Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 854

MOTION TO SET DEADLINES FOR DISCOVERY AND EXPERT REPORTS 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., Argosy Publishing, 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-00446-LED
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JURY TRIAL
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MOTION TO SET DEADLINES FOR DISCOVERY AND EXPERT REPORTS
Plaintiff Eolas Technologies Incorporated (“Eolas”) hereby respectfully requests certain
deadlines be set for the completion of discovery and exchange of expert reports as to Frito-Lay,
Inc (“Frito-Lay”) (collectively, Eolas and Frito-Lay are referred to as “the Parties”). Pursuant to
the Parties request, the Court entered a stay as to these activities on July 7, 2011 and July 25,
2011 (Dkt. Nos. 757, 789). The current stay ordered by the Court with respect to the Parties
expired at the end of the day on Friday August 5, 2011.
The Parties reached an oral agreement to settle this case on June 24, 2011. Three days
later, Eolas provided Frito-Lay with a draft settlement and license agreement. Frito-Lay did not
substantively respond or provide comments to the draft settlement and license agreement until
almost six weeks later on August 5, 2011. Frito-Lay’s comments to the draft settlement and
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license agreement raised, for the first time, a fundamental issue with the terms of the settlement.
At that point, the Parties realized that they may be unable to finalize a written settlement and
license agreement. Accordingly, Eolas respectfully requests the following stayed deadlines be
set as to Frito-Lay.
New Deadline
Requested by this Motion
August 26, 2011

Event
Complete fact discovery
Parties to Identify Trial
Witnesses
Parties with burden of proof
designate expert witnesses
Parties to Identify Rebuttal
Trial Witnesses
Parties designate rebuttal
expert witnesses

August 26, 2011
August 31, 2011
September 9, 2011
September 16, 2011

Frito-Lay opposes this motion and seeks a continuance for the trial. Frito-Lay does not
offer a counter-proposal for these deadlines requested that would allow the Parties to proceed to
trial as scheduled. Frito-Lay’s request for a continuance of the trial is directly contrary to its
prior representation to the Court in seeking the stay. Frito-Lay (and Eolas) stated that:
“The Parties agree that this Motion is not made for the
purpose of delay and does not affect the date of trial, jury
selection or the pretrial conference.”
Dkt No. 751 at 1; Dkt. No. 784 at 1. The Parties made this representation to the Court with the
full understanding that a written settlement may not be finalized. In fact, Frito-Lay should have
known over six weeks ago when Eolas sent the draft license agreement that the Parties had a
fundamental difference of opinion related to the proposed settlement terms. Consistent with the
Parties’ representation to the Court in seeking the stay, Eolas requests the above deadlines so the
Parties can proceed to trial as scheduled.

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Respectfully submitted,
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]
Holly Engelmann
Texas State Bar No. 24040865
[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. Curran
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.

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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 this August 15, 2011.

/s/ John B. Campbell
John B. Campbell

CERTIFICATE OF CONFERENCE
I hereby certify that counsel for Eolas Technologies Incorporated conferred with counsel
for Frito-Lay, Inc. on August 12, 2011, regarding the foregoing motion, who represented that
Frito-Lay, Inc. opposes this motion.
Dated: August 15, 2011
/s/ John B. Campbell
John B. Campbell

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