Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 767

Joint MOTION to Amend/Correct 247 Order by Eolas Technologies Incorporated. (Attachments: # 1 Text of Proposed Order)(McKool, Mike)

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

Eolas Technologies Incorporated,
Plaintiff,

vs.
Adobe Systems Inc., Amazon.com, Inc.,
Apple Inc., Blockbuster Inc., CDW Corp.,
Citigroup Inc., eBay Inc., Frito-Lay, Inc.,
The Go Daddy Group, Inc., Google Inc.,
J.C. Penney Company, Inc., JPMorgan
Chase & Co., New Frontier Media, Inc.,
Office Depot, Inc., Perot Systems Corp.,
Playboy Enterprises International, Inc.,
Rent-A-Center, Inc., Staples, Inc., Sun
Microsystems Inc., Texas Instruments
Inc., Yahoo! Inc., and YouTube, LLC
Defendants.

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Civil Action No. 6:09-cv-446

JURY TRIAL

UNOPPOSED JOINT MOTION TO PROCEED WITH JOINTLY
SCHEDULED DEPOSITIONS
The discovery order limits Eolas to “[n]o more than one-hundred (100) total deposition
hours . . . of a single Defendant.” Dkt. 247 at 4(B). At present, Eolas does not anticipate
exceeding this one-hundred hour per defendant deposition limitation. However, the discovery
order also collectively limits Eolas to “350 hours” of “non-expert deposition hours taken by
Plaintiff, including Rule 30(b)(6) depositions, third-party depositions, and other individual
depositions.” Id.
Eolas has met and conferred with counsel for each of the defendants regarding the
collective 350 hour deposition limitation. While the parties are presently working together in
good faith to narrow and limit the amount of remaining discovery needed, the parties have not

yet reached any agreements on the number of extra total hours, if any, that should be provided to
Eolas for depositions. In recognition thereof, the parties have agreed that, notwithstanding the
collective 350 hour deposition limitation, Eolas should be permitted to proceed with any
depositions that Eolas and the defendants jointly agree to schedule. This includes all presently
scheduled depositions and those that the parties jointly agree to schedule. The parties agree that
the time incurred in these depositions shall nonetheless count against Eolas’ deposition time
limits whether those limits are increased by agreement or by Court order if there is no agreement.
Should the parties not agree to jointly schedule a deposition, the parties recognize that Eolas may
seek relief from the Court.
In light of this agreement, Eolas moves the Court for leave to take the depositions that
Eolas and the defendants jointly agree to schedule, notwithstanding the collective 350 hour
deposition limitation.
The parties have also met and conferred about the continued deposition of Michael
Doyle. The Discovery Order provides that “Defendants collectively may depose each of the
named inventors on the patents-in-suit . . . for up to fourteen (14) hours in their individual
capacities. Pursuant to Rule 30(b)(6), Defendants collectively may depose Plaintiff for up to fifty
(50) hours.” Dkt. 247 at 4(B)(2). Eolas (the Plaintiff) has designated the first-named inventor of
the patents-in-suit, Michael Doyle, as its 30(b)(6) witness with respect to topics 5–13 of the
30(b)(6) deposition notice served by Defendants. The parties disagree on the total number of
hours permitted by the Discovery Order for the deposition of Michael Doyle in light of his
designation as a 30(b)(6) witness, but notwithstanding this disagreement or anything to the
contrary in the Discovery Order, the parties agree that Defendants may depose Michael Doyle in
his individual capacity and/or with respect to 30(b)(6) topics 5–13 for up to 14 hours in Chicago

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at the offices of one of Defendants’ counsel on Thursday, August 11, and Friday, August 12,
2011, or at such other date and location as the parties may otherwise agree.

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Dated: July 12, 2011.

MCKOOL SMITH, P.C.
/s/ Mike McKool
Mike McKool
Lead Attorney
Texas State Bar No. 13732100
[e-mail]
Douglas Cawley
Texas State Bar No. 04035500
[e-mail]
MCKOOL SMITH, P.C.
300 Crescent Court, Suite 1500
Dallas, Texas 75201
Telephone: [phone]
Telecopier: [phone]
Kevin L. Burgess
Texas State Bar No. 24006927
[e-mail]
John B. Campbell
Texas State Bar No. 24036314
[e-mail]
Josh W. Budwin
Texas State Bar No. 24050347
[e-mail]
Gretchen K. Harting
Texas State Bar No. 24055979
[e-mail]
Matthew B. Rappaport
Texas State Bar No. 24070472
[e-mail]
MCKOOL SMITH, P.C.
300 West Sixth Street, Suite 1700
Austin, Texas 78701
Telephone: [phone]
Telecopier: [phone]
ATTORNEYS FOR PLAINTIFF
EOLAS TECHNOLOGIES, INC.

CERTIFICATE OF CONFERENCE
Counsel for Eolas has conferred with counsel for Defendants regarding the relief
requested in this Motion. Counsel for Defendants indicate that they do not oppose the relief
requested herein.

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a). As such, this document was served on all counsel who
have consented to electronic service. Local Rule CV-5(a)(3)(A) on July 12, 2011.

/s/ Josh Budwin
Josh Budwin