Apple several times and offered its explanation as to why discovery relating to the iOS 2 applications is relevant, in an attempt to avoid the need to seek the Court’s intervention. Id. Exhs. 3 C, D, F. On June 23, 2011, Apple stated that it would consider Elan’s position and respond 4 promptly. On July 6, Elan reached out to Apple again, asking it to commit to a position on the 5 requested discovery. Bu Decl. Exh. F. Two days ago, on July 13, during a second telephonic 6 meet and confer, Apple finally made clear that it will not produce information responsive to these 7 discovery requests. Elan has no choice but to seek the Court’s assistance on this issue. Bu Decl. 8 Exh. D. Thus, Apple has had plenty of notice of this dispute and should have little trouble 9 responding to Elan’s motion to compel. 10 Due to Apple’s delay in telling Elan its final position until this week, there now remains 11 insufficient time before the disclosure of opening expert reports on September 9, 2011 for a full 12 35-day briefing schedule. Elan’s discovery requests, subject to the underlying motion to compel, 13 also include Rule 30(b)(6) deposition topics relating to Apple’s iOS application financial data. In 14 accordance with the regular 35-day hearing schedule, the earliest date the motion could be heard is 15 August 23, 2011, only three weeks before the deadline to disclose Elan’s damages expert report. 16 Even if the Court were to issue an order immediately after August 23 granting the motion, there 17 would not be sufficient time for Apple to produce the requested discovery, for Elan to have an 18 opportunity to meaningfully analyze it, and then to complete a deposition, all in time for Elan’s 19 damages expert to prepare her expert report. Therefore the hearing schedule must be shortened in 20 order to provide a meaningful and realistic time frame for Apple to produce the discovery, for 21 Elan to analyze the discovery and to take the fact witness deposition, and finally for Elan’s expert 22 to analyze the data and prepare her report. Further, Elan would have attempted to notice a hearing 23 on either August 9 or even August 16 to reduce any alleged burden Apple may claim to file an 24 opposition. However, according to the Court’s calendar, Magistrate Judge Grewal will be 25 unavailable for hearings on these days. Therefore, Elan could not have scheduled a hearing any 26 other time in August before the 23rd, and August 2nd is the only available date for the Court to 27 consider Elan’s motion to compel for this issue. 28 Apple opposes the motion to shorten briefing time and points to Local Rule 37-3, which ELAN’S MOT. TO SHORTEN TIME FOR ITS MOT. TO COMPEL 2 Case No. 09-cv-01531 RS (PSG) 1 permits a party to file a fully noticed motion to compel on a normal 35-day briefing schedule 2 seven days after the fact discovery cutoff. As discussed above, however, if Elan notices a hearing 3 on the usual 35-day briefing schedule, there will not be sufficient time to resolve this issue, and if 4 Elan prevails, to complete the withheld discovery before Elan must serve its opening damages 5 expert report. 6 Accordingly, Elan hereby requests an expedited briefing schedule on its Motion to Compel 7 Apple iOS Application Discovery, wherein the motion will be heard on August 2, 2011 with 8 Apple’s opposition due on July 25, 2011 and Elan’s reply due on July 28. 9 DATED: July 15, 2011 10 Respectfully submitted, ALSTON & BIRD LLP 11 12 By: 13 14 LEGAL02/32743591v2 /s/ Jane H Bu Jane H Bu Attorneys for Plaintiff and Counterdefendant ELAN MICROELECTRONICS CORPORATION 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELAN’S MOT. TO SHORTEN TIME FOR ITS MOT. TO COMPEL 3 Case No. 09-cv-01531 RS (PSG)

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