Rockstar Consortium US LP et al v. Google Inc

Filing 233

MOTION for Extension of Time to Complete Discovery by Rockstar Consortium US LP. (Attachments: # 1 Text of Proposed Order)(Nelson, Justin)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
ROCKSTAR CONSORTIUM US LP
AND NETSTAR TECHNOLOGIES
LLC,
Plaintiffs,

Case No. 2:13-cv-00893-JRG-RSP

v.
GOOGLE INC.,
Defendant.

ROCKSTAR’S MOTION TO EXTEND FACT DISCOVERY CUT-OFF

Rockstar respectfully requests an extension of the fact discovery cut-off by 30 days, from
the current date of January 7, 2015 until February 6, 2015. Such an extension would allow
Rockstar to more effectively complete fact discovery. Due to Google’s delays in producing
documents, Rockstar has been unable to take depositions of Google witnesses. At least four
separate categories of Google’s delay exist that necessitate this motion, any one of which would be
sufficient.
First, despite this Court’s Order at the October 9, 2014 hearing that Google should produce
additional categories of documents, Google has not yet produced a single additional document.
Second, Google has not even started its search of its custodian non-email documents for senior
executives, despite the fact that the parties agreed on search terms. Instead, Google has raised the
argument that it simply does not want to search its custodians’ entire file and wants to limit the
search—an issue that it did not raise at the previous hearing. Third, Rockstar has attempted to meet
and confer in good faith with Google on search terms for email custodians. Rockstar hoped to
complete that process the week after the hearing. Once again, the parties do not dispute the
substance of the terms. Instead, the issue is about how many documents result from the search.
Google has taken a long time to get back to Rockstar on even basic questions such as the hit count
for each search term. It now states that it will not even have a hit count on the proposed terms until
next week—the week of November 3. Fourth, Google has not undertaken a proper search of
custodian non-email documents. Rockstar’s Motion filed on October 24, 2014 outlines these
extensive flaws (Dkt. No. 222). For any of these reasons—let alone a combination of all of
them—a one-month extension of fact discovery is appropriate.
Google will argue prejudice in extending the deadline. This argument is incorrect for two
separate reasons. First, no prejudice will result. The parties can negotiate a schedule that moves
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each of the deadlines by a small amount and together result in a schedule that keeps the trial date
while still permitting this additional month. Second, in the unlikely event any prejudice does
result, it is due to Google’s own inadequate search and document collection.
Rockstar has proposed a draft schedule below that moves the fact discovery deadline by
one month while still keeping the trial date. Rockstar of course remains open to conferring with
Google on any changes it may have. The fundamental point, however, is that it is possible to
propose a schedule with a 30-day fact discovery extension and the current trial date.
CURRENT DATE
Deadline to Complete Fact Discovery

PROPOSED DATE

January 7, 2015

February 6, 2015

Deadline to File Motions to Compel January 12, 2015
Discovery

February 9, 2015

Serve
Disclosures
for
Expert January 19, 2015
Witnesses by the Party with the
Burden of Proof

February 16, 2015

Serve Disclosures for Rebuttal Expert February 16, 2015
Witnesses

March 9, 2015

Deadline
Discovery

March 23, 2015

to

Complete

Expert March 9, 2015

*File Dispositive Motions or Motions March 13, 2015
to Strike Expert Testimony (including
Daubert Motions)

March 27, 2015

No dispositive motion or motion to
strike expert testimony (including a
Daubert motion) may be filed after
this date without leave of the Court.
Serve Pretrial Disclosures (Witness March 16, 2015
List, Deposition Designations, and
Exhibit List) by the Party with the
Burden of Proof

March 30, 2015

Serve
Objections
to
Disclosures; and Serve
Pretrial Disclosures

April 9, 2015

Pretrial March 30, 2015
Rebuttal
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Serve Objections to Rebuttal Pretrial April 6, 2015
Disclosures

April 13, 2015

File Motions in Limine

April 13, 2015

April 6, 2015

The parties shall limit their motions in
limine to issues that if improperly
introduced at trial would be so
prejudicial that the Court could not
alleviate the prejudice by giving
appropriate instructions to the jury.
*File Notice of Request for Daily April 13, 2015
Transcript or Real Time Reporting.

April 20, 2015

If a daily transcript or real time
reporting of court proceedings is
requested for trial, the party or parties
making said request shall file a notice
with the Court and e-mail the Court
Reporter,
Shelly
Holmes,
at
[e-mail].
*File Joint Pretrial Order, Joint April 20, 2015
Proposed Jury Instructions, Joint
Proposed
Verdict
Form,
and
Responses to Motions in Limine

April 27, 2015

*Notify Court of Agreements April 22, 2015
Reached During Meet and Confer

April 29, 2015

The parties are ordered to meet and
confer on any outstanding objections
or motions in limine. The parties shall
advise the Court of any agreements
reached no later than 1:00 p.m. three
(3) business days before the pretrial
conference.
*Pretrial Conference – 9:00 a.m. in April 27, 2015
Marshall, Texas before Judge Roy
Payne

May 4, 2015

*Jury Selection – 9:00 a.m. in June 8, 2015
Marshall, Texas

June 8, 2015

This schedule above demonstrates that it is more than feasible to design a schedule that is
not prejudicial and still extends the discovery deadline. Rockstar opposes any move of the trial
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date. Rockstar believes a 30-day fact discovery extension is appropriate and will not affect the
trial date. And to the extent any conflict between moving the trial date and moving the discovery
deadline exists—which it does not, Rockstar prefers to keep the trial date. In short, Rockstar
should have adequate time to conduct discovery despite Google’s stalling tactics and still keep
the original trial date.

DATED: October 30, 2014

Respectfully submitted,

By: /s/ Justin A. Nelson
Max L. Tribble, Jr. – Lead Counsel
State Bar No. 20213950
Alexander L. Kaplan, State Bar No. 24046185
John P. Lahad, State Bar No. 24068095
Shawn Blackburn, State Bar No. 24089989
SUSMAN GODFREY L.L.P.
1000 Louisiana Street, Suite 5100
Houston, Texas 77002
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Justin A. Nelson, State Bar No. 24034766
Parker C. Folse, III, WA State Bar No. 24895
SUSMAN GODFREY L.L.P.
1201 Third Ave, Suite 3800
Seattle, Washington 98101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Amanda K. Bonn, CA State Bar No. 270891
Meng Xi, CA State Bar No. 280099
SUSMAN GODFREY L.L.P.
1901 Avenue of the Stars, Suite 950
Los Angeles, CA 90067-6029
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Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
T. John Ward, Jr., State Bar No. 00794818
Claire Abernathy Henry, State Bar No. 24053063
WARD & SMITH LAW FIRM
P.O. Box 1231
Longview, TX 75606-1231
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
S. Calvin Capshaw, State Bar No. 03783900
Elizabeth L. DeRieux, State Bar No. 05770585
D. Jeffrey Rambin, State Bar No. 00791478
CAPSHAW DERIEUX, LLP
114 E. Commerce Ave.
Gladewater, TX 75647
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Rockstar Consortium US LP and
NetStar Technologies LLC

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CERTIFICATE OF CONFERENCE
I hereby certify that the parties have met and conferred on the 30th day of October, 2014
and counsel for Defendants are opposed as to the disposition of the matters raised in this motion.

/s/ Justin A. Nelson

CERTIFICATE OF SERVICE
I hereby certify that all counsel of record, who are deemed to have consented to
electronic service are being served this 30th day of October, 2014 with a copy of this document
via the Court’s CM/ECF system per Local Rule CD-5(a)(3).

/s/ Justin A. Nelson

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