ESN LLC v. Cisco Systems, Inc. et al

Filing 171

RESPONSE to Motion re 170 SEALED MOTION to Consolidate the Hearings on the Pending Motions Currently Before the Court filed by Cisco Systems, Inc., Cisco-Linksys LLC. (Smith, Kevin)

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ESN LLC v. Cisco Systems, Inc. et al Doc. 171 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION ESN, LLC, Plaintiff, v. CISCO SYSTEMS, INC., and CISCO-LINKSYS, LLC, Defendants. ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 5:08-cv-20-DF JURY TRIAL DEMANDED DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION TO CONSOLIDATE THE HEARING ON THE PENDING MOTIONS CURRENTLY BEFORE THE COURT Defendants Cisco-Systems, Inc. and Cisco-Linksys, LLC (collectively "Cisco") respectfully submits this response to ESN's Motion to Consolidate the Hearing on the Pending Motions Currently Before the Court. Currently scheduled for oral argument on November 20, 2009 are four motions: (1) Cisco's Motion to Dismiss for Lack of Standing (Dkt. No. 71); and (2) ESN's Motion to Disqualify Counsel and Impose Sanctions on Defendants and Their Counsel (Dkt. No. 73) (3) Cisco's Motion to Compel an Answer to Interrogatory No. 7 (Dkt. No. 123); and (4) Cisco's Motion Pursuant to Patent Local Rule 3-6(b) for Leave to Supplement Their Invalidity Contentions (Dkt. No. 124) (collectively "the four scheduled motions"). ESN asks the Court schedule oral argument on two additional motions on the same day as the four scheduled motions: (1) ESN's Motion for Discovery Sanctions (Dkt. No. 146); and (2) Cisco's Motion for a Protective Order (Dkt. No. 151). Should the Court, in its discretion, grant ESN's request, Cisco will be prepared to argue all six motions at the November 20, 2009 hearing. 1 Nevertheless, Cisco believes that consolidation of these two additional motions is not warranted for the following reasons. First, the four scheduled motions will already account for two hours of scheduled argument. These four fully briefed motions concern very important issues, including a motion to disqualify counsel and a motion to dismiss the complaint. The two additional motions that ESN seeks to add to the November 20, 2009 hearing also concern important issues, including ESN's request for terminating sanctions and ESN's attempts to depose several of Cisco's attorneys. One motion, ESN's Motion for Discovery Sanctions, has not yet been fully briefed.1 Each of these highly important motions is deserving of the Court's full attention and full argument from the parties. If, in the Court's discretion, there is sufficient time to argue and consider all these motions at the November 20, 2009 hearing, Cisco has no objection to arguing all six on that date. Second, ESN bases its Motion to Consolidate in part on its contention that "Cisco is considering whether or not it still intends to pursue" its Motion to Compel an Answer to Interrogatory No. 7. ESN states that its response to Cisco's Interrogatory No. 8 "substantially overlaps the information requested by Interrogatory No. 8." The information requested by Interrogatory No. 7 is substantially broader than the information requested by Interrogatory No. 8. The Motion to Compel is therefore not moot, and Cisco fully intends to pursue a response. For the foregoing reasons, Cisco requests that the Court allow the hearing to go forward as scheduled. ESN states that Cisco's sur-reply is due today, Friday November 13, 2009. That is incorrect. ESN filed its Reply on November 4, 2009 (Dkt. No. 164.) Local Rule CV-7(f) provides Cisco five days to file its sur-reply. Under Federal Rule of Civil Procedure 6(d), because ESN served Cisco electronically, three days are added. Under Federal Rule of Civil Procedure 6(a)(2), weekends and Veterans Day (November 11) are excluded. As a result, Cisco's sur-reply is due Monday, November 16, 2009. 2 1 DATED: November 15, 2009 Respectfully submitted, By /s/ Kevin A. Smith POTTER MINTON A Professional Corporation MICHAEL JONES Tex. Bar No. 10929400 110 N. College, Suite 500 (75702) P.O. Box 359 Tyler, Texas 75710 Telephone: (903) 597-8311 Facsimile: (903) 593-0846 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP CHARLES K. VERHOEVEN LEAD COUNSEL Cal. Bar No. 170151 KEVIN A. SMITH Cal. Bar No. 250814 MATTHEW D. CANNON Cal. Bar No. 252666 50 California St., 22nd Floor San Francisco, California 94111 Telephone: (415) 875-6600 Facsimile: (415) 875-6700 VICTORIA F. MAROULIS Cal. Bar No. 202603 SAYURI K. SHARPER Cal. Bar No. 232331 3 555 Twin Dolphin Dr., Suite 560 Redwood Shores, California 94065 Telephone: (650) 801-5000 Facsimile: (650) 801-5100 Attorneys for Defendants Cisco Systems, Inc. and Cisco-Linksys, LLC 4 CERTIFICATE OF SERVICE I hereby certify that on the date this proof of service is signed below, I served the foregoing: DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION TO CONSOLIDATE THE HEARING ON THE PENDING MOTIONS CURRENTLY BEFORE THE COURT by email and via the Court's Electronic Filing System to George P. McAndrews Thomas J. Wimbiscus Peter J. McAndrews Gerald C. Willis Paul W. McAndrews Matthew N. Allison Heather Bjella Holly Mack McAndrews, Held & Malloy 500 West Madison, Suite 3400 Chicago, IL 60661 Telephone 312(775-8000 Fax (312) 775-8100 Eric M. Albritton Albritton Law Firm P.O. Box 2649 Longview, Texas 75606 Telephone (903) 757-8449 Fax (903) 757-2323 5 T. John Ward Ward & Smith Law Firm 111 West Tyler Street Longview, Texas 75601 Telephone (903) 757-6400 Fax (903) 757-2323 Date: November 15, 2009 /s/ Kevin A. Smith 6

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