Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 248

RESPONSE in Opposition re 241 MOTION for Extension of Time to File Response/Reply as to 214 MOTION to Change Venue to the U.S. District Court for the Northern District of California Pursuant to 28 U.S.C. 1404(a) MOTION to Change Venue to the U.S. District Court for the MOTION for Extension of Time to File Response/Reply as to 214 MOTION to Change Venue to the U.S. District Court for the Northern District of California Pursuant to 28 U.S.C. 1404(a) MOTION to Change Venue to the U.S. District Court for the MOTION for Extension of Time to File Response/Reply as to 214 MOTION to Change Venue to the U.S. District Court for the Northern District of California Pursuant to 28 U.S.C. 1404(a) MOTION to Change Venue to the U.S. District Court for the MOTION for Extension of Time to File Response/Reply as to 214 MOTION to Change Venue to the U.S. District Court for the Northern District of California Pursuant to 28 U.S.C. 1404(a) MOTION to Change Venue to the U.S. District Court for the MOTION for Extension of Time to File Response/Reply as to 214 MOTION to Change Venue to the U.S. District Court for the Northern District of California Pursuant to 28 U.S.C. 1404(a) MOTION to Change Venue to the U.S. District Court for the MOTION for Extension of Time to File Response/Reply as to 214 MOTION to Change Venue to the U.S. District Court for the Northern District of California Pursuant to 28 U.S.C. 1404(a) MOTION to Change Venue to the U.S. District Court for the filed by Apple Inc.. (Cederoth, Richard)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION EOLAS TECHNOLOGIES, INC., Plaintiff, vs. ADOBE SYSTEMS, INC., ET AL., Defendants. AND RELATED COUNTERCLAIMS Civil Action No. 6:09-cv-446-LED

DEFENDANTS ADOBE SYSTEMS, INC., AMAZON.COM, INC., APPLE INC., BLOCKBUSTER INC., EBAY INC., THE GO DADDY GROUP, INC., GOOGLE INC., NEW FRONTIER MEDIA, INC., PLAYBOY ENTERPRISES INTERNATIONAL, INC., SUN MICROSYSTEMS INC., YAHOO! INC., AND YOUTUBE, LLC'S OPPOSITION-IN-PART TO EOLAS' MOTION FOR EXTENSION OF TIME TO FILE RESPONSE TO MOVING DEFENDANTS' MOTION TO TRANSFER Moving Defendants 1 are not opposed to Eolas taking, as it puts it, "limited" and "narrowly-tailored" discovery concerning factors relevant to transfer of venue on an expedited basis. See Mot. for Extension 2 at 8. But there is no need for the preliminary issue of venue transfer to be transformed into burdensome and costly side litigation that ties up this proceeding for months. Moving Defendants are entitled to have their Motion to Transfer adjudicated promptly and Eolas is not entitled to embark on an open-ended fishing expedition on such issues. See Saleh v. Titan Corp., 361 F. Supp. 2d 1152, 1170-71 (S.D. Cal. 2005) (denying request for
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"Moving Defendants" are Adobe Systems, Inc., Amazon.Com, Inc., Apple Inc., Blockbuster Inc., eBay Inc., The Go Daddy Group, Inc., Google Inc., New Frontier Media, Inc., Playboy Enterprises International, Inc., Sun Microsystems Inc., Yahoo! Inc., and YouTube, LLC. (Sun Microsystems Inc. is now known as Oracle America Inc.) 2 Docket No. 241.

venue-related discovery) ("[N]one of the cases cited by plaintiffs suggest that a plaintiff faced with a motion for transfer may embark on a fishing expedition in an attempt to find witnesses in support of its case or suggest that it is appropriate to allow discovery on an issue as trivial as whether witnesses will be inconvenienced by having to travel from the east coast to California for litigation."). Moving Defendants therefore propose that Eolas be given a firm deadline of May 21, 2010 to complete its transfer-related discovery and to file its response to the Motion to Transfer. A firm deadline of May 21, 2010 is more than reasonable, for the following reasons: 1. 2. The Motion to Transfer has been pending since February 10, 2010. 3 Eolas's Motion for Extension states that it is already "prepared to respond to the

substance" of the Motion to Transfer (Motion for Extension at 9), and the brief itself confirms that Eolas already has in its possession extensive information that it contends is pertinent to the venue issues (see id. at 3-8 & Exs. 1, 2). 3. Initial disclosures will be exchanged on April 14, 2010, 4 and thus by mid-April

Defendants will have provided Eolas with "the name, address, and telephone number of persons having knowledge of relevant facts, a brief statement of each identified person's connection with the case, and a brief, fair summary of the substance of the information known by such person," which will provide Eolas with the geographic location of the relevant party witnesses. 4. The Moving Defendants are willing to provide on an expedited basis reasonable

venue-related discovery that is, in fact, "limited" and "narrowly-tailored" to the issue of venue. Cf. Mot. for Extension at 8.

3 4

See Docket No. 214. See Joint Agreed Discovery Order (Mar. 24, 2010) (Docket No. 245). 2

5.

Eolas has retained the law firm of McKool Smith P.C. to represent it in this

litigation and eight different attorneys from that firm have made appearances on Eolas's behalf. Eolas thus has the resources to conduct any venue-related discovery on an expedited basis, without unnecessary delays. Accordingly, the Court should deny Eolas's request for a three-month extension and, instead, should provide Eolas with a firm deadline of May 21, 2010 to complete its transferrelated discovery and to respond to the Motion to Transfer.

Dated: April 5, 2010 /s/Richard A. Cederoth David T. Pritikin [e-mail] Richard A. Cederoth [e-mail] SIDLEY AUSTIN LLP One South Dearborn Chicago, Illinois 60603 Telephone: [phone] Facsimile: [phone] Theodore W. Chandler [e-mail] SIDLEY AUSTIN LLP 555 W. Fifth Street Los Angeles, California 90013 Telephone: [phone] Facsimile: [phone] Teague I. Donahey [e-mail] SIDLEY AUSTIN LLP 555 California Street San Francisco, California 94104 Telephone: [phone] Facsimile: [phone]

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Eric M. Albritton Texas State Bar No. 00790215 [e-mail] ALBRITTON LAW FIRM P.O. Box 2649 Longview, Texas 75606 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant APPLE INC. /s/David J. Healey David J. Healey Texas State Bar No. 09327980 [e-mail] FISH & RICHARDSON P.C. 1 Houston Center 1221 McKinney Street, Suite 2800 Houston, Texas 77010 Telephone: [phone] Facsimile: [phone] OF COUNSEL: Frank E. Scherkenbach [e-mail] FISH & RICHARDSON P.C. 225 Franklin Street Boston, Massachusetts 02110-2804 Telephone: [phone] Facsimile: [phone] Joseph P. Reid [e-mail] Jason W. Wolff [e-mail] FISH & RICHARDSON P.C. 12390 EI Camino Real San Diego, California 92130 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant ADOBE SYSTEMS INC.

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Douglas Lumish [e-mail] Jared Bobrow [e-mail] Joseph H. Lee [e-mail] WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, California 94065 Telephone: [phone] Facsimile: [phone] Christian J. Hurt Texas State Bar No. 24059987 [e-mail] WEIL, GOTSHAL & MANGES LLP 700 Louisiana, Suite 1600 Houston, Texas 77002 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants AMAZON.COM, INC., EBAY INC., AND YAHOO! INC. /s/David Kent Wooten David Kent Wooten Texas State Bar No. 24033477 [e-mail] VINSON & ELKINS L.L.P. 1001 Fannin Street 2500 First City Tower Houston, Texas 77002 Telephone: [phone] Facsimile: [phone] Scott Wayne Breedlove Texas State Bar No. 00790361 [e-mail] VINSON & ELKINS L.L.P. 2001 Ross Avenue 3700 Trammell Crow Center Dallas, Texas 75201-2975 Telephone: [phone] Facsimile: [phone] 5

/s/Douglas Lumish

Attorneys for Defendant BLOCKBUSTER INC. /s/Neil J. McNabnay Thomas M. Melsheimer Texas State Bar No. 13922550 [e-mail] Neil J. McNabnay Texas State Bar No. 24002583 [e-mail] J. Nicholas Bunch Texas State Bar No. 24050352 [e-mail] FISH & RICHARDSON P.C. 1717 Main Street, Suite 5000 Dallas, Texas 75201 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant THE GO DADDY GROUP, INC. /s/Scott T. Weingaertner Michael E. Jones State Bar No. 10929400 [e-mail] Allen F. Gardner State Bar No. 24043679 [e-mail] POTTER MINTON A Professional Corporation 110 N. College, Suite 500 (75702) P.O. Box 359 Tyler, Texas 75710 Telephone: [phone] Facsimile: [phone] Scott T. Weingaertner [e-mail] Robert F. Perry [e-mail] Christopher C. Carnaval [e-mail] Mark H. Francis

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[e-mail] KING & SPALDING LLP 1185 Avenue of the Americas New York, NY 10036-4003 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants GOOGLE INC. AND YOUTUBE, LLC

Michael Simons Texas State Bar No. 24008042 [e-mail] AKIN GUMP STRAUSS HAUER & FELD LLP 1111 Louisiana Street, 44th Floor Houston, Texas 77002 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant NEW FRONTIER MEDIA, INC. /s/Avelyn M. Ross David B. Weaver Texas State Bar No. 00798576 [e-mail] Avelyn M. Ross Texas State Bar No. 24027871 [e-mail] Gentry C. McLean Texas State Bar No. 24046403 [e-mail] VINSON & ELKINS L.L.P. The Terrace 7 2801 Via Fortuna, Suite 100 Austin, Texas 78746-7568 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant PLAYBOY ENTERPRISES INTERNATIONAL, 7

/s/Michael Simons

INC. /s/Eric H. Findlay Eric H. Findlay Texas State Bar No. 00789886 [e-mail] FINDLAY CRAFT, LLP 6760 Old Jacksonville Highway, Suite 101 Tyler, TX 75703 Telephone: [phone] Facsimile: [phone] Mark D. Fowler [e-mail] William G. Goldman [e-mail] DLA PIPER US LLP 2000 University Avenue East Palo Alto, CA 94303-2215 Telephone: [phone] Facsimile: [phone] Kathryn B. Riley [e-mail] DLA PIPER US LLP 401 B Street, Suite 1700 San Diego, CA 92101 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant SUN MICROSYSTEMS, INC. CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, this motion was served on all counsel who are deemed to have consented to electronic service. Local Rule CV-5(a)(3)(A). Pursuant to Fed. R. Civ. P. 5(d) and Local Rule CV-5(d) and (e), all other counsel of record not deemed to have consented to electronic service were served with a true and correct copy of the foregoing by email, on this the 5th day of April, 2010. /s/Duy D. Nguyen

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