EMG Technology, LLC v. Apple, Inc.

Filing 176

Agreed MOTION to Amend/Correct the Docket and Discovery Orders by EMG Technology, LLC, Apple, Inc., American Airlines, Inc., Dell Inc.. (Attachments: # 1 Text of Proposed Order)(Ainsworth, Charles)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION EMG TECHNOLOGY, LLC, Plaintiff, v. APPLE INC., AMERICAN AIRLINES, INC., DELL, INC., HYATT CORPORATION, MARRIOTT INTERNATIONAL, INC., & BARNES & NOBLE, INC., Defendants. AGREED MOTION TO MODIFY THE DOCKET CONTROL AND DISCOVERY ORDERS The Court's July 20, 2009 Docket Control Order states that Defendants shall comply with P.R. 3-3 and P.R. 3-4 by August 21, 2009. (Dkt. #100). The Court has subsequently granted motions so that Defendants must now comply with P.R. 3-3 and P.R. 3-4 by November 11, 2009. (See Dkt. #163.) Plaintiff EMG Technology, LLC ("EMG") and defendants Apple Inc. Case No. 6:08-cv-447-LED JURY TRIAL DEMANDED

("Apple"), American Airlines, Inc. ("American"), and Dell, Inc. ("Dell") have met and conferred and agreed that it is in each of their interests to further extend the date by which defendants Apple and American must comply with P.R. 3-3 and P.R. 3-4 until December 11, 2009. 1 Plaintiff EMG and Defendant Dell, which first appeared in this case on November 6, 2009, are meeting and conferring regarding a proposed schedule with respect to Defendant Dell for compliance with P.R. 3-1, 3-2, 3-3 and 3-4 and the events in the Court's July 20, 2009 Discovery Order (Dkt. #99) and will submit a proposal regarding the same for the Court's consideration.

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Defendants Hyatt Corporation; Marriott International, Inc.; and Barnes & Noble, Inc. have not yet answered Plaintiff's Fifth Amended Complaint.

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In addition, the Court's July 20, 2009 Discovery Order (Dkt. #99) specifies that (1) Plaintiff is to produce documents relevant to any claim for relief or defensive matter other than those addressed in the Patent Rules (paragraph 2.B.), (2) Defendants will begin rolling document production (paragraph 2.C.i.), and (3) the parties will produce a complete computation of any category of damages (paragraph 2.D.) by October 19, 2009. The Court has subsequently granted a motion so that these three dates are extended to November 16, 2009. (See Dkt. #163.) Plaintiff EMG and Defendants Apple and American have further agreed that it is in each of their interests to extend the dates by which (1) EMG must produce documents to Apple and American under paragraph 2.B. of the Discovery Order, (2) defendants Apple and American must begin rolling document production under paragraph 2.C.i. of the Discovery Order, and (3) plaintiff EMG and Defendants Apple and American must produce to each other a complete computation of any category of damages under paragraph 2.D. of the Discovery Order to December 16, 2009. In addition, the Court's July 20, 2009 Discovery Order (Dkt. #99) specifies that (1) Defendants shall complete their production of documents, data compilations and tangible things in the possession, custody, or control of the defendants that are relevant to the parties pleaded claims or defenses (except for email and source code) by December 18, 2009 (paragraph 2.C.iii.), and that (2) the parties shall exchange privilege logs by December 18, 2009 (paragraph 5.). The Court has subsequently granted a motion so that these dates are extended to January 15, 2010. (See Dkt. #163.) Plaintiff EMG and Defendants Apple and American have further agreed that it is in each of their interests to extend the dates by which (1) defendants Apple and American shall complete their production of documents, data compilations and tangible things in their respective possession, custody, or control that are relevant to their respective pleaded claims or defenses (except for email and source code) under paragraph 2.C.iii. of the Discovery

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Order, and (2) plaintiff EMG and defendants Apple and American exchange privilege logs with each other under paragraph 5. of the Discovery Order to February 15, 2010. Accordingly, plaintiff EMG and defendants Apple and American respectfully request that the Court modify: A. the Docket Control Order so that the date by which defendants Apple and American must comply with P.R. 3-3 and P.R. 3-4 is extended from November 11, 2009 to December 11, 2009; B. the Discovery Order so that the dates by which (1) plaintiff EMG must produce documents to Apple and American under paragraph 2.B. of the Discovery Order, (2) defendants Apple and American must begin rolling document production under paragraph 2.C.i. of the Discovery Order, and (3) plaintiff EMG and defendants Apple and American must produce to each other a complete computation of any category of damages under paragraph 2.D. of the Discovery Order are extended from November 16, 2009 to December 16, 2009; and C. the Discovery Order so that the dates by which (1) defendants Apple and American shall complete their production of documents, data compilations and tangible things in their respective possession, custody, or control that are relevant to their respective pleaded claims or defenses (except for email and source code) under paragraph 2.C.iii. of the Discovery Order, and (2) plaintiff EMG and defendants Apple and American exchange privilege logs with each other under paragraph 5. of the Discovery Order are extended from January 15, 2010 to February 19, 2010. Dated: November 10, 2009 Respectfully Submitted, By: /s/ Charles Ainsworth Charles Ainsworth 3

State Bar No. 00783521 Robert Christopher Bunt State Bar No. 00787165 PARKER, BUNT & AINSWORTH, P.C. 100 E. Ferguson, Suite 1114 Tyler, TX 75702 903/531-3535 903/533-9687 E-mail: [e-mail] E-mail: [e-mail] Robert D. Becker (Cal. Bar No. 160648) Shawn G. Hansen (Cal. Bar No. 197033) MANATT, PHELPS & PHILLIPS, LLP 1001 Page Mill Road, Building 2 Palo Alto, CA 94304 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] E-mail: [e-mail] Stanley M. Gibson (Cal. Bar No. 162329) Joshua S. Hodas, Ph.D. (Cal. Bar No. 250812) JEFFER, MANGELS, BUTLER AND MARMARO, LLP 1900 Avenue of the Stars, Seventh Floor Los Angeles, CA 90067 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] E-mail: [e-mail] ATTORNEYS FOR PLAINTIFF EMG TECHNOLOGY, LLC

By: /s/ John R. Lane with permission by Charles Ainsworth David J. Healey Texas Bar No. 09327980 Garland T. Stephens Texas Bar No. 24053910 John R. Lane Texas Bar No. 24057985 FISH & RICHARDSON P.C. 1221 McKinney Street

By: /s/ Russell J Genet with permission by Charles Ainsworth Ronald F. Lopez Lead Attorney Nixon Peabody LLP One Embarcadero Center, 18th Floor San Francisco, CA 94111 Tel: [phone] Fax: [phone] Email: [e-mail]

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Suite 2800 Houston, TX 77010 Tel: [phone] Fax: [phone] Email: [e-mail] Email: [e-mail] Email: [e-mail] ATTORNEYS FOR DEFENDANTCOUNTERCLAIM PLAINTIFF, APPLE INC.

Constance M. Boland Nixon Peabody LLP 437 Madison Avenue New York, NY 10022 Tel: [phone] Fax: [phone] Email: [e-mail] Russell J Genet Nixon Peabody LLP 300 S Riverside Plaza 16th Floor Chicago , IL 60606 312-425-8516 Fax: [phone] Email: [e-mail] Elizabeth L. DeRieux Texas Bar No. 05770585 S. Calvin Capshaw Texas Bar No. 03783900 Daymon Jeffrey Rambin Texas Bar No. 00791478 CAPSHAW DERIEUX LLP 1127 Judson Road, Suite 220 P.O. Box 3999 (75606-3999) Longview, Texas 75601-5157 Tel: [phone] Fax: [phone] E-mail: [e-mail] E-mail: [e-mail] E-mail: [e-mail] E-mail: [e-mail] ATTORNEYS FOR DEFENDANTSCOUNTERCLAIM PLAINTIFFS, AMERICAN AIRLINES, INC. AND DELL, INC.

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CERTIFICATE OF SERVICE I hereby certify that all counsel of record, who are deemed to have consented to electronic service, are being served this 10th day of November, 2009, with a copy of this document via the Court's CM/ECF system per Local Rule CV-5(a)(3). /s/ Charles Ainsworth CHARLES AINSWORTH

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