New Medium Technologies LLC et al v. Barco N.V. et al

Filing 3

Declaration of James M. Barrett. Filed by Pixelworks, Inc.. (Related document(s): Motion to Quash, Motion for Sanctions 1 ). (pvh) Additional attachment(s) added on 9/10/2007 (Hunt, Patricia).

James B. Davidson, OSB No. 01122 [e-mail] James M. Barrett, OSB No. 01199 [e-mail] ATER WYNNE LLP 222 SW Columbia, Suite 1800 Portland, Oregon 97201-6618 Tel: [phone] Fax: [phone] Attorneys for Non-Party Pixelworks, Inc.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON NEW MEDIUM TECHNOLOGIES LLC, AV TECHNOLOGIES LLC, IP INNOVATION LLC, and TECHNOLOGY LICENSING CORPORATION, Plaintiffs, v. BARCO N.V., MIRANDA TECHNOLOGIES, LG PHILIPS LCD, LTD., TOSHIBA CORPORATION, TOSHIBA AMERICA CONSUMER PRODUCTS, L.L.C., LG ELECTRONICS INC., and SYNTAX-BRILLIAN CORPORATION, Defendants. I, James M. Barrett, hereby declare that I have personal knowledge of the matters set forth in this Declaration and am competent to testify to them: 1. I am an attorney at Ater Wynne LLP and represent nonparty Pixelworks, Inc. DECLARATION OF JAMES M. BARRETT IN SUPPORT OF NONPARTY PIXELWORKS, INC.'S MOTION TO QUASH DEPOSITION SUBPOENA AND MOTION FOR SANCTIONS Misc. No. Civil No. 05 C 5620*
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In the U.S. District Court, Northern District of Illinois, Eastern Division

("Pixelworks"). I make this declaration in support of Pixelworks' Motion to Quash Deposition Page 1 ­ DECLARATION OF JAMES M. BARRETT
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Subpoena and Motion for Sanctions. 2. Plaintiffs first filed this patent infringement suit in September 2005 in the U.S.

District Court for the Northern District of Illinois, Eastern Division. Plaintiffs' current operative complaint is the Corrected Fourth Amended Complaint ("FAC"), filed August 15, 2007. A true and correct copy of the FAC is attached as Exhibit 1. 3. The parties have been taking discovery for almost two years. Discovery is

scheduled to close in a matter of weeks on September 28, 2007. 4. Plaintiffs initially served Pixelworks with a third-party document subpoena on

March 12, 2007. Pixelworks timely objected to the subpoena, which propounded massively overbroad and burdensome request for confidential and proprietary information. The Company has refused to produce documents until its objections are addressed. A true and correct copy of the document subpoena is attached as Exhibit 2. 5. Instead of conferring with Pixelworks, on August 15, 2007, Plaintiffs served

Pixelworks with the third party deposition subpoena. A true and correct copy of the deposition subpoena is attached as Exhibit 3. 6. The new deposition subpoena purports to require the Company to prepare

witnesses under Fed. R. Civ. P. 30(b)(6) to testify about many of the same massively overbroad categories of information that Plaintiffs identified in their document subpoena. A simple comparison reveals a cut-and-paste job; Plaintiffs copied their document requests into the new subpoena and slightly modified them to require testimony instead of documents. Plaintiffs made no attempt to confer with Pixelworks about a mutually agreeable deposition date. Neither did they attempt to narrow the information sought, even though deposition topics must be described with "reasonable particularity." Fed. R. Civ. P. 30(b)(6). 7. On August 20, 2007, Pixelworks served Plaintiffs' counsel with detailed

objections and advised them in writing that the deposition subpoena was facially defective in several respects. Pixelworks also apprised Plaintiffs' counsel that it would seek sanctions for Page 2 ­ DECLARATION OF JAMES M. BARRETT
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their failure to take reasonable steps to avoid undue burden and expense under Fed. R. Civ. P. 45(c). A true and correct copy of the August 20, 2007 letter from Pixelworks' counsel to Plaintiffs' counsel enclosing objections is attached as Exhibit 4. 8. Plaintiffs' counsel did not make themselves available to confer about Pixelworks'

objections until August 27, 2007. At that time, Plaintiffs' counsel refused to narrow the scope of the deposition topics or make modifications of any kind. Rather, they stated that they could not narrow the deposition topics without first receiving documents from Pixelworks in response to the document subpoena. 9. Pixelworks is entitled to recover its reasonable attorney fees in preparing its

motion to quash as a sanction against Plaintiffs under Fed. R. Civ. P. 45(c). Pixelworks anticipates that it will have incurred $8,342.50 in legal fees, which represents 35.5 hours of its attorney's time in conferring with counsel and research, drafting, and arguing the motion, at $235/hour. 10. The rate of $235/hour charged by Ater Wynne LLP ("Ater Wynne") is

commensurate with similar litigation law firms in Portland, Oregon. This Court has instructed attorneys to refer to the 2002 Oregon State Bar Economic Survey to compute the appropriate billing rate for an attorney fee award. According to that survey, in 2002 the billing rates for Portland Attorneys with four to six years experience ranged from $165 to $221 per hour. A more recent scientific survey of billing rates actually charged by firms of similar size and standing was performed by Serena Morones, a local CPA. The customized survey concludes that, as of January 1, 2006, the average billing rate of attorneys at similarly sized firms who have similar experience is the declarant is $214/hour. A true and correct copy of the Morones Survey is attached as Exhibit 5. 11. With respect to the standing and skill of declarant, I am a senior litigation

associate with six years of experience and primary responsibility for handling this matter. Prior to private practice, I clerked for the Honorable Thomas A. Balmer of the Oregon Supreme Court. Page 3 ­ DECLARATION OF JAMES M. BARRETT
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I HEREBY DECLARE THAT THE ABOVE STATEMENT IS TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF, AND THAT I UNDERSTAND IT IS MADE FOR USE AS EVIDENCE IN COURT AND IS SUBJECT TO PENALTY FOR PERJURY. DATED this 28th day of August, 2007.

s/James M. Barrett JAMES M. BARRETT

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CERTIFICATE OF SERVICE I hereby certify that I served the foregoing DECLARATION OF JAMES M. BARRETT IN SUPPORT OF NON-PARTY PIXELWORKS, INC.'S MOTION TO QUASH DEPOSITION SUBPOENA AND MOTION FOR SANCTIONS on the following: Raymond P. Niro Paul C. Gibbons NIRO SCAVONE HALLER & NIRO 181 W. Madison St., Ste. 4600 Chicago, IL 60602 Tel: [phone] Fax: [phone] Attorneys for Plaintiffs by [X] mailing and [X] facsimile a true and correct copy thereof on the date stated below; and on: Jennifer Ruttenberg James P. Ryther DLA PIPER RUDNICK GRAY CARY 203 N. LaSalle St., Ste. 1900 Chicago, IL 60601 Tel: [phone] Fax: [phone] Attorneys for Miranda Technologies James M. Heintz DLA PIPER RUDNICK GRAY CARY 1200 19th St., NW Washington, D.C. 20036 Tel: [phone] Fax: [phone] Attorneys for Miranda Technologies Gustavo G. Siller, Jr. James R. Sobieraj BRINKS HOFER GILSON & LIONE 455 N. Cityfront Plaza Dr., Ste. 3600 Chicago, IL 60611 Tel: [phone] Fax: [phone] Attorneys for LG Philips CERTIFICATE OF SERVICE
ATER WYNNE LLP 222 SW COLUMBIA, SUITE 1800 PORTLAND, OR 97201-6618 [phone]

Paul T. Meiklejohn DORSEY & WHITNEY 1420 Fifth Ave., Ste. 3400 Seattle, WA 98101 Tel: [phone] Fax: [phone] Attorneys for Toshiba Amy Gast O'Toole BELL BOYD & LONDON 70 W. Madison, Ste. 3100 Chicago, IL 60602 Tel: [phone] Fax: [phone] Attorneys for Toshiba

Maxwell J. Petersen Kevin D. Erickson PAULEY PETERSEN & ERICKSON 2800 W. Higgins Rd., Ste. 365 Hoffman Estates, IL 60169 Tel: [phone] Fax: [phone] Attorneys for Syntax-Brillian

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Herman S. Palarz Darin Margules TYRE KAMINS KATZ & GRANOF 1880 Century Park East, Ste. 300 Los Angeles, CA 90067 Tel: [phone] Fax: [phone] Attorneys for Syntax-Brillian

David I. Roche Daniel J. O'Connor BAKER & McKENZIE 130 East Randolph Dr., Ste. 3500 Chicago, IL 60601 Tel: [phone] Fax: [phone] Attorneys for Barco NV

by [X] mailing a true and correct copy thereof on the date stated below. DATED this 28th day of August, 2007.

s/James M. Barrett James M. Barrett, OSB No. 01199 ATER WYNNE LLP Attorneys for Pixelworks, Inc.

CERTIFICATE OF SERVICE
ATER WYNNE LLP 222 SW COLUMBIA, SUITE 1800 PORTLAND, OR 97201-6618 [phone]

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