Graifman v. Trend Micro Corporation

Filing 58

STIPULATION AND ORDER 56 Extending Dates and Deadlines Re: Class Certification Phase: Motion Hearing set for 11/9/2012 09:00 AM in Courtroom 6, 4th Floor, San Jose before Hon. Ronald M. Whyte. Signed by Judge Ronald M. Whyte on 5/30/12. (jg, COURT STAFF) (Filed on 5/30/2012)

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Timothy J. Burke (SBN 181866)
STULL, STULL & BRODY
10940 Wilshire Blvd., Suite 2300
Los Angeles, CA 90024
[phone]
[phone]
[e-mail]
Gary S. Graifman
KANTROWITZ, GOLDHAMER &
GRAIFMAN, PC
210 Summit Ave.
Montvale, NJ 07645
Email: [e-mail]
Phone: [phone]
Facsimile: 201-307-1086
Michael S. Green
GREEN & ASSOCIATES, LLC
522 Route 18
P.O. Box 428
East Brunswick, NJ 08816
Email: [e-mail]
Phone: [phone]
Facsimile: 732-390-0481

Tod L. Gamlen, State Bar No. 83458
Irene V. Gutierrez, State Bar No. 252927
BAKER & McKENZIE LLP
660 Hansen Way
Palo Alto, CA 94304-1044
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Mark D. Taylor (pro hac vice)
Matthew McCrary (pro hac vice)
BAKER & McKENZIE LLP
2300 Trammell Crow Center
Dallas, TX 75201
Telephone:
214 978 3000
Facsimile:
214 978 3099
Email: [e-mail]
Email: [e-mail]
Attorneys for Defendant
TREND MICRO, INC. (USA) sued herein as
TREND MICRO CORPORATION

Attorneys for Plaintiff
BRIAN GRAIFMAN

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION
BRIAN GRAIFMAN, on Behalf of Himself, All
Others Similarly Situated, and the General
Public,

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Plaintiff,

Case No. CV11-02488 RMW
STIPULATION AND ORDER
[] EXTENDING DATES
AND DEADLINES RE CLASS
CERTIFICATION PHASE

v.
Complaint Filed: March 2, 2011
TREND MICRO CORPORATION, and DOES
1 through 10, Inclusive,
Defendants.

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Baker & McKenzie LLP
660 Hansen Way
Palo Alto, CA 94304
[phone]

Case No. CV11-02488 RMW
STIPULATION AND ORDER [] EXTENDING DATES RE CERTIFICATION PHASE
PALDMS/471783.1

STIPULATION

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Plaintiff BRIAN GRAIFMAN (including any and all other persons that he may be

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determined to represent) (“Plaintiff”) and Defendant TREND MICRO INC. (USA) (“Trend Micro”),

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by and through their respective counsel, enter into this Stipulation.

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WHEREAS, on December 9, 2011, the Parties filed a Stipulation and Order Extending Time

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to Respond to First Amended Complaint and Discovery, providing that Defendant was to answer

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Plaintiff’s Amended Complaint and serve responses to Plaintiff’s Revised First Set of Requests for

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Production of Documents and Revised First Set of Interrogatories by December 28, 2011.

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WHEREAS, the Court approved the December 9, 2011 Stipulation referred to above and

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entered an order thereon on January 10, 2012 (Dkt. No. 51) (“the January 10 Scheduling Order”).

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WHEREAS, on December 28, 2011, Trend Micro served its Responses and Objections to

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Plaintiff’s Revised First Set of Requests for Production of Documents and Revised First Set of

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Interrogatories.

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WHEREAS, Trend Micro served an expert report on Plaintiff on January 13, 2012 that
included a survey by the expert.
WHEREAS, Trend Micro began production of documents on a rolling basis as of

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January 23, 2012, and, based on the information then available to it, believed that as of February 24,

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2012 it had completed the production of the majority of the documents that it has agreed to produce;

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that locating and collecting further documents that may be within the categories of documents that

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Trend Micro had agreed to produce took longer than expected for a variety of reasons, including, but

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not limited to, the fact that Trend Micro had to restore and search one or more decommissioned

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servers in a foreign country and search for email files dating back many years, including email files

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of employees who no longer work for said defendant; and, that Trend Micro contends that the

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production of such class-related documents requested by Plaintiff and which Trend Micro agreed to

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produce was completed by April 23, 2012.

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WHEREAS, on March 21, 2012 the Parties filed a Stipulation and Order [Proposed]

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Extending Time to Respond to Discovery, which, among other things, extended the then unexpired

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set forth in the January 10, 2012 Scheduling Order; and, on March 28, 2012 the Court approved such
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Baker & McKenzie LLP
660 Hansen Way
Palo Alto, CA 94304
[phone]

Case No. CV11-02488 RMW
STIPULATION AND ORDER [] EXTENDING DATES RE CERTIFICATION PHASE
PALDMS/471783.1

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March 21 Stipulation and entered an order thereon on March 28, 2012 (Dkt. No. 55) (“the March 28

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Scheduling Order”).

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WHEREAS, Plaintiff’s counsel contended that they could not conduct depositions of

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Defendant’s expert, nor the witnesses interviewed by Defendant’s expert, until Plaintiff reviewed all

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documents that Trend Micro produces; and, further, that they cannot properly prepare an expert

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rebuttal report until the depositions of the witnesses interviewed by Defendant’s expert were,

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completed, which contentions have been disputed by Trend Micro.

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WHEREAS, to resolve that particular dispute Trend Micro agreed to voluntarily produce the

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witnesses interviewed by Defendant’s expert for deposition by May 14, 2012 and that Plaintiff

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would produce its expert rebuttal report by May 23, 2012; and, it was Trend Micro’s intent and

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understanding of such agreement to voluntarily produce such witnesses was that the scope of such

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“pre-rebuttal report” depositions would be limited solely to the information that was discussed

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between such witnesses and Defendant’s expert, the parties also agreeing that any further depositions

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would be conducted after the Plaintiff submitted its expert rebuttal report.

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WHEREAS, a dispute has arisen between Plaintiff and Trend Micro as to the scope of the

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agreement relating to the “pre-rebuttal report” depositions. Trend Micro contends that the agreement

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to voluntarily produce the witnesses for such “pre-rebuttal report” depositions was conditioned on

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Plaintiff’s agreement that such depositions are limited solely to the information that was discussed

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between such witnesses and Defendant’s expert; Plaintiff does not agree with this contention.

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WHEREAS, on May 11 - 17 , 2012 the counsel for the parties met and conferred on this

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dispute, both by telephone and by email and have reached an agreement as to the scope of the “pre-

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rebuttal report” depositions referred to above.

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WHEREAS, in light of such dispute Plaintiff needs further time to complete Plaintiff’s

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expert’s rebuttal report; and, due to conflicting commitments, counsel for the parties need further

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time to complete the other deadlines for the class certification phase set forth in the March 28

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Scheduling Order.

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Baker & McKenzie LLP
660 Hansen Way
Palo Alto, CA 94304
[phone]

Case No. CV11-02488 RMW
STIPULATION AND ORDER [] EXTENDING DATES RE CERTIFICATION PHASE
PALDMS/471783.1

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WHEREAS, in light of the above facts, and hoping to avoid the necessity of filing a motion,

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the Parties are stipulating to the extensions set forth below from the dates set forth in ¶ 3.a. – g., of

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the Court’s March 28 Scheduling Order.
IT IS THEREFORE STIPULATED that:

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1.

The dates and deadlines for the class certification phase of this action and as set forth

in the January 10, 2012 Scheduling Order at ¶ 3.a.-g., are extended as follows:
a.

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Designation of Rebuttal Class Certification Experts – from May 23, 2012 to
June 6, 2012;

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b. Close of Class Certification Discovery – from June 22, 2012 to July 23, 2012;

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c. Filing of Class Certification motion –from July 13, 2012 to August 13, 2012;

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d. Filing of Opposition to Class Certification motion – from August 13, 2012 to
September 13, 2012;

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e. Filing of Reply to Class Certification motion – from September 13, 2012,

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2012 to October 15, 2012;

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f. Hearing on class certification motion – from October 12, 2012 to

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November 9, 2012.

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Baker & McKenzie LLP
660 Hansen Way
Palo Alto, CA 94304
[phone]

Case No. CV11-02488 RMW
STIPULATION AND ORDER [] EXTENDING DATES RE CERTIFICATION PHASE
PALDMS/471783.1

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: May 21, 2012

BAKER & McKENZIE LLP

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By: /s/ Tod L. Gamlen
Tod L. Gamlen
Attorneys for Defendant
TREND MICRO, INC. (USA) sued herein
as TREND MICRO, CORPORATION

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Dated: May 21, 2012

STULL, STULL & BRODY

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By: /s/ Timothy J. Burke
Timothy J. Burke
Attorneys for Plaintiff
BRIAN GRAIFMAN

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ATTESTATION OF CONCURRENCE BY TOD L. GAMLEN

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I, Tod L. Gamlen, hereby attest that I am one of the attorneys for Trend Micro Incorporated

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(USA), and, as the ECF user and filer of this document, I attest that, pursuant to General Order No.

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45(X)(B), concurrence in the filing of this document has been obtained from Timothy J. Burke, the

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above signatory.

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Dated: May 21, 2012

By: /s/ Tod L. Gamlen

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ORDER []

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Pursuant to stipulation IT IS SO ORDERED.

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Dated: May __, 2012
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UNITED STATES DISTRICT COURT JUDGE

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Baker & McKenzie LLP
660 Hansen Way
Palo Alto, CA 94304
[phone]

Case No. CV11-02488 RMW
STIPULATION AND ORDER [] EXTENDING DATES RE CERTIFICATION PHASE
PALDMS/471783.1