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)

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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., 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. § § § Civil Action No. 6:09-CV-00446-LED § § § § JURY TRIAL § § § § § § § § § § § § § 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 1 McKool 395931v1 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. 2 McKool 395931v1 Respectfully submitted, 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 Holly Engelmann Texas State Bar No. 24040865 hengelmann@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. Curran Texas State Bar No. 24055979 gcurran@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. 3 McKool 395931v1 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 4 McKool 395931v1

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