Function Media, L.L.C. v. Google, Inc. et al

Filing 42

Joint MOTION Entry of Docket Control and Discovery Orders by Function Media, L.L.C., Google, Inc., Yahoo!, Inc.. (Attachments: # 1 Exhibit A - Docket Control Order# 2 Exhibit B - Discovery Order)(Bunt, Robert)

Function Media, L.L.C. v. Google, Inc. et al

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Case 2:07-cv-00279-CE

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION FUNCTION MEDIA, L.L.C. Plaintiff, v. GOOGLE, INC. and YAHOO!, INC., Defendant. JURY DEMANDED Civil Action No. 2:07-CV-279-TJW

JOINT MOTION TO ADOPT PROPOSED DOCKET CONTROL ORDER AND PROPOSED DISCOVERY ORDER In accordance with the Court's instructions at the January 8, 2008 Status Conference, the parties jointly and timely submit (a) an agreed proposed Docket Control Order (Exhibit A) and (b) an agreed proposed Discovery Order (Exhibit B). The parties jointly respectfully request that Exhibit A and Exhibit B be adopted by the Court in their entirety. For the Court's convenience, a master schedule of case events (as memorialized in Exhibit A and Exhibit B) is included below. Those case events which are highlighted in yellow below were not included in the blank forms provided by the Court at the January 8, 2008 Status Conference, but the parties respectfully request that these case events be included in Exhibit A or Exhibit B, as applicable. Finally, please note that the parties have agreed to the discovery limitations set forth in paragraph 4 of the proposed Discovery Order (Exhibit B), and these proposed discovery limitations are also set forth below. STEP 1. 2. 3. EVENT Deadline to submit Agreed Protective Order to Court Comply with P.R. 3-1: Plaintiff's Disclosure of Asserted Claims and Infringement Contentions. Comply with P.R. 3-2: Plaintiff's initial document production with regard to categories set forth in P.R. 3-2 DUE DATE February 25, 2008 March 3, 2008 March 3, 2008

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Dockets.Justia.com

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STEP 4.

EVENT Deadline to submit Initial Disclosures by all parties: -Paragraph 1(a)-(g) disclosures from Discovery Order

DUE DATE March 24, 2008

5. 6. 7.

Deadline to join additional parties Deadline to submit computation of damages pursuant to Paragraph 3(c) of Discovery Order Deadline for parties to produce all documents, electronically stored information, and tangible things that are relevant to the pleaded claims or defenses involved in this action, except to the extent these disclosures are affected by the times limits set forth in the Patent Rules for the E.D. of Texas (as required by Discovery Order at Paragraph 3(b)) Deadline for producing the documents and authorizations described in Local Rule CV-34 Comply with P.R. 3-3: Defendants' Invalidity Contentions. Defendants' document production under P.R. 3-4 Deadline to exchange privilege logs Deadline for letter to the Court stating that there are no disputes as to claims of privileged documents Comply with P.R. 4-1: Exchange Proposed Terms and Claim Elements for Construction by all parties Comply with P.R. 4-2: Exchange Preliminary Claim Constructions and Identification of Extrinsic Evidence Comply with P.R. 4-3: Joint Claim Construction and Prehearing Statement Parties to exchange declarations from experts, if any, regarding claim construction issues Deadline to amend pleadings without leave of court (unless the amendment seeks to add a new patent in suit) Deadline to respond to amended pleadings Close of claim construction discovery Comply with P.R. 4-5(a): Plaintiff's Opening Claim Construction Brief Comply with P.R. 4-5(b): Defendants' Opposing Claim Construction Brief 2

September 30, 2008 April 30, 2008 June 30, 2008

8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

April 30, 2008 May 30, 2008 May 30, 2008 June 30, 2008 August 29, 2008 October 1, 2008 December19, 2008 January 30, 2009 February 20, 2009 April 20, 2009 May 6, 2009 March 27, 2009 April 9, 2009 April 30, 2009

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STEP 22. 23. 24.

EVENT Comply with P.R. 4-5(c): Plaintiff's Reply Claim Construction Brief Technical Tutorials on DVD Comply with P.R. 4-5(d): Parties shall jointly submit a claim construction chart on computer disk in WordPerfect format or in such other format as the Court may direct. Claim Construction Hearing Party with burden of proof to designate Expert Witnesses other than claim construction; Expert reports due Comply with P.R. 3-8: Production of Opinions of Counsel and related documents; privilege logs related to subject matter of opinions of counsel Designate Rebuttal Expert Witnesses other than claim construction; Expert reports due Close of discovery Plaintiff to identify trial witnesses Mediation to be completed Defendants to identify trial witnesses Deadline for filing dispositive motions and motions requiring a hearing (including Daubert motions). Deadline for Notice of Request for Daily Transcript or Real Time Reporting of Court Proceedings

DUE DATE May 13, 2009 July 29, 2009 July 31, 2009

25. 26.

August 12, 2009 at 9:00 am in Marshall, Texas 15 days after claim construction ruling 15 days after claim construction ruling 30 days after claim construction ruling September 18, 2009 September 18, 2009 October 2, 2009 October 2, 2009 October 2, 2009 October 2, 2009

27.

28. 29. 30. 31. 32. 33. 34. 35.

Response to Dispositive Motions (including Daubert October 24, 2009 Motions) NOTE: Responses to Dispositive Motions filed prior to the Dispositive Motions deadline, including Daubert Motions, shall be due in accordance with Local Rule CV-7(e)

36.

Pre-trial disclosures (witness list, depo designations, exhibit list) 3

October 2, 2009 or 30 days before jury selection, whichever

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STEP 37.

EVENT is later Objections to pre-trial disclosures

DUE DATE October 16, 2009 or 16 days before jury selection, whichever is later. October 22, 2009, or 10 days before jury selection, whichever is later October 2, 2009 October 24, 2009 3 pm Central on October 26, 2009, or 3 pm on the day before the Pretrial Conference, whichever is later October 27, 2009 at 9:00 am in Marshall, Texas November 2, 2009 in Marshall, Texas

38.

Joint Pretrial Order, Joint Proposed Jury Instructions, and Form of the Verdict Motions in limine due Responses to Motions in limine due Deadline to confer and advise the Court which motions in limine are agreed to

39. 40. 41.

42. 43.

Pretrial Conference Jury Selection

The parties further state as follows: P.R. 2-1(a)(2) The parties agree that there will be no live testimony at the claim construction hearing. The parties' agreements are detailed in the above chart. Each side will have equal time at the claim construction hearing. Plaintiff will argue first, followed by Defendants, followed by Plaintiff to the extent Plaintiff has reserved time for rebuttal. Plaintiff's rebuttal time will be determined by Judge Ward's and Judge Everingham's standard procedure for same. At this time, the parties do not believe that a claim construction prehearing conference is necessary. This case will involve a significant volume of confidential information, and the parties request authorization to file that material under seal. 4
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P.R. 2-1(a)(3) P.R. 2-1(a)(4)

P.R. 2-1(a)(5)

P.R. 2-1(a)(6)

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With respect to the Discovery Order, the parties agree as follows: "The discovery in this cause is limited to the disclosures described in paragraphs 1 and 3 of the Discovery Order together with the following: (a) Interrogatories: Plaintiff shall have 45 interrogatories, of which 15 interrogatories may be served on each defendant, and 15 interrogatories may be served jointly on the defendants. The two named defendants shall have, collectively: 45 interrogatories, of which 15 shall be common to the defendants. (b) Requests for Admission: Plaintiff shall have 90 requests for admission, of which 30 requests for admission may be served on each defendant, and 30 requests for admission may be served jointly on the defendants. The two named defendants shall have, collectively: 90 requests for admission, of which 30 shall be common to the defendants. (c) the depositions of the parties pursuant to F.R.C.P. 30(b)(6); (d) depositions on written questions of custodians of business records for third parties; (e) 120 hours of nonparty fact witness depositions (i.e., non 30(b)(6) depositions) per side; (f) depositions of each testifying expert tendered by a party, per the Federal Rules of Civil Procedure; and (g) 6 expert witnesses per side, not including experts on claim construction issues. `Side' means a party or a group of parties with a common interest. All discovery to which defendants are entitled shall be divided equally between each defendant, unless the defendants agree otherwise. Any party may move to modify these limitations for good cause."

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Dated: January 22, 2008

Respectfully submitted, By: /s/ Elizabeth L. DeRieux with permission by Robert Christopher Bunt S. Calvin Capshaw State Bar No. 03783900 Elizabeth L. DeRieux State Bar No. 05770585 Brown McCarroll, L.L.P. 1127 Judson Road, Suite 220 Longview, TX 75601 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Email: [e-mail] Max L. Tribble, Jr. State Bar No. 20213950 Joseph S. Grinstein State Bar No. 24002188 Susman Godfrey, LLP 1000 Louisiana, Suite 5100 Houston, Texas 77002-5096 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] E-mail: [e-mail] Nicholas F. Daum State Bar No. 236155 Susman Godfrey, LLP 1901 Avenue of the Stars, Suite 950 Los Angeles, CA 90067 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] Charles Ainsworth Parker Bunt & Ainsworth 100 E Ferguson, Suite 1114 Tyler, TX 75702 Telephone: [phone] Facsimile: [phone] Email: [e-mail] 6

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Franklin Jones, Jr. Jones & Jones 201 W Houston Street P.O. Drawer 1249 Marshall, TX 75670 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Robert Christopher Bunt Parker, Bunt & Ainsworth, P.C. 100 East Ferguson, Ste. 1114 Tyler, TX 75702 Telephone: [phone] Facsimile: [phone] Email: [e-mail] ATTORNEYS FOR PLAINTIFF FUNCTION MEDIA, L.L.C.

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By: /s/ Thomas B. Walsh, IV (by permission) Juanita R. Brooks - Lead Attorney (CA SBN 75934) E-mail: [e-mail] Jason W. Wolff (CA SBN 215819) E-mail: [e-mail] Fish & Richardson P.C. 12390 El Camino Real San Diego, CA 92130 Telephone: [phone] Facsimile: [phone] Thomas B. Walsh, IV Texas Bar No. 00785173 E-mail: [e-mail] Fish & Richardson P.C. 5000 Bank One Center 1717 Main Street Dallas, TX 75201 Telephone: [phone] Facsimile: [phone] Harry L. Gillam, Jr. Texas Bar No. 07921800 E-mail: [e-mail] Melissa R. Smith Texas Bar No. 24001351 E-mail: [e-mail] GILLAM & SMITH, L.L.P. 303 South Washington Avenue Marshall, TX 75670 Telephone: [phone] Facsimile: [phone] ATTORNEYS FOR DEFENDANT AND COUNTER-CLAIMANT GOOGLE INC.

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By: /s/ David J. Healey with permission by Robert Christopher Bunt David J Healey Weil Gotshal & Manges- Houston 700 Louisiana, Suite 1600 Houston, TX 77002-2784 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Douglas E Lumish Weil Gotshal & Manges- Redwood Shores 201 Redwood Shores Parkway Redwood Shores, CA 94065 Telephone: [phone] Facsimile: [phone] Email: [e-mail] ATTORNEYS FOR DEFENDANT YAHOO!, INC.

CERTIFICATE OF SERVICE I hereby certify that counsel of record who are deemed to have consented to electronic service are being served this 22nd day of January, 2008, with a copy of this document via the Court`s CM/ECF system per Local Rule CV-5(a)(3). Any other counsel of record will be served by electronic mail, facsimile transmission and/or first class mail on this same date. /s/ Robert Christopher Bunt Robert Christopher Bunt

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