J.T. Colby & Company, Inc. et al v. Apple, Inc.

Filing 137

DECLARATION of Partha P. Chattoraj in Opposition re: 83 MOTION in Limine to Exclude any Testimony, Argument or Evidence Regarding the Expert Reports and Opinions of Robert T. Scherer.. Document filed by Ipicturebooks LLC, J.Boyston & Company, J.T. Colby & Company, Inc., Publishers LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C Part 1, # 4 Exhibit C Part 2, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K)(Chattoraj, Partha)

EXHIBIT

K

1: 11-cv-04060-DLC Document 53

Filed 08/07/12 Page 1 of 2

Allegaert Berger & Vogel LLP

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Writer's email: [e-mail]

212.571.0550
212.571.0555 Fax

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p ugust 6, 2012

CHAMBERS OF
DENISE COTE

BY HAND
The Honorable Denise L. Cote
United States District Judge
United States District Court
Southern District of New York
500 Pearl Street, Room 1610
New York, New York 10007
RE:

.

': r' .

.

J.T. Colby & Co. et al. v. Apple Inc., No. 11-cv-4060 (DLC) (S.D.N.Y.)

Dear Judge Cote:
This firm is co-counsel to Plaintiffs in the above-referenced action. In order to avoid
any misimpression on the Court or prejudice to the parties, I write to explain Plaintiffs' intended
course of action in response to the Court's endorsement order entered on Wednesday, August 1, 2012,
denying Plaintiffs' request for an informal conference concerning various substantial discovery
disputes in this matter, and also denying the substantive relief sought by Plaintiffs.
Although we respectfully disagree with the Court's decision, we understand that the
Court has effectively ruled that the parties' two-page submissions, with exhibits, pursuant to Section
2(C) ofYour Honor's Individual Practices, provided sufficient grounds for denial of Plaintiffs'
requests for both the informal conference and the relief sought therein with respect to these discovery
disputes.
Pursuant to Local Civil Rule 37.2, "No motion under Rules 26 through 37 inclusive of
the Federal Rules of Civil Procedure shall be heard unless counsel for the moving party has first
requested an informal conference with the Court by letter and such request has either been denied or
the discovery dispute has not been resolved as a consequence of such a conference." Insofar as the
Court has denied Plaintiffs' request for an informal conference, and the discovery disputes between
the parties were not resolved "as a consequence of such a conference," as no informal conference took
place pursuant to the Court's order, Plaintiffs currently intend to file a fully-briefed motion to compel
production and discovery responses by Defendant- the relief sought in my July 27 letter to the Court,
including its references to Defendant's objections to Plaintiffs' interrogatories and requests for
admission- by Wednesday, August 15,2012. Although we are hopeful that the Court will revisit its
decision based on a fully-briefed motion, we also wish to file this motion for purposes of the appellate
record, which we believe is incomplete with the docketing of my necessarily truncated two-page letter
and the Court's endorsement order.

1:11-cv-04060-DLC Document 53

Filed 08/07/12 Page 2 of2

Allegaert Berger & Vogel LLP
The Honorable Denise L. Cote
United States District Judge
August 6, 2012
Page2
I write to confinn that, in filing this motion, Plaintiffs have no intention to contemn the
Court's order disposing of these issues. I am also aware of and sensitive to the fact that Your Honor
and Defendant's counsel may have vacation plans for August. In order to avoid inconvenience, waste
of resources, unnecessary cost or other prejudice to Defendant, Defendant's counsel, or this Court, we
understand that the Court may order that Defendant need not file papers in opposition to Plaintiffs'
motion unless so directed by the Court. Our notice of motion would simply state that the timing for
Defendant's opposition brief shall be on a date to be detennined by the Court. We also intend to
adhere to the fact discovery cut-off and other deadlines set forth in the scheduling orders governing
this action, regardless of the pendency of this motion.
Needless to say, if the Court expressly orders Plaintiffs not to file the contemplated
motion papers, we will obey that order, and we understand that we will continue to be governed by the
applicable federal rules and statutes, including any opportunity for relief thereunder, if Plaintiffs are so
advised.

Respectfully submitted,

£J4d--_
Partha P. Chattoraj

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