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)

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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. § § § § § § § § § § § § § § § § § § § § 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 2 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. 3 Dated: July 12, 2011. MCKOOL SMITH, P.C. /s/ Mike McKool Mike McKool Lead Attorney Texas State Bar No. 13732100 mmckool@mckoolsmith.com Douglas Cawley Texas State Bar No. 04035500 dcawley@mckoolsmith.com MCKOOL SMITH, P.C. 300 Crescent Court, Suite 1500 Dallas, Texas 75201 Telephone: (214) 978-4000 Telecopier: (214) 978-4044 Kevin L. Burgess Texas State Bar No. 24006927 kburgess@mckoolsmith.com John B. Campbell Texas State Bar No. 24036314 jcampbell@mckoolsmith.com Josh W. Budwin Texas State Bar No. 24050347 jbudwin@mckoolsmith.com Gretchen K. Harting Texas State Bar No. 24055979 gharting@mckoolsmith.com Matthew B. Rappaport Texas State Bar No. 24070472 mrappaport@mckoolsmith.com MCKOOL SMITH, P.C. 300 West Sixth Street, Suite 1700 Austin, Texas 78701 Telephone: (512) 692-8700 Telecopier: (512) 692-8744 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

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