Motorola Mobility, Inc. v. Apple, Inc.
Filing
361
MOTION to Amend/Correct (84 in 1:12-cv-20271-RNS) Scheduling Order,,, MEMORANDUM OF LAW AND MOTION TO AMEND THE PROCEDURAL SCHEDULE by Apple Inc.. Responses due by 10/29/2012 (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11)Associated Cases: 1:12-cv-20271-RNS, 1:10-cv-23580-RNS(Pace, Christopher)
EXHIBIT 5
From:
Sent:
To:
Cc:
Subject:
Marshall Searcy
Tuesday, August 21, 2012 1:39 PM
Davis, Mark
Vlasis, Robert; Schmidt, Jill; Moto-Apple-SDFL; Weil_TLG Apple Moto FL External
RE: Apple/Motorola (FL): meet and confer
Dear Mark,
Our position is simply that there is no need to set a firm date for parties to accuse products released before trial in this
matter at this time. As we discussed last week, both Apple and Motorola have new products coming out this fall, and
we agree that both sides will be producing documents related to those products. Both sides will want to include
information adduced during discovery about these products in their infringement contentions. Further, it is likely that
either Apple or Motorola (or both) will release new products after the close of discovery but before the commencement
of trial. Considering that discovery will be continuing through July 2013, we don’t think it makes sense for either side to
freeze their infringement contentions in place before discovery closes. Nor is there any reason to restrict appropriate
and reasonable supplementation of infringement contentions after the parties’ exchange initial contentions and before
the beginning of trial in April 2014. Motorola continues to believe that it’s most efficient for the parties to avoid a
multiplicity of suits between them.
From: Davis, Mark [mailto:mark.davis@weil.com]
Sent: Friday, August 17, 2012 11:24 AM
To: Marshall Searcy
Cc: Vlasis, Robert; Schmidt, Jill; Moto-Apple-SDFL; Weil_TLG Apple Moto FL External
Subject: Re: Apple/Motorola (FL): meet and confer
Marshall,
What is your proposal?
Mark
On Aug 17, 2012, at 1:13 PM, "Marshall Searcy" wrote:
Robert,
Motorola does not agree to these dates. We don’t think it makes sense to limit discovery of products
released after October 8, 2012, when the trial period in this matter is not set until April 21, 2014. Such a
limitation is contrary to an efficient resolution of the disputes between the parties, and will likely result
in additional suits being filed.
Best regards,
Marshall
From: Vlasis, Robert [mailto:robert.vlasis@weil.com]
Sent: Wednesday, August 15, 2012 3:12 PM
To: Marshall Searcy
Cc: Schmidt, Jill; Moto-Apple-SDFL; Weil_TLG Apple Moto FL External
Subject: Re: Apple/Motorola (FL): meet and confer
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Marshall,
As we explained during the meet-and-confer, the deadline for exchanging
contentions should be coordinated with the deadline for adding new products to
the case to avoid continual supplementation of contentions for new products
through the 2014 trial, which would otherwise make trial preparations impractical,
unreasonably enlarge the ongoing litigation between the parties, and unduly
burden the parties' witnesses. While Apple agrees to provide discovery on future
products, this agreement must have some reasonable boundary. Indeed, we
cannot continue to have Apple's engineers re-deposed for each new product and
software release, nor is it reasonable for this litigation to continue broadening up
through trial.
For this reason, we suggest pushing the contentions deadline by at least two
months so that Motorola can add the next generation iPhone and Apple can add
new Motorola products released between now and the extended
deadline. Thus, we suggest making the infringement contentions due on
November 7 and invalidity contentions due on December 5. With these dates,
we suggest October 8 as the deadline for adding new products to the case, with
documents pertaining to such new products produced by October 15.
Please let us know if we can agree to these dates.
Best regards,
Robert
On Aug 14, 2012, at 7:52 PM, "Marshall Searcy" wrote:
Jill and Mark,
Just to follow up on our conversation from last Thursday, because both Apple and
Motorola have products scheduled for release after the September 7 date for
infringement contentions, Apple proposed that the parties could potentially agree to
extend that date (and possibly others). Motorola is willing to consider such an
extension; however, we do not agree that it is proper to lock in the parties to only those
products identified in infringement contentions, to the exclusion of all products released
later in the case. Accordingly, while Motorola is willing to discuss an extension to the
contention date, it will do so only on the condition that Apple will not argue that any
agreement the parties might reach is a basis for preventing Motorola from
supplementing its infringement contentions in the future.
To the extent that Apple has any proposal for extending the contention dates, please
forward it to me so that we may continue our discussions.
Best regards,
Marshall
From: Schmidt, Jill [mailto:jill.schmidt@weil.com]
Sent: Wednesday, August 08, 2012 8:36 AM
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To: Marshall Searcy; Moto-Apple-SDFL
Cc: Weil_TLG Apple Moto FL External
Subject: Re: Apple/Motorola (FL): meet and confer
Hi Marshall,
11am PT tomorrow is fine. Please circulate a dial‐in.
Thanks,
Jill
From: Marshall Searcy [mailto:marshallsearcy@quinnemanuel.com]
Sent: Tuesday, August 07, 2012 06:33 PM
To: Schmidt, Jill; Moto-Apple-SDFL
Cc: Weil_TLG Apple Moto FL External
Subject: RE: Apple/Motorola (FL): meet and confer
Hi Jill,
I’m available on Thursday at 11 a.m. In connection with this subject, it has been
widely reported that Apple will be announcing the iPhone 5 on September 12,
2012. Infringement contentions are presently due September 7. Please confirm that
Apple will promptly provide documents concerning the iPhone 5 including technical
specifications, design documents and instruction manuals, well in advance of
September 7.
In addition, please let me know when we can expect Apple’s document production
this week.
Best regards,
Marshall
From: Schmidt, Jill [mailto:jill.schmidt@weil.com]
Sent: Monday, August 06, 2012 2:22 PM
To: Marshall Searcy; Moto-Apple-SDFL
Cc: Weil_TLG Apple Moto FL External
Subject: RE: Apple/Motorola (FL): meet and confer
Hi Marshall,
Further to my email below, this is the language we propose for our agreement regarding
unreleased products:
Plaintiff/Counterclaim‐Defendant Motorola Mobility, Inc. (“Motorola”) and
Defendant/Counterclaim‐Plaintiff Apple, Inc. (“Apple”) hereby stipulate that discovery
regarding unreleased products in the above‐captioned litigation shall be limited to
products that will be announced prior to XXX.
Let’s schedule a call for later this week to discuss a mutually agreeable cutoff date.
Best regards,
Jill
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From: Schmidt, Jill
Sent: Thursday, August 02, 2012 8:01 PM
To: 'Marshall Searcy'; Moto-Apple-SDFL (Moto-Apple-SDFL@quinnemanuel.com)
Cc: Weil_TLG Apple Moto FL External
Subject: Apple/Motorola (FL): meet and confer
Hi Marshall,
I write to memorialize our meet and confer from earlier today. With respect to
document production, we agreed that Apple will produce its documents as OCR’ed pdfs
and Motorola will produce its documents as single‐page TIFFs, but both sides will simply
keep their copies of documents produced in the FL‐1 action rather than re‐producing
everything again. Since Motorola did not previously specify which documents it
produced for the FL‐1 action with a different prefix, please identify those documents by
Bates range. As for metadata fields, Apple would prefer to stick with the same fields as
the other Apple/Motorola cases if HTC is no longer involved. With respect to
documents produced in other Apple/Motorola cases, Apple is amenable to extending
our cross‐use agreement. You are double‐checking with your team and will get back to
me with any objections.
With regard to discovery limits, we agreed that the following limits would apply to the
consolidated FL cases, with the understanding that either party may serve discovery
(within these limits) that pertain to patents asserted in the FL‐1 action as well as the FL‐
2 action:
30 Interrogatories
125 RFPs
100 RFAs
90 hours of deposition for fact/30(b)(6) witnesses (experts or third‐party
witnesses do not count towards this limit)
As for our agreement regarding unreleased products, we agreed that we likely need to
craft a new agreement for the consolidated FL cases since my recollection was that our
previously agreed cutoff date was the 745 trial and both Apple and Motorola have
already accused products released since that date.
Finally, on financial data, we agreed in principle that an exchange of representative or
summary data would be more efficient for both sides. We agreed to check with our
respective teams to see what exchange was made in the NDIL case, so we can use that
as a starting point for further discussions.
Please let me know if scheduling another call for early next week would be useful.
Best regards,
Jill
Jill Schmidt (née Ho)
Weil, Gotshal & Manges LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065-1134
jill.schmidt@weil.com
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+1 650 802 3163 Direct
+1 650 802 3100 Fax
From: Marshall Searcy [mailto:marshallsearcy@quinnemanuel.com]
Sent: Thursday, August 02, 2012 10:21 AM
To: Schmidt, Jill
Subject: conference call number
Hi Jill,
Here’s the number for today
866-939-8416
Passcode: 518165
Speak to you at 11.
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