EMG Technology, LLC v. Apple, Inc.

Filing 109

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of HOTLINE CALL held on 8/5/09 before Judge John Love. Court Reporter/Transcriber: Exceptional Reporting Services, Ind.,Telephone number: [phone]. (17 pgs) NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/8/2009. Redacted Transcript Deadline set for 9/18/2009. Release of Transcript Restriction set for 11/16/2009. (tja, )

EMG Technology, LLC v. Apple, Inc.

Doc. 109

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION

EMG TECHNOLOGY, LLC, Plaintiff, vs. APPLE, INC., ET AL., Defendants.

) ) ) ) ) ) ) ) )

CASE NO:

6:08-CV-0447-LED CIVIL

Tyler, Texas Wednesday, August 5, 2009 (2:31 p.m. to 2:57 p.m.)

HOTLINE CALL BEFORE THE HONORABLE JOHN LOVE, UNITED STATES MAGISTRATE JUDGE

Appearances: Court Recorder: Transcriber:

See next page M. Morris Exceptional Reporting Services, Inc. 14493 S. Padre Island Blvd. Suite A-400 Corpus Christi, TX 78418-5940 361 949-2988

Proceedings recorded by electronic sound recording; transcript produced by transcription service.
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2 APPEARANCES FOR: Plaintiff: CHARLES AINSWORTH, ESQ. ROBERT C. BUNT, ESQ. Parker Bunt & Ainsworth 100 E. Ferguson Suite 1114 Tyler, TX 75702 ROBERT D. BECKER, ESQ. SHAWN G. HANSEN, ESQ. Manatt Phelps & Phillips LLP 1001 Page Mill Road, Bldg. 2 Palo Alto, CA 94304 STANLEY M. GIBSON, ESQ. Jeffer Mangels Butler Marmar LLP - LA 1900 Avenue of the Stars 7th Floor Los Angeles, CA 90067 Apple: DAVID J. HEALEY, ESQ. Fish & Richardson PC Houston 1221 McKinney Street Suite 2800 Houston, TX 77010 ELIZABETH L. DeRIEUX, ESQ. Capshaw DeRieux LLP 1127 Judson Road Suite 220 Longview, TX 75601-5157 STEVEN S. BOYD, ESQ. Locke Lord Bissell & Liddell LLP 600 Travis Street, Suite 3400 Houston, TX 77002-3004 ROBERT L. LEE, ESQ. Alston & Bird - Atlanta One Atlantic Center 1201 W. Peachtree Street Atlanta, GA 30309-3424 Robert Crabbs Ronald Lopez

American Airlines, Bloomberg, L.P.:

Continental Airlines:

United Parcel Service:

Also Present:

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3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I'm sorry. Honor. MS. DeRIEUX: American Airlines. Ron Lopez. This is Elizabeth DeRieux on behalf of Apple. MR. AINSWORTH: Your Honor, this is Charles Ainsworth please. MR. HEALEY: Your Honor, this is David Healey for THE COURT: me call this case. Tyler, Texas; Wednesday, August 5, 2009 2:31 p.m. (Call to Order) Good afternoon, this is Judge Love. Let

This is Case Number 6:08-CV-447, EMG

Technology versus Apple, et al. Let me get announcements from all those on the line,

for EMG and we're ready to proceed. MR. LEE: This is Robert Lee for United Parcel

Services, your Honor. MR. BOYD: This is Steven Boyd for Continental, your

With me on the line are Robert Crabbs and

I also represent Bloomberg. THE COURT: MR. BECKER: All right. Anyone else?

On the line also for EMG is Robert

Becker, your Honor, and also Shawn Hansen. MR. GIBSON: Stan Gibson and Chris Bunt, your Honor.

I forgot to tell the court reporter about Chris

being on the line. THE COURT: All right. Well, thank you. We are

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4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 recording this, so please if you would state your name before you speak that will help us be able to identify the speaker in the future if we need to listen to the recording. right. So, all Let's

Someone lead off, the instigator of the call.

see what the problem is today. MR. HEALEY: Well, Judge, this is Dave Healey for

Apple and I'm the instigator. THE COURT: MR. HEALEY: In a good way, Mr. Healey. The purpose of the call, your Honor, is

to resolve a pretty simple point and a very discreet point. After some back and forth, we got the file, infringement contentions from the plaintiff on July 15th. On July 17th, we

asked for a 30(b)(6) deposition on the infringement contentions. We asked for August 12th, but basically it's any

time, any day, any place and we've said this repeatedly, prior to the time our invalidity contentions are due, which is August 21. The plaintiff has said they cannot make a person available to give a 30(b)(6) on the infringement contentions until September. Our complaint is that we have a right to take We have a right to

a 30(b)(6) on the infringement contentions.

take that deposition so that we can be informed to make our invalidity contentions and that right is meaningless. It has

been negated by the plaintiff simply refusing to put up a person.
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5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We are willing to take any day of the week and will take it any place. It's 101 degrees in Houston today, so I

suggest we do not take it in Houston, but we'll take it Houston, LA, Tyler, Saturday, Sunday, Monday, whatever. But

the point is is that the rules allow us to take a 30(b)(6) on the infringement contentions. The purpose of that is to inform

our invalidity contentions and subsequently the 4-1 and 4-2 et cetera claim construction positions and just because the timing of that falls between July 15th when we get their final contentions and August 21 when our invalidity contentions are due and a lot of people are on vacation and what not, doesn't negate our right to take the deposition before the invalidity contentions have to be served. And so, really, all we're doing, you know, we're just asking the Court to require that the plaintiff give us a 30(b)(6) deposition on their infringements contentions prior to the time our invalidity contentions are due on a day of their choosing, in a place of their choosing, at a time of their choosing; although, in all fairness, not August 19th or 20th, but other than that, we are saying give us a date, give us a place, give us a time and we'll be there. THE COURT: MR. BECKER: Okay. Thank you. Response? Our

Your Honor, this is Robert Becker.

response is, of course, we're willing to give them a witness. The issue is that we have a client that is very small.
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6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of June. Essentially, it is one person and that one person is unavailable until September 12. We could hire somebody to come in and speak on behalf of the company for this express purpose, but getting that person prepared in essentially a week's time, which is what Mr. Healey is asking for, is just not going to be possible. It's

just not physically possible to bring a stranger in and get him up to speed on our picks sufficient for Mr. Healey's deposition. I would say that actually our picks were served at the beginning of June. There has been some additive been

requested that have been made at the request of the defendants, but there haven't been an addition of new products. hasn't been an addition of new contentions. been cleaning up typos and things like that. So, they've had the contentions since the beginning We would like to give them this deposition, but we There

There has simply

really can't prepare someone in a week. THE COURT: Well, Mr. Becker, let me ask you this.

Is there an objection to extending the three invalidity contention deadlines so they can take their deposition? there a problem with that? MR. BECKER: Well, we feel for business reasons that Is

I'm not entitled to disclose that we would definitely prefer not to do that. It is possible.

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7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 One thing I would add, though, is I don't see any relationship between our infringement contentions and -- excuse me, this deposition on our contentions, you know, how they were put together, that sort of thing -- and the invalidity contentions and I never heard any argument as to how they're linked or why they should be linked. THE COURT: Well, Mr. Healey, let me ask you that.

Why do you need this deposition to prepare your invalidity contentions? MR. HEALEY: your Honor. Well, let me give you two responses,

First, just as a matter of practice under the

rules, there is a 45 day or so time period typically -- maybe it's longer -- between the infringement contentions and the invalidity contentions and it's also clear that the infringement contentions come either shortly before the preliminary conference or shortly after and during this time period, we're allowed to take discovery to understand what the infringement contentions are and that informs the invalidity contentions because, as the Court is aware, in every patent case it's a seesaw, so to speak, between infringement and invalidity. The narrower and more focused infringement

contentions are the less prior art will apply, the more broadly your infringement contentions are made, the more prior art needs to be charted, the more prior art comes into the picture. The original contentions given to us whatever date it
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8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was in June and then we did have back and forth about problems we raised with what we were provided and that resulted in some modifications, changes, whatnot up through the final version given us July 15th. What we believe and I know the Court doesn't have these in front of him and I don't want to get into the substance of the contentions, because we believe there's a procedural right to take the deposition and the fact that (1) their client's on vacation or out of pocket `til September 12th so it's inconvenient for him to give a deposition; (2) that for business reasons that they can't disclose, they don't want to extend our August 21 deadline because of their client's vacation or to take the time to get someone else up to speed and the fact that as of the time we started asking for this deposition, July 17th, they at that time started making arrangements for it, puts us in a position where we have a right to take the deposition under the rules. The rules contemplate this. In their reasoning for

denying us the deposition and not moving the deadline is (1) their client's on vacation `til September, (2) he doesn't want to move the August 21 deadline because it's inconvenient for him for business reasons and (3) they haven't really started to work with anybody to get them up to speed on the case. And

those are three bad reasons to deny us procedural right under the rules.
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9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Now, if the Court wanted to, we could get into the specifics of their contentions and where we feel there's potentially a dramatic difference between the (indiscernible) prior art that would need to be charted in the invalidity contentions or not, but I don't even think we need to get there, because we have a procedural right to the depo and they don't have a good reason not to give it to us other than it will disrupt their client's vacation or it will mess up his business plans if he doesn't get their invalidity contentions by August 21 or they'd have to try really hard to find someone who could get ready for the deposition, you know, by August 15th, 16th, whatever. THE COURT: Okay. Let me ask. Does anyone else on

the line want to be heard on this? just giving you an opportunity. MR. BUNT:

And you don't have to; I'm

Your Honor, this is Chris Bunt, if I may It's my

be heard, as well, on behalf of the plaintiff.

understanding that Judge Ward in the Jacobs Chuck case has denied some early efforts at 30(b)(6) depositions on infringement positions. I know that your Honor has allowed

some discovery on non infringement positions in at the Performance Pricing case, but I'm not aware of any cases where the depositions have been allowed or sanctioned by the Court before invalidity contentions have come out. So, I would just point that out for your Honor.
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That

10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 maybe there are some cases but I've not been privy to them or aware of them. MR. HEALEY: Your Honor and Chris, I don't recall the

exact timing of it, but if you will recall in the ABG cases before Judge Davis, Judge Davis did allow a 30(b)(6) on the infringement contentions up front and then when ABG invoked privilege as to most of the questions, Judge Davis overruled the objections on privilege and ordered a second deposition on that. So, you know, the bottom line is that what I'm talking about isn't new. The ABG cases -- that was a couple of

years ago -- and it's not unusual for a party to ask for a 30(b)(6) on infringement contentions. And here, I don't -- you know, Mr. Becker explicitly said they don't have a problem giving us the deposition, it's just inconvenient because of their client's vacation and his business reasons, so not moving any validity deadline or finding someone to fill in. It's not that they have a

substantive objection to giving it to us. MR. BECKER: not an inconvenience. Your Honor, it's Robert Becker. It's

We have a company that has no witness

that's prepared to give this testimony, so we would have to create that person, find a person, be it the principal of the client or be it someone we hire and then educate them. And,

you know, that's going to be quite difficult and I would say to
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11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Healey's point about him needing his deposition for the invalidity contentions is we have no intention of providing a witness who is going to alter our contentions. Our contentions

are on paper and the person would be discussing that piece of paper. But we are not going to change our contentions between

now and the time that the validity contentions are due. MR. HEALEY: And your Honor, we would not expect them

to change them, but for example, what happens is they give us an infringement contention that basically says iTeens Music Store with iPhone, Apple TV and Front Row each do this. And

again, I don't want to get into the merits of it, but we're entitled to ask, "Okay, you say that the claim says there's some type of transformation or association. occur?" Where does that

You can't just say it occurs in these four products We're entitled to know factually where that occurs. THE COURT: Well, let me ask you this, Mr. Healey.

somewhere.

What is your position on how this -- what you're asking for relates to Patent Rule 2-5? Now, I'm not saying that you're

not entitled to that deposition you're asking for, of course, but I'm just wondering whether you're potentially going to run into an issue, you know, you could run into an issue asking questions maybe you're putting forward an objection to them based upon 2-5 that they're premature. MR. HEALEY: Oh, I think that's a fair point, your

Honor, and that's our burden to make sure that we ask
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12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 appropriate questions, just as it's our burden or the taker of any 30(b)(6) deposition to ask appropriate questions and it would not be a reason to deny the deposition on the presumption that the person taking the deposition would not ask appropriate questions. But that being said, what we're looking to ask for is a factual question. And this is the example, your Honor.

There is in these claims, for example, a limitation that requires an association with a sister site. If that

association is simply as a factual matter that the same browser can look at both sites or the same corporation sponsors both sites, then the scope of the prior art goes back to 1994 and 1995 when browsers could do that. If, on the other hand, that association is factually based on an execution of some type of computer code or an operation or other type of process, then that prior art's going to be much different than it would be in the former case. so, a factual answer to these questions is a dramatic difference in both a period or the length of time that we might look for prior art, as well as the amount of prior art and the type of prior art we would chart. And again, you know, the fact that, you know, you have a patent holding company that's been put together to enforce the patent, fine; the fact it's summertime, it's vacation, fine; the fact they don't want to move the invalidity
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And

13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 heard? heard? Okay. Well, here's what I'm going to do. I am not contention date for their own business reasons, you know, those are all fine. But -- and the fact they may have objections to

the form or substance of the questions we ask, that's fine. That comes up all the time when you're trying to take depositions with a non-practicing entity in the summer. But that doesn't mean we're denied the right to take the deposition because it's inconvenient for them or because circumstances are such that they'd rather not do it for their business reasons. THE COURT: Okay. All right. Anyone else want to be

Anyone who has not already spoken that wants to be

- let me tell you a couple of things that I'm not doing here. I'm not holding that there's necessarily a right to take a 30(b)(6) deposition of a plaintiff prior to invalidity contention due date. However, I'm also not saying and you'll see this by what I'm going to ultimately do that there is not the possibility that an accused infringer can take a deposition such as is being requested prior to invalidity contentions being put forward. In other words, there is nothing that prevents this from taking place, but I'm not saying that there's a right to do this. What I am interpreting from what I'm hearing is that
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14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 essentially the defendant, Mr. Healey's client, is making a request -- this is the way I'm interpreting this -- that this deadline be extended for a period of time until they can take this deposition. I'm going to do that. I want you all to agree on an

invalidity contention due date that is after this deposition takes place. Apparently, it will happen after September 12th;

so, I'm foreseeing, say, a September 14th deposition and a couple of days later -- three or four days later -- the invalidity contention due date comes into effect. Now, that's the only date I'm moving back. I'm not If

moving back any other dates that are set on August 21st.

you need relief from those dates, you'll have to follow that up, but again, deposition to be taken post September 12th -hopefully as soon after that as possible; invalidity contention due date as soon thereafter as possible. on you all to agree on those dates. Now, as to the deposition, I'm also not saying that the plaintiff cannot raise any proper objection to questions put forward in the deposition. I mentioned Patent Rule 2-5; And I'm going to rely

there may be other objections that can properly be lodged and those will have to be addressed at that time or thereafter if Court intervention is required. But I think I'm going to allow Apple to ask some questions -- proper questions. Objections can be lodged to

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15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 improper questions and I'm going to give a little bit of leeway on deadlines. I don't see any reason why this deadline can't I don't think it's going to hurt

be extended a few weeks. anything.

I think they'll get their deposition; they'll get

the invalidity contentions and then everybody can move forward. All right. MR. HEALEY: THE COURT: MR. LEE: Robert Lee for UPS. THE COURT: MR. LEE: Yes. Any questions regarding what I've done? No, your Honor. All right. Thank you very much. Any objections? This is

Thank you.

Your Honor, real quick, if I may.

I just would note that both UPS and

Continental served similar notices and otherwise agree to follow the same scheduling as it may arise on the Apple depositions. So, I just would note that for the record that we

would work under the same restrictions or otherwise under the same scheduling the Court's proposing. THE COURT: MR. HEALEY: MR. LOPEZ: Any objection to that from the plaintiff? No, your Honor. Your Honor, Ron Lopez on behalf of

American Airlines and we are joining in this and would follow the same schedule. THE COURT: Okay. Well, let me say this as far as You guys, of course, what I'm

all these multiple defendants.

hearing the request is is that this is sort of directed toward
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16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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the invalidity contentions.

You all work together to

streamline the questioning and not make it repetitive and, you know. You all may be faced with certain objection, as well, so

you all be prepared for that; but my main point being streamline it between defendants as much as possible. And let me reiterate here what I said before. not saying that there's necessarily a right to take this deposition, but I'm finding in this particular case that it's not unreasonable to make this request and to get this done this way. All right. MR. HEALEY: here. MR. LOPEZ: THE COURT: Thank you, your Honor. All right. Thank you. Good luck with it Anything else from anybody? No, your Honor. Not from the plaintiff I am

and we'll talk to you later.

Thank you.

(Proceeding was adjourned at 2:57)

CERTIFICATION

I certify that the foregoing is a correct transcript from the electronic sound recording of the proceedings in the aboveentitled matter.

August 18, 2009

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TONI HUDSON, TRANSCRIBER

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