Elan Microelectronics Corporation v. Apple, Inc.

Filing 344

RESPONSE (re 343 MOTION to Shorten Time for Elan Microelectronics Corporation's Motion to Compel Discovery Related to Apple iOS Applications for the Accused Products ) filed byApple, Inc.. (Walter, Derek) (Filed on 7/18/2011)

1
2
3

MATTHEW D. POWERS (Bar No. 104795)
[e-mail]
201 Redwood Shores Parkway, Suite 401
Redwood Shores, CA 94065
Telephone: [phone]
Facsimile: [phone]

4
5
6
7
8
9
10
11
12

JARED BOBROW (Bar No. 133712)
[e-mail]
SONAL N. MEHTA (Bar No. 222086)
[e-mail]
DEREK C. WALTER (Bar. No. 246322)
[e-mail]
NATHAN GREENBLATT (Bar No. 262279)
[e-mail]
WEIL, GOTSHAL & MANGES LLP
Silicon Valley Office
201 Redwood Shores Parkway
Redwood Shores, CA 94065
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant and Counterclaim Plaintiff
Apple Inc.

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

SAN JOSE DIVISION

16
17

ELAN MICROELECTRONICS
CORPORATION,

18

Plaintiff and Counterclaim
Defendant,

19
v.
20
APPLE INC.,
21
22

Defendant and Counterclaim
Plaintiff.

Case No. C-09-01531 RS (PSG)
APPLE’S OPPOSITION TO 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
Hon. Paul Singh Grewal

23
24
25
26
27
28
APPLE’S OPPOSITION TO ELAN’S MOTION TO SHORTEN
TIME

Case No. C-09-01531 RS (PSG)

1

Pursuant to Civil Local Rule 6-3(c), Apple opposes Elan’s Motion to Shorten Time for Its

2

Motion to Compel Discovery Related to Apple iOS Applications for the Accused Products

3

(“Motion to Shorten Time”). This action has been pending since April 2009, yet Elan waited

4

until April 12, 2011 to propound any discovery requests whatsoever related to iOS Apps. After

5

Apple first objected and declined to provide discovery into this topic based on its objections on

6

May 12, 2011, Elan then waited until June 10, 2011—roughly one month later—to make even an

7

initial follow up. Elan’s failure to promptly and diligently pursue discovery on Apple iOS Apps

8

until the eve of the close of fact discovery cannot be squared with its last-minute request that both

9

Apple and the Court now process its motion on an expedited basis. Indeed, to the extent Elan

10

now feels prejudiced in its ability to pursue discovery into iOS Apps, it is a prejudice that is

11

entirely of Elan’s own making. Regardless, as set forth below, Elan will suffer no substantial

12

harm or prejudice if its motion to compel—which is standard in every way—is heard according to

13

a normal briefing schedule. Accordingly, Apple opposes Elan’s motion to shorten time and

14

requests that the Court hear Elan’s motion on a normal 35 day briefing schedule.

15

I.

16

THERE IS NO GENUINE URGENCY ASSOCIATED WITH ELAN’S REQUEST FOR
DISCOVERY INTO IOS APPS

17
18

It is clear that there is no genuine urgency associated with Elan’s request for discovery

19

related to iOS Apps. Although this action has been pending for over two years, it was not until

20

April 12, 2011 that Elan first propounded any discovery requests related to iOS Apps. After

21

Apple initially declined to provide discovery into this topic on May 12, 2011, Elan waited until

22

June 10, 2011 to follow up on the issue in any way. See Dkt. No 342, Exhs. B-C. After this, it

23

was not until June 22, 2011 that Elan articulated to Apple for the first time a strained theory as to

24

why it believed discovery into iOS Apps might be relevant. Id., Exh. D. Thus, after years of

25

delay, Elan decided to pursue discovery into iOS Apps only within the last few months, wasting

26

weeks of additional time in the process. 1 Elan’s delay in pursuing discovery into Apple iOS Apps

27

1

28

Notably, this is not the first instance of Elan delaying in its efforts to even make an initial
effort to pursue discovery on an issue. Specifically, with regard to discovery related to Apple’s
testing tool, which this Court heard oral argument on in early June, it was also not until this case
APPLE’S OPPOSITION TO ELAN’S MOTION TO SHORTEN
TIME

1

Case No. C-09-01531 RS (PSG)

1

cannot be squared with its instant request that Apple and the Court now process its motion to

2

compel discovery on this issue on an expedited basis. This alone confirms that there is no basis

3

for Elan’s motion to shorten time.

4

In fact, as set forth below, it is unsurprising that Elan has delayed so long in even

5

initiating efforts to seek discovery related to iOS Apps. Indeed, iOS Apps are not accused of

6

infringement in this case, and they undisputedly do not carry out the accused functionality. Elan

7

has even confirmed in meet and confer that it has no intention of accusing them of infringement

8

or adding them to the case as accused products. See Declaration of Derek C. Walter In Support of

9

Apple’s Opposition Elan’s Motion to Shorten Times for Its Motion to Compel Discovery Related

10

to Apple iOS Applications (“Walter Decl.”) ¶ 2. As Elan explained in its motion to compel, the

11

only reason Elan seeks discovery related to iOS Apps is so that it can carry out some sort of

12

analysis that it believes may shed light on the value of Apple’s Multitouch™ software, which will

13

be at most one small aspect of its damages expert report. 2 Simply put, Elan’s motion to compel

14

seeks discovery on a secondary issue, that was not even important enough for Elan to mention

15

until two years into the case. These circumstances do not call for an expedited briefing schedule.

16

II.

17

ELAN WOULD SUFFER NO PREJUDICE IF ITS MOTION IS HEARD ON A NORMAL
BRIEFING SCHEDULE

18
19

Civil Local Rule 6-3(a)(3) requires that Elan identify “substantial harm or prejudice that

20

would occur if the Court” does not shorten the briefing schedule for its Motion to Stay. Elan

21

identifies nothing remotely approaching substantial harm or prejudice. The only basis Elan

22

identifies for shortening time is a concern that if its motion is heard on a regular briefing schedule

23
24
25
26
27
28

had been pending for roughly two years that Elan decided to pursue discovery in earnest. In that
instance, Elan requested an emergency discovery hearing on a last minute basis, simply so that it
could avoid having to purchase an additional airline ticket for its expert witness. There was
plainly no emergency associated with that motion, and there is even less of an emergency
associated with this motion.
2

In fact, as Apple will explain in its opposition to Elan’s motion to compel, Elan cannot
reasonably hope to acquire any sort of meaningful information from the sort of analysis it
describes in its motion to compel, and the information Elan seeks is ultimately irrelevant.
APPLE’S OPPOSITION TO ELAN’S MOTION TO SHORTEN
TIME

2

Case No. C-09-01531 RS (PSG)

1

it may not receive discovery sufficiently in advance of opening expert reports as it would like. 3

2

However, as noted above, to the extent Elan now has concerns that it might be squeezed during

3

the preparation of one aspect of its expert report, this is a situation that is entirely of Elan’s own

4

making, and the parties and the Court should not now be required to proceed on a hurried basis.

5

This is particularly true because Elan’s proposed schedule would have Apple respond to its

6

motion on shortened time when the parties are already extremely busy trying to complete

7

discovery by the August 12, 2011 fact discovery cutoff—efforts that have been substantially

8

delayed by Elan’s own discovery conduct as highlighted in other pending motions—and

9

preparing for an August 4, 2011 summary judgment hearing before Judge Seeborg in this case. 4

10

Furthermore, having Elan’s motion heard on a normal briefing schedule will in no way

11

prejudice Elan’s other discovery efforts. As noted above, the issue of iOS Apps ostensibly relates

12

only to one aspect of Elan's damages case; it is unrelated to the other discovery Elan is pursuing.

13

Thus, to the extent this issue requires deposition testimony, it will involve different witnesses

14

than for the other issues Elan is pursuing. Simply put, even putting aside Elan’s delay in seeking

15

discovery related to iOS Apps, there simply is no genuine need for a shortened briefing schedule

16

here, and no possibility of meaningful efficiency gains that would otherwise justify a compressed

17

briefing schedule.

18
19
20
21
22
23
24
25
26
27
28

3

Interestingly, in the limited email meet and confer the parties engaged in before Elan filed
its motion to shorten time, Elan did not even identify this as a reason for needing to proceed on an
expedited basis. In fact, Elan’s request for a shortened schedule was based strictly on the
erroneous assumption that the Court needed to hear all discovery motions prior to the close of fact
discovery. See Walter Decl., Exh. A [July 14, 2011 email correspondence between D. Walter and
J. Bu]. In response, Apple explained to Elan that Local Rule 37-3 permits Elan to file a fully
noticed motion to compel on a normal 35 day briefing schedule as much as seven days after the
fact discovery cutoff. See id. Elan never responded with any concerns related to the expert report
timeline; instead, it just moved to shorten time. Furthermore, during the meet and confer, Elan
proposed an inequitable briefing schedule that would have reduced Apple’s time for opposition
by seven days, yet reduce Elan’s time for a reply by just one day. See id. Although Elan
ultimately proposed a more reasonable briefing schedule in its motion to shorten time, the
foregoing leaves serious doubt as to whether Elan engaged in the meet and confer process in good
faith.
4
Furthermore, Elan has requested that the opening expert report deadline be moved to
October 21, 2011. See Dkt No. 333 at 7. If Elan’s request is granted, its motion to shorten time
will be moot.
APPLE’S OPPOSITION TO ELAN’S MOTION TO SHORTEN
TIME

3

Case No. C-09-01531 RS (PSG)

1

At bottom, Elan’s motion is just a standard discovery motion, which Elan decided to bring

2

at the last minute. These circumstances do not reflect the sort of “substantial harm or prejudice”

3

that would justify a shortened briefing schedule.

4

III.

5

CONCLUSION

6
7

For the reasons stated above, Apple respectfully requests that the Court deny Elan’s
Motion to Shorten Time.

8
9

Dated: July 18, 2011

WEIL, GOTSHAL & MANGES LLP

10
11

By:

12
13

/s/ Sonal N. Mehta
Sonal N. Mehta
Attorneys for Defendant and
Counterclaim Plaintiff
Apple Inc.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
APPLE’S OPPOSITION TO ELAN’S MOTION TO SHORTEN
TIME

4

Case No. C-09-01531 RS (PSG)