WI-LAN Inc. v. Alcatel-Lucent USA Inc. et al

Filing 277

MOTION for Leave to File Two Letter Briefs Requesting Permission to File Certain Motions by Exedea INC., HTC America, Inc., HTC Corporation. (Attachments: # 1 Text of Proposed Order)(Findlay, Eric)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
TYLER DIVISION

WI-LAN, INC.
Plaintiff,
v.
ALCATEL-LUCENT USA INC.;
TELEFONAKTIEBOLAGET LM
ERICSSON; ERICSSON INC.;
SONY MOBILE COMMUNICATIONS
AB;
SONY MOBILE COMMUNICATIONS
(USA) INS.; HTC CORPORATION;
HTC AMERICA, INC.; EXEDEA INC.;
Defendants.
______________________________________

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Civil Action No. 6:10-cv-521 -LED

JURY TRIAL REQUESTED

MOTION FOR LEAVE TO FILE TWO LETTER BRIEFS REQUESTING
PERMISSION TO FILE CERTAIN MOTIONS

NOW COME, Defendants Alcatel-Lucent USA Inc., Telefonaktiebolaget LM Ericsson,
Ericsson Inc., Sony Mobile Communications AB, Sony Mobile Communications (USA) Inc., HTC
Corporation, HTC America, Inc., and Exedea, Inc. (collectively “Defendants”) and hereby file this
Motion for Leave to File Two Letter Briefs Requesting Permission to File Certain Motions and
hereby shows the Court as follows:

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INTRODUCTION

Defendants seek leave to file a letter brief requesting permission to file a single motion for
summary judgment for consideration by the Court. In addition, Defendants seek leave to file a letter
brief requesting permission to file an as yet undetermined Daubert motion based on the previously
disclosed expert reports served by Wi-LAN and pending depositions of Wi-LAN’s experts.1
Defendants request that the date for filing a letter brief regarding a summary judgment motion be set
for December 14, 2012. Defendants also request that the date for filing a letter brief regarding a
Daubert motion be set for January 4, 2013, to permit Defendants the opportunity to complete expert
discovery and obtain relevant testimony prior to filing these motions.
DISCUSSION
When the original Docket Control Order (DCO) in this case was entered on July 6, 2011
(Dkt. No. 99) the Court’s Standing Order Regarding Letter Briefs had not yet been entered.
Accordingly the DCO did not contain the Court’s now standard procedure for the filing of letter
briefs seeking leave to file motions for summary judgment, Daubert motions and motions in limine.
Rather, it contained the then typical deadline for the filing of motions requiring a hearing, including
motions for summary judgment, and setting that deadline at November 16, 2012. (The parties, by
agreement and with leave of Court, have moved that date to December 7, 2012, Dkt. No. 216.)
On August 12, 2011, following entry of the DCO in this matter, the Court entered its
Standing Order Regarding Letter Briefs. This Order included timing deadlines for letter briefs
requesting motions for summary judgment:
Summary Judgment Motions: The opening letter brief shall be no longer than 5
pages and shall be filed with the Court no later than 60 days before the deadline for
filing summary judgment motions. Answering letter briefs shall be no longer than 5
pages and filed with the Court no later than 14 days thereafter. Reply letter briefs
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Expert discovery closes on December 21, 2012, a full two weeks after the current December 7, 2012 deadline for
Dispositive Motions.

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shall be no longer than 3 pages and filed with the Court no later than 5 days
thereafter.
Motions to Strike Expert Testimony/Daubert Motions: The opening letter brief
in each Daubert motion or motion to strike shall be no longer than 3 pages and shall
be filed with the Court no later than 60 days before the deadline for filing Motions to
Strike or Daubert Motions. Answering letter briefs shall be no longer than 3 pages
and filed with the Court no later than 14 days thereafter. Reply briefs shall be no
longer than 2 pages and filed with the Court no later than 5 days thereafter.
(This time requirement is referred to as “Standing Order Timing Deadline”)

Following this, and in acknowledgment of this new procedure, both sides in this case filed
several letter briefs relating to motions for summary judgment. (See Sealed Letter Brief filed by
Sony Ericsson on November 4, 2011 Dkt. No. 132, Sealed Letter Brief filed by Ericsson Inc. on
November 4, 2011 Dkt. No. 133 and Sealed Responses by WI-LAN, Inc. filed on November 21,
2011, Dkt. Nos. 140 and 141, respectively.) The Court, in turn, issued an Order on November 21,
2011, permitting briefing on the summary judgments motions requested. (Dkt. No. 143) It is
important to keep in mind, however, that neither those letter briefs, nor the Court’s Order (Dkt. No.
143) implicated the Standing Order Timing Deadline.
As discovery has progressed in this case the parties have—with leave of Court and as is
typical—made a number of amendments to the dates and deadlines regarding disclosure of expert
reports and the taking of expert depositions. Such amendments are set forth in the following table:
EVENT

MOVED DATES

DATE OF ORDER

Parties with burden of proof designate
8/24/2012 to 9/21/2012
expert witnesses (nonconstruction and/or
damages issues). Expert witness reports due.

Aug. 8, 2012 Order
Dkt. No. 216

same as above

9/21/2012 to 9/26/2012

Sept. 7, 2012 Order
Dkt. No. 226

same as above

9/26/2012 to 10/3/2012

same as above

10/3/2012 to 11/2/2012

Oct. 1, 2012 Order
Dkt. No. 232
Oct. 22, 2012 Order

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9/21/2012 to 10/19/2012

Dkt. No. 238
Sept. 7, 2012 Order
Dkt. No. 226

same as above

10/19/2012 to 10/24/2012

Aug. 8, 2012 Order
Dkt. No. 216

same as above

10/24/2012 to 10/31/2012

Oct. 1, 2012 Order
Dkt. No. 232

Parties designate rebuttal expert witnesses
(nonconstruction and/or damages issues),
Rebuttal expert witness reports due.

Parties with burden of proof designate
expert witnesses (non-damages issues).
Expert witness reports due (non-damages
issues).
Parties designate rebuttal expert witnesses
(nondamages issues). Rebuttal expert
witness reports due (non-damages issues).
Discovery [Expert] deadline.

9/21/2012 (no date set in Sept. 7, 2012 Order
original DCO)
Dkt. No. 226

10/19/2012 (no date set in Sept. 7, 2012 Order
original DCO)
Dkt. No. 226
10/19/2012 to 11/16/2012

Aug. 8, 2012 Order
Dkt. No. 216

same as above

11/16/2012 to 11/30/2012

Oct. 22, 2012 Order
Dkt. No. 238

same as above

11/30/2012 to 12/21/2012

Nov. 5, 2012 Order
Dkt. No. 247
Aug. 8, 2012 Order
Dkt. No. 216

Dispositive Motions due from all parties and 11/16/ 2012 to 12/7/2012
any other motions that may require a
hearing (including Daubert motions) due.
Response to Dispositive Motions (including 12/17/2012 to 1/18/2013
Daubert motions) due.

Aug. 8, 2012 Order
Dkt. No. 216

As the Court will note, none of these amendments to the DCO, agreed to by the parties and
approved by the Court, contemplated, included, or implicated, the Standing Order Timing Deadline.
Further, neither Wi-LAN nor any of the Defendants ever raised the issue of the Standing Order
Timing Deadline until to the most recent negotiations regarding the deadline to complete expert
discovery. It was only after the Defendants raised the issue of extending the current December 7,
2012 deadline for Dispositive Motions as part of that discussion, that Wi-LAN, for the first time,
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asserted that the parties had been operating under the Standing Order Timing Deadline and argued
that the deadline to file letter briefs seeking permission to file summary judgment motions had long
since passed.
Respectfully, this appears to be Wi-LAN’s attempt at litigation by “gotcha”. As the table
above shows, under the schedule agreed to by Wi-LAN it would have in several instances been
impossible to comply with the Standing Order Timing Deadline and in all other instances it would
have been extremely impractical if not impossible. For example, it would have been impossible to
file a letter brief requesting permission to file a Daubert motion pursuant to the Standing Order
Timing Deadline since rebuttal expert reports were due on October 19, 2012, less than 60 days prior
to the December 7, 2012 deadline for filing Dispositive Motions. Despite this and numerous meet
and confers, Wi-LAN refuses to compromise and continues to play its game of “gotcha”, insisting
that the Defendants have foregone the opportunity to ask this Court for leave to file any motions for
summary judgment or Daubert motions.
Defendants are mindful of the reasoning expressed in the Court’s Standing Order Regarding
Letter Briefs:
Parties now routinely file summary judgment motions on nearly every major trial
issue, regardless of whether the documentary evidence warrants summary judgment.
Filing motions that are not even arguably meritorious wastes clients’ money and the
Court’s limited resources. Accordingly, the Court strongly encourages parties to only
raise issues where there is no question of material fact or issues that raise significant
dispositive legal issues.
However, Defendants believe that the evidence warrants summary judgment and have no intention
of wasting the Court’s resources.2 Accordingly, Defendants request leave to file a single letter brief

2

The Ericsson and Sony Mobile Defendants join this motion but presently do not intend to file new summary-judgment
motions. Rather, they will seek leave on December 7th to supplement their already pending summary-judgment motions
[Docket Nos. 172, 181] to add an alternative ground for relief based on the arguments made by Wi-LAN in its
oppositions to the motions. As described in the motion for leave, despite Ericsson and Sony Mobile’s repeated efforts to
obtain discovery on the exact issue involved in the Supplement, Wi-LAN steadfastly refused to provide any discovery
relating to the issue. This continued refusal required Ericsson and Sony Mobile to file a motion on November 20th to
compel such discovery. Ideally, the Supplement would have the benefit of discovery, but given Wi-LAN’s unjustified

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seeking permission to file a motion for summary judgment seeking judgment that: (1) U.S. Patent
Nos. 6,088,326 and 6,381,211 are invalid because they are anticipated under Title 35 U.S.C. Section
102(a), (b), and/or (e), and are invalid because they were obvious at the time of filing under Title 35
U.S.C. Section 103(a).
Defendants also request leave to file a single letter brief seeking permission to file an as yet
undetermined Daubert motion based on the previously disclosed expert reports served by Wi-LAN
and pending depositions of Wi-LAN’s experts.
III. RELIEF REQUESTED
WHEREFORE, based on the above, the Defendants respectfully request leave file a letter
brief seeking permission to file a motion for summary judgment and a letter brief seeking
permission to file a Daubert motion. Defendants also respectfully request to have until December
14, 2012 to file such letter brief regarding summary judgment and until January 4, 2013 to file such
letter brief regarding a Daubert motion.

Dated: December 7, 2012

Respectfully submitted,

/s/ (with permission)
Gregory S. Arovas (pro hac vice)
Robert A. Appleby (pro hac vice)
Akshay S. Deoras (pro hac vice)
Jeanne M. Heffernan (pro hac vice)
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, NY 10022
Tel: [phone]
Fax: [phone]

By: /s/ Eric H. Findlay
Stephen S. Korniczky (pro hac vice)
Martin R. Bader (pro hac vice)
Daniel N. Yannuzzi (pro hac vice)
Lee Hsu (pro hac vice)
Graham M. Buccigross (pro hac vice)
SHEPPARD MULLIN RICHTER &
HAMPTON LLP
12275 El Camino Real, Suite 200
San Diego, CA 92130

refusal to provide the discovery, Ericsson and Sony Mobile are seeking leave to supplement the motions before the
Court rules on their pending motion to compel. Wi-LAN cannot use its unjustified refusal to provide relevant discovery
as a basis for arguing that Ericsson and Sony Mobile should have sought earlier leave to file the supplement to the
summary-judgment motions.
Because Ericsson and Sony Mobile merely seek leave to supplement motions already pending, they do not
believe that the letter-brief requirement is applicable to their motion. Nevertheless, they join this motion should the
Court conclude that providing an alternative ground for relief constitutes a separate summary-judgment motion to which
the letter-brief requirement applies.

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Tel: [phone]
Fax: [phone]
[e-mail]

[e-mail]
Local Counsel
Michael E. Jones (TX Bar No. 10929400)
Allen F. Gardner (TX Bar No. 24043679)
John F. Bufe (TX Bar No. 03316930)
POTTER MINTON PC
110 N. College, Suite 500
P.O. Box 359
Tyler, TX 75710-0359
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

Local Counsel
Eric Hugh Findlay (TX Bar No.
00789886)
Brian Craft (TX Bar No. 04972020)
FINDLAY CRAFT
6760 Old Jacksonville Hwy, Suite 101
Tyler, TX 75703
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Attorneys for Defendant Alcatel-Lucent
USA Inc.

Attorneys for Defendants HTC
Corporation, HTC America Inc., and
Exeda Inc.

/s/ (with permission)
Bruce S. Sostek (TX Bar 18855700)
Lead Attorney
Richard L. Wynne, Jr. (TX Bar 24003214)
Matthew P. Harper (TX Bar 24037777)
THOMPSON KNIGHT LLP
1722 Routh Street, Suite 1500
Dallas, TX 75201
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Local Counsel
Jennifer Ainsworth (TX Bar 00784720)
Wilson Robertson & Cornelius PC
909 ESE Loop 323, Suite 400
P.O. Box 7339
Tyler, TX 75711-7339
Tel: [phone]
Fax: [phone]
[e-mail]
Attorneys for Defendants Ericsson Inc.,
Telefonaktiebolaget LM Ericsson, Sony
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Mobile Communications (USA) Inc., and
Sony Mobile Communications AB

CERTIFICATE OF SERVICE
The undersigned certifies that on December 7, 2012, the foregoing document was filed
electronically in compliance with Local Rule CV-5(a). As such, this document was served on all
counsel who are deemed to have consented to electronic service. Local Rule CV-5(b)(1).

/s/ Eric H. Findlay
Eric H. Findlay

CERTIFICATE OF CONFERENCE
Counsel for Plaintiff and counsel for Defendants participated in a meet and confer via
numerous e-mails and telephone conferences discussing the subject of this motion. Plaintiff remains
opposed to the relief requested and the parties need the Court to resolve this dispute.

/s/ Eric H. Findlay
Eric H. Findlay

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