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

Filing 289

REPLY to Response to Motion re 277 MOTION for Leave to File Two Letter Briefs Requesting Permission to File Certain Motions filed by Alcatel-Lucent USA Inc., Ericsson Inc., Exedea INC., HTC America, Inc., HTC Corporation, Sony Mobile Communications (USA) Inc., Sony Mobile Communications AB, Telefonaktiebolaget LM Ericsson. (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

DEFENDANTS’ REPLY IN SUPPORT OF THEIR 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 Reply in support of their Motion for Leave to File Two Letter Briefs Requesting
Permission to File Certain Motions and hereby shows the Court as follows:

1

Plaintiff’s Opposition Brief bears out what Defendants pointed out in its Motion for
Leave – this dispute is at its heart an attempt by Plaintiff to litigate by “gotcha,” rather than
trying to work out a reasonable compromise on a legitimate scheduling issue.
First, Plaintiff presumes, and implies that Defendants agree, that the 60-day deadline for
filing motions for summary judgment and Daubert motions contained in the Court’s “Standing
Order Regarding Letter Briefs” of August 12, 2011 automatically applies to this case and that
Defendants knowingly ignored that deadline. Dkt. No. 285 at 2. This is not true. Rather, that is
the crux of Defendants’ motion and what Defendants tried to work out with Plaintiff in order to
avoid motion practice. In short, for the first time in this case, Plaintiff is now attempting to
suggest that the 60-day deadline in the Court’s general Standing Order, issued after the Docket
Control Order was entered, has always been understood by the parties to apply to this case,
despite the impracticality of the same when looking at the parties’ agreed and often modified
schedules.
Second, contrary to Plaintiff’s Opposition, Plaintiff has failed to explain or establish any
possible prejudice should the Court grant Defendants’ Motion for Leave. Defendants sought
leave to file, and have filed, not an undisciplined flood of letter briefs requesting motion practice
on a multitude of issues, but only two: 1) a single motion for summary judgment; and 2) a single
Daubert motion regarding only one of Plaintiff’s experts. Plaintiff would not be prejudiced by
Defendants’ requested extensions. Telling is the language Plaintiff chose in its Opposition Brief:
Now, Defendants seek to force Wi-LAN to respond to letter briefs (and
potentially summary briefs) in the months immediately before trial and as other
pre-trial deadlines approach. This unnecessary expenditure of resources will
necessarily distract from Wi-LAN’s trial preparations during the critical months
before the April 8, 2012 trial setting (emphasis added). Dkt. No. 285 at 10.

2

To the complete contrary, Plaintiff has ample time and resources, including a combined total of
eleven local and national counsel of record, to adequately respond to Defendants’ potential
ensuing motion for summary judgment and Daubert motion. Indeed, Plaintiff strategically chose
to force Defendants into the instant motion practice rather than simply work out a reasonable
timeline, with leave of Court, to allow the filing of these two letter briefs, as well as any possible
ones that Plaintiff sought to file.1
Defendants’ Motion is not the typical request for leave to extend a deadline. It rather errs
on seeking the Court’s leave to file letter briefs since the parties’ could not agree on the
procedure for the same and given Plaintiff’s late professed, disenginuous position that the 60-day
deadline applied. However, even under the standard criteria for seeking such an extension, one
is warranted here. As set forth in the Defendants’ Motion (Dkt. No. 277), the Court’s Standing
Order had not been issued at the the outset of this case.2 This fact, along with the various other
adjustments of dates by the Court subsequent to the “working together” by the parties,3
illuminates clearly that the parties never designed nor envisioned that the 60-day timing
deadlines of the Standing Order would in any way be applicable to the schedule of this case.
Indeed, Defendants’ letter brief regarding its motion for summary judgment of invalidity could
not have been filed within the 60-day deadline, as it did not become clear until Wi-LAN served
its rebuttal expert report that no disputed issues of fact existed between the parties. (See Dkt. No.
280 Ex. A. at 3.) Common sense and fairness thus conclude that the 60-day deadlines do not
apply here. Moreover, despite the intimations of Plaintiff (Dkt. No. 285 at 2), this conclusion
1

Of note is that Plaintiff did not initiate any letter briefing of its own in this case, but merely defensively responded
to Defendants’ briefing. Apparently, this bespeaks of the timing of Plaintif discarding its willingness to continue to
work through scheduling issues with Defendants. Plaintiff’s resistance strategy arises late in this case and
demonstrates that it too was not earlier acting under any 60-day deadline.
2
This case was originally filed on October 5, 2010, and the original DCO was issued on July 6, 2011. Afterwards,
the Court issued its “Standard Order Regarding Letter Briefs” on August 12, 2011.
3
Dkt. No. 277 at 3-4. Plaintiff also acknowledges the specific extensions in the letter briefing of this case. Dkt. No.
285 at 3.

3

does not contradict the Court’s Order of November 21, 2011 (Dkt. No. 143), whereby leave was
granted to both Plaintiff and Defendants to file summary judgment motions, as neither the
parties’ previous letter briefs, or the Court’s Order implicated the Standing Order timing
deadlines. (Dkt. No. 277 at 3.)
In the light of Defendants Motion for Leave and Reply in support thereof, Defendants
respectfully request leave to file a letter brief seeking permission to file a motion for summary
judgment and a letter brief seeking permission to file a Daubert motion.

Dated: January 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]
[e-mail]

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
Tel: [phone]
Fax: [phone]
[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]

4

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

Attorneys for Defendant Alcatel-Lucent
USA 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
Mobile Communications (USA) Inc., and
Sony Mobile Communications AB

5

CERTIFICATE OF SERVICE
The undersigned certifies that on January 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

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