Konami Gaming, Inc. v. Marks Studios, LLC

Filing 119

ORDER Granting 118 Stipulation to Modify Scheduling Order. Signed by Magistrate Judge Carl W. Hoffman on 1/25/16. (Copies have been distributed pursuant to the NEF - TR)

Case 2:14-cv-01485-JAD-CWH Document 118 Filed 01/22/16 Page 1 of 5

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SANTORO WHITMIRE

10100 W. Charleston Blvd., Suite 250, Las Vegas, Nevada 89135
[phone] – fax [phone]

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NICHOLAS J. SANTORO, ESQ.
Nevada Bar No. 0532
[e-mail]
JASON D. SMITH, ESQ.
Nevada Bar No. 9691
[e-mail]
SANTORO WHITMIRE
10100 W. Charleston Blvd., Suite 250
Las Vegas, Nevada 89135
Telephone: [phone]
Facsimile:
702/948-8773
Jonathan Moskin
Ramy Hanna
Adam Pence
FOLEY & LARDNER LLP
90 Park Avenue
New York, New York 10016-1314
P: [phone]
F: [phone]
Email: [e-mail]
(admitted pro hac vice)

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Attorneys for Defendant Marks Studios, LLC
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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KONAMI GAMING, INC., a Nevada
corporation,

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Plaintiff,

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v.

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MARKS STUDIOS, LLC d/b/a Gimmie
Games, a Georgia limited liability company,

CASE NO.:

2:14-cv-01485-JAD-CWH

Honorable Jennifer A. Dorsey
Magistrate Judge Carl W. Hoffman
STIPULATION AND [PROPOSED]
ORDER TO MODIFY SCHEDULING
ORDER
(THIRD REQUEST)

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Defendant.
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Pursuant to Local Rules 6-1 and 26-4, Plaintiff Konami Gaming, Inc. (“Konami” or

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“Plaintiff”) and Defendant Marks Studios, LLC d/b/a Gimmie Games (“Marks Studios” or

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Defendant”) hereby stipulate as follows:

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WHEREAS, the parties to this action filed a proposed joint Discovery Plan and
Scheduling Order (the “Scheduling Order”) on December 30, 2014, (Docket No. 24);
WHEREAS, the Court so ordered the Scheduling Order on January 27, 2015 (Docket
No. 31);

Case 2:14-cv-01485-JAD-CWH Document 118 Filed 01/22/16 Page 2 of 5

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WHEREAS, to date, the Plaintiff and Defendant have made their Initial Disclosures

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pursuant to Federal Rule of Civil Procedure 26(a)(1) and have filed the Stipulated Protective

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Order required under Local Rule 16.1-4;
WHEREAS, pursuant to the Scheduling Order, discovery is partially stayed until the

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discovery: (a) the substantive disclosures included in section C (“Markman schedule”) of the

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Scheduling Order; (b) Defendant’s deposition of the inventor(s), (c) Plaintiff’s deposition of a

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technical person knowledgeable concerning operation of Defendant’s games, (d) Plaintiff’s and

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SANTORO WHITMIRE

Court issues a Markman order on claim construction.

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10100 W. Charleston Blvd., Suite 250, Las Vegas, Nevada 89135
[phone] – fax [phone]

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Defendant’s discovery relating to claim construction and the validity of the patents in suit, and

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Until that time, the only permitted

(e) expert discovery;

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WHEREAS, the Scheduling Order provided that Plaintiff Konami Gaming, Inc.

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(“Konami”) would serve its Disclosure of Asserted Claims and Infringement Contentions

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(“Claims and Contentions”), along with supporting documents, by January 14, 2015 (Docket No.

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24);
WHEREAS, the parties first requested to modify the Scheduling Order on February 6,

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2015 (Docket No. 35);
WHEREAS, the Court so ordered the Scheduling Order on February 6, 2015 (Docket

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No. 37);
WHEREAS, the parties again requested to modify the Scheduling Order on May 18,

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2015 (Docket No. 65);
WHEREAS, the Court so ordered the Scheduling Order on May 19, 2015 (Docket No.

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66);
WHEREAS, the parties filed their opening claim construction briefs on October 28,
2016 (Docket Nos. 108 & 109);

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WHEREAS, on November 3, 2015, the Court ordered the parties to file a stipulation

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vacating the dates associated with the Scheduling Order outlined in Docket No. 66 (the court

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order is Docket No. 110);

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Case 2:14-cv-01485-JAD-CWH Document 118 Filed 01/22/16 Page 3 of 5

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WHEREAS, on November 10, 2015, the parties filed a joint stipulation vacating the

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Scheduling Order, pending the scheduling of Osamu Yoshimi’s continued deposition, which this

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Court so-ordered on November 12, 2015 (Docket No. 112);

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WHEREAS, on December 2, 2015, the parties filed a second joint stipulation requesting

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additional time to schedule Mr. Yoshimi’s continued deposition and requested until January 22,

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2016 to submit to this Court a revised Scheduling Order;

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WHEREAS, the parties have schedule Mr. Yoshimi’s continued deposition, which will
take place on February 26, 2016;

SANTORO WHITMIRE

10100 W. Charleston Blvd., Suite 250, Las Vegas, Nevada 89135
[phone] – fax [phone]

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WHEREAS, Konami stated in its Initial Infringement Contentions and Supplemental

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Initial Infringement Contentions that: “For purposes of claim construction under Markman only,

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Konami identifies no apparatus, product, device, process, method, act or other instrumentality

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that incorporates or reflects a particular claim.”;

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WHEREAS, Konami contends it was not required to identify the commercial

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embodiments in its Initial Contentions based on its interpretation of the scheduling order under

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which discovery was limited to claim construction purposes only and, therefore, that such

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identification at that time was not necessary. The Court since has ruled that the scheduling order

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is not so limited.

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WHEREAS, the parties agree that there are commercial embodiments that Konami will
now identify, and that the parties shall engage in necessary discovery concerning the foregoing.

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WHEREAS, the parties agree that Konami may serve a revised Supplemental Disclosure

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of Asserted Claims and Infringement Contentions, that Marks Studios may then serve a revised

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Disclosure of Non-Infringement, Invalidity and Unenforceability Contentions, and Konami may

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then serve a revised Response to Non-Infringement, Invalidity and Unenforceability Contentions,

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and that the Claim Construction process as contemplated in the Local Patent rules must then be

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renewed following the revised disclosures;

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WHEREAS, in accordance with the Protective Order, Konami will produce the source
code for the commercial embodiments of the patents-in-suit;

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Case 2:14-cv-01485-JAD-CWH Document 118 Filed 01/22/16 Page 4 of 5

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WHEREAS, the parties previously filed simultaneously their Opening Claim

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Construction briefs and both parties agree to simultaneously submit revised Opening Claim

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Construction briefs followed by the simultaneous submission of Responsive Claim Construction

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briefs;

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WHEREAS, this is the parties’ third request to modify the Scheduling Order;

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IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned

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counsel for the named parties hereto, that the schedule in the Scheduling Order will be amended

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as follows:

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SANTORO WHITMIRE

10100 W. Charleston Blvd., Suite 250, Las Vegas, Nevada 89135
[phone] – fax [phone]

Event

Basis

Proposed Date

Defendant shall produce source code and operating
documents for the games related to the
supplemental Asserted Claims and Infringement
Contentions

LR 16.1-9

Completed

Revised Disclosure of Asserted Claims and
Infringement Contentions

LR 16.1-6

March 22, 2016

Revised Disclosure of Non-Infringement,
Invalidity and Unenforceability Contentions

LR 16.1-8

May 6, 2016

Revised Response to Non-Infringement, Invalidity
and Unenforceability Contentions

LR 16.1-10

May 20, 2016

Second Exchange of Proposed Terms for Claim
Construction

LR 16.1-13

Second Exchange of Preliminary Claim
Construction and Extrinsic Evidence

LR 16.1-14
LR 16.1-14

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Parties to Meet and Confer regarding terms
requiring construction and proposed meaning of the
terms

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Revised Joint Claim Construction Statement

LR 16.1-15

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Revised, Simultaneous Filing of Opening Claim
Construction Briefs

LR 16.1-16

Revised Simultaneous Filing of Responsive Claim
Construction Briefs

LR 16.1-16

Markman Hearing

N/A

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May 24, 2016
June 23, 2016
June 24-28, 2016

July 8, 2016

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August 8, 2016
August 29, 2016
To be Set By Court
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Case 2:14-cv-01485-JAD-CWH Document 118 Filed 01/22/16 Page 5 of 5

October 2, 2016

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N/A

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Initial Expert Disclosures and Submission of
Interim Status Report

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Rebuttal Expert Exchange

N/A

November 3, 2016

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IT IS FURTHER STIPULATED AND AGREED that nothing herein alters the

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obligations and requirements included in the Scheduling Order and that this Stipulation is made

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in good faith and not for the purpose of delay.

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IT IS SO STIPULATED THROUGH COUNSEL OF RECORD,

SANTORO WHITMIRE

Dated: January 22, 2016

Dated: January 22, 2016

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10100 W. Charleston Blvd., Suite 250, Las Vegas, Nevada 89135
[phone] – fax [phone]

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By: /s/ Nicholas J. Santoro
Nicholas J. Santoro (NBN 532)
Jason D. Smith (NBN 9691)
SANTORO WHITMIRE
10100 West Charleston Blvd., Suite 250
Las Vegas, Nevada 89135
P: [phone]
F: [phone]
Email: [e-mail]
Email: [e-mail]

By: /s/ Patrick M. McCarthy
Robert W. Hernquist (NBN 10616)
HOWARD & HOWARD ATTORNEYS
Wells Fargo Tower, Suite 1000
3800 Howard Hughes Parkway
Las Vegas, Nevada 89169
P: [phone]
F: [phone]
Email: [e-mail]

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and
Jonathan Moskin
Akiva Cohen
Ramy Hanna
Adam Pence
FOLEY & LARDNER LLP
90 Park Avenue
New York, New York 10016-1314
P: [phone]
F: [phone]
Email: [e-mail]
(admitted pro hac vice)

Patrick M. McCarthy (Michigan Bar No.
P49100) (admitted pro hac vice)
HOWARD & HOWARD ATTORNEYS
One North Main Building
101 North Main Street
Ann Arbor, Michigan 48104-1475
P: [phone]
F: [phone]
Email: [e-mail]

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Attorneys for Plaintiff Konami Gaming, Inc.
Attorneys for Defendant Marks Studios, LLC

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ORDER
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PURSUANT TO THE STIPULATION, IT IS SO ORDERED:
January 25, 2016
Dated:

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__________________________________________
Carl W. Hoffman
United States Magistrate Judge

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