Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 1242

MOTION for Leave for Additional Time to Serve Certain Pre-Trial Documents by Google Inc., YouTube, LLC. (Attachments: # 1 Declaration of M. Jones, # 2 Exhibit 1 - 110111 email from Jones, # 3 Text of Proposed Order)(Jones, Michael)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

EOLAS TECHNOLOGIES, INC. AND
THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA

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PLAINTIFFS,
v.
ADOBE SYSTEMS INC., et al.,
DEFENDANTS.

Civil Action No. 6:09-CV-446-LED

JURY TRIAL DEMANDED

GOOGLE, INC. AND YOUTUBE, LLC’S MOTION FOR LEAVE FOR ADDITIONAL
TIME TO SERVE CERTAIN PRE-TRIAL DOCUMENTS
NOW COME Defendants Google, Inc. and YouTube, LLC (together “Google”) and files
this Motion for Leave for Additional Time to Serve Certain Pre-Trial Documents:
As the parties prepare for trial, Google, as well as the other eight Defendants remaining
in the case, have attempted to coordinate, both among themselves and with Plaintiffs Eolas
Technologies, Inc. and the Regents of the University of California (together, “Eolas”), the filings
and exchanges set forth in this Court’s September 15, 2011 Docket Control Order (D.I. 979), and
the subsequent amendments thereto. For example, several of the deadlines in that Order have
been amended through unopposed motion, and the Defendants also did not oppose Eolas’ motion
to expand its number of allowed trial exhibits. Also among the many pre-trial exchanges is that
of the parties’ deposition designations, the date for which this Court set for January 5, 2012 (D.I.
1140), responsive to another unopposed motion.

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While both Google and the combined Defendants have provided designations to Eolas,
despite its best efforts to do so, Google has been unable to successfully coordinate with either the
remaining Defendants or with Eolas so as to be able to provide an exchange on behalf of all the
Defendants that complies with the 10-hour time limit specified in this Court’s August 12, 2011
Standing Order. Google therefore respectfully requests that this Court grant Google leave to
serve pared designations on Eolas on Google’s own behalf in an amount totaling less than 10
hours of testimony, acknowledging that such service cannot now be completed by the original
deadline. In view of this late service, Google understands that Eolas may desire additional time
to respond to these submissions, and Google is committed to continuing to work with Eolas in
setting reasonable goals and deadlines as the parties approach the start of trial in this case.
A.

Google’s Request Regarding Deposition Designations

As both Google and Eolas acknowledge, the Court’s Standing Order of August 12, 2011
provides that “each side is limited to designating no more than 10 hours of deposition testimony
for use at trial absent a showing of good cause.”
While Google has endeavored to meet this limitation, its efforts have been frustrated by
the difficulty in coordinating designations among the eight other Defendants remaining in the
case, and by the continuing uncertainty over which Defendants will be tried together.
Nonetheless, Google has, in its own right, made consistent efforts to comply with this Court’s
Standing Order and Docket Control Order.
Specifically, in advance of the January 5, 2012 deadline for service, Google provided its
own designations to the remaining Defendants in an effort to facilitate compiling a combined list
of designations.

On January 5, Defendants originally served a single set of deposition

designations on Eolas, containing the individual designations for each Defendant. Additionally,
Google served its own designations on Eolas on the same date.
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Summing the individual Defendants’ designations resulted in a number of hours
significantly in excess of this Court’s Standing Order. However, this sum included significant
amounts of overlapping designations, reflecting the designation of the same witnesses by
multiple Defendants. The designations served by Google on January 5 were also in excess of
this Court’s 10-hour limit.
Following a meet & confer on January 9, 2012 with Eolas at which Eolas represented that
it would not necessarily be opposed to a reasonable request for leave to designate additional
testimony, Defendants endeavored to consolidate their designations into a single list to figure out
how much additional time might be requested. This painstaking and time-intensive exercise
proved nearly impossible to coordinate among the Defendants in a manner that would permit
Defendants to make a precise estimate of the total number of hours of designated testimony. The
parties held an additional meet and confer on January 11, 2012, after which Defendants were
able to report that result of their consolidation was an estimate that, while significantly below
Eolas’ original estimate, was still in excess of this Court’s 10-hour limit. Efforts to reduce this
collective number further have proved unsuccessful as Defendants have not collectively been
able to agree on which designations should be eliminated.
Concurrently with Defendants’ effort to consolidate, in view of its increasing concern of
the Defendants’ inability to coordinate their consolidation and reduction of designations, Google
worked independently to reduce the amount of its own designations, and intends to provide Eolas
with revised designations in an amount below this Court’s 10-hour limit. Google also continues
to work with the remaining Defendants on reducing their consolidated designations to an amount
that would be acceptable to Eolas, but Google cannot be sure when such a reduction, on behalf of
all Defendants can be completed.

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Google’s effort in this regard is consistent with a long pattern of communications in
which it has attempted to narrow the issues in the case – thereby also reducing the amount of
deposition designations required. These efforts began at least as early as November 1, 2011,
when counsel for Google contacted counsel for Eolas seeking a reduction in the number of
accused products. (Jones Decl. Ex. 1)1. Numerous communications followed, but Google did
not receive any indication of Eolas’ agreement until January 14, 2012, nine days after the parties’
deposition designations were to be served.
Unable, despite its best efforts, to choreograph the reduction in designations of all the
Defendants or agree with Eolas on narrowing the issues in the case, and unwilling to perpetuate
its non-compliance with this Court’s Standing Order, Google now seeks leave of this Court to
provide Eolas, no later than January 17, 2012 with deposition designations for Google and
YouTube only, with such designations having been trimmed below this Court’s 10-hour limit.
While all of the designations that Google now seeks to provide were included in the original
designations provided by the Defendants, Google remains willing to work with Eolas to the
extent Eolas desires additional time to provide its responsive objections and counterdesignations. To this end, Google suggests that Eolas’ objections and counter-designations be
provided by January 24, 2012, giving Eolas the same one week that had been envisioned by this
Court’s original Order. (D.I. 1140). Thereafter, Google will provide any objections to Eolas’
Counter designations by January 31, 2012.
B.

Conclusion

Acknowledging that, despite its best efforts, it has not complied with this Court’s
Standing Order with respect to the number of hours of deposition designations, Google
1

“Jones Decl. Ex. 1” refers to Exhibit 1 of the January 15, 2012 Declaration of Michael E.
Jones, filed concurrently herewith in support of this Motion.
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respectfully requests that this Court grant Google’s Motion for leave to serve revised Googleand YouTube-specific deposition designations in an amount totaling less than 10 hours of
testimony on January 17, 2012.

Dated: January 15, 2012

Respectfully submitted,

By: /s/ Douglas E. Lumish, with permission by
Michael E. Jones
Douglas E. Lumish
[e-mail]
Jeffrey G. Homrig
[e-mail]
Jonathan K. Waldrop (pro hac vice)
[e-mail]
Joseph H. Lee (pro hac vice)
[e-mail]
Parker C. Ankrum (pro hac vice)
[e-mail]
KASOWITZ BENSON TORRES &
FRIEDMAN LLP
333 Twin Dophin Dr., Suite 200
Redwood Shores, CA 94065
Telephone: [phone]
Facsimile: [phone]

James R. Batchelder (pro hac vice)
[e-mail]
Sasha G. Rao (pro hac vice)
[e-mail]
Mark D. Rowland
[e-mail]
Brandon Stroy (pro hac vice)
[e-mail]
Lauren Robinson (pro hac vice)
[e-mail]
Rebecca R. Hermes (pro hac vice)
[e-mail]
Han Xu (pro hac vice)
[e-mail]
ROPES & GRAY LLP
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1900 University Avenue, 6th Floor
East Palo Alto, California 94303-2284
Telephone: [phone]
Facsimile: [phone]
Michael E. Jones (Bar No. 10929400)
[e-mail]
Allen F. Gardner (Bar No. 24043679)
[e-mail]
POTTER MINTON
A Professional Corporation
110 N. College, Suite 500
Tyler, TX 75702
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR DEFENDANTS
GOOGLE, INC. AND YOUTUBE, LLC
CERTIFICATE OF SERVICE
The undersigned hereby certifies that all counsel of record who are deemed to have
consented to electronic service are being served with a copy of this document via the Court’s
CM/ECF system per Local Rule CV-5(a)(3) on January 15, 2012.

/s/ Michael E. Jones

CERTIFICATE OF CONFERENCE
I hereby certify that counsel for Defendants Google, Inc. and YouTube, LLC has met and
conferred with counsel for Plaintiff and counsel for Plaintiff has indicated that they are opposed
to the relief sought in this motion.
/s/ Michael E. Jones

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