Interserve, Inc. et al v. Fusion Garage PTE. LTD

Filing 43

Memorandum in Opposition re 42 Amended MOTION to continue the hearing to May 27, 2010 or another date convenient on the Court's calendar filed byCrunchPad, Inc., Interserve, Inc.. (Scherb, Matthew) (Filed on 4/1/2010)

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101 California Street San Francisco, CA 94111-5894

Andrew P. Bridges (SBN: 122761) [e-mail] David S. Bloch (SBN: 184530) [e-mail] Matthew A. Scherb (SBN: 237461) [e-mail] WINSTON & STRAWN LLP 101 California Street, 39th Floor San Francisco, CA 94111-5802 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs INTERSERVE, INC., dba TECHCRUNCH and CRUNCHPAD, INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

Winston & Strawn LLP

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS' OPP. TO DEF'S. REVISED MOT. TO CHANGE TIME
SF:278524.1

INTERSERVE, INC., dba TECHCRUNCH, ) a Delaware corporation, and CRUNCHPAD, ) INC., a Delaware corporation, ) ) Plaintiffs, ) ) vs. ) ) FUSION GARAGE PTE. LTD., a Singapore ) company, ) ) Defendant. ) ) )

Case No. CV-09-5812 RS (PVT) PLAINTIFFS' OPPOSITION TO DEFENDANT'S REVISED MOTION TO CHANGE TIME [DKT. 42]

Case No. 09-CV-5812 RS (PVT)

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101 California Street San Francisco, CA 94111-5894

After Defendant Fusion Garage filed its first motion to move the hearing date for TechCrunch's preliminary injunction motion, the parties engaged in further discussion about timing. Counsel for TechCrunch offered to call the Court today, April 1, 2010, with Defendant's counsel to state that the parties had agreed on the one-week postponement, until May 6, 2010, that Defendant had sought in its first motion. Defendant responded with its revised motion, now seeking an additional postponement of one month, until May 27, 2010. Another month's delay is inappropriate for a preliminary injunction motion. TechCrunch filed its preliminary injunction motion on February 22, 2010 and had originally planned to notice a hearing on March 29, 2010, thirty-five days out, as required by Local Rule 7. But the Court's first available hearing date, at that time, was May 3, 2010 and Judge Ware denied a request to move the hearing to an earlier date. Moving the hearing date as Defendant now requests would be tantamount to a two-month delay on a motion calling for urgent relief. Defendant asserts that it needs more time because TechCrunch has not yet produced every document responsive to Defendant's document requests. Defendant ignores Plaintiffs' production to date and fails to understand that a preliminary injunction motion is by definition "preliminary" and not a full-blown trial on the merits. As part of Court-ordered expedited discovery and in fulfillment of its agreement to produce documents to Defendant in time for responding to the preliminary injunction motion, TechCrunch produced hundreds of pages of highly relevant documents that were most readily available to it. TechCrunch continues to collect and review documents for production and will be supplementing its production shortly. Meanwhile, given that this case concerns the failed joint venture between TechCrunch and Defendant and Defendant's creation of a tablet computer outside of the joint venture, Defendant likely already has all communications between it and TechCrunch and likely has sole possession of all communications with its vendors and developers, which are arguably the most important documents in the case. On the other hand, TechCrunch, would prefer to have access to all of Defendant's documents to bolster its preliminary injunction papers, but Defendant has produced just 50 pages and has failed to offer any firm dates for the deposition of its principal, Chandra Rathakrishnan. PLAINTIFFS' OPP. TO DEF'S. REVISED MOT. TO CHANGE TIME
SF:278524.1

Winston & Strawn LLP

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Further,

Case No. 09-CV-5812 RS (PVT)

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101 California Street San Francisco, CA 94111-5894

Defendant continues to refuse to produce highly relevant documents because of false concerns over disclosure of its trade secrets, despite entry of a standard confidentiality protective order in this case. Defendant's dilatory motion for a protective order on this matter remains pending before Judge Trumbull. Despite Defendant's stonewalling and delay, TechCrunch still needs to move forward with its preliminary injunction motion as expeditiously as possible, with whatever evidence is available. TechCrunch's preliminary injunction motion is urgent, because news reports show that Fusion Garage has just recently begun shipping its "JooJoo" tablet that is the fruit of Defendant's breach of fiduciary duty and because Fusion Garage, a Singapore-based entity, will undoubtedly transfer revenues outside the country to place them beyond the reach of this Court. In such

situations, for the reasons discussed in TechCrunch's preliminary injunction motion, the law affords relief. TechCrunch was willing to agree to a one-week extension to accommodate Fusion Garage, but cannot agree to postpone the hearing by another month. The Court should deny Defendant's revised motion to change time. Plaintiffs request an expedited telephonic conference with the Court to address these and other logistical issue in this case. Dated: April 1, 2010 WINSTON & STRAWN LLP

Winston & Strawn LLP

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By:

/s/ Andrew P. Bridges David S. Bloch Matthew A. Scherb Attorneys for Plaintiffs

PLAINTIFFS' OPP. TO DEF'S. REVISED MOT. TO CHANGE TIME
SF:278524.1

Case No. 09-CV-5812 RS (PVT)