Rosetta Stone LTD v. Google Inc.

Filing 247

Discovery Plan by Google Inc., Rosetta Stone LTD.(Allen, Warren)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

____________________________________
ROSETTA STONE LTD.,
)
)
Plaintiff,
)
)
vs.
)
)
GOOGLE INC.,
)
)
Defendant.
)
____________________________________)

Case No. 1:09-cv-00736 (GBL/TCB)

JOINT PROPOSED DISCOVERY/PRETRIAL PLAN
Plaintiff Rosetta Stone Ltd. ("Rosetta Stone") and Defendant Google Inc. ("Google"), by
their respective counsel, respectfully submit this Joint Proposed Discovery/Pretrial Plan.
Although the following schedule is intended to be comprehensive, it is possible that other issues
may arise during the course of the matter. The parties have agreed to work cooperatively with
respect to scheduling such matters while reserving their rights to object and/or respond.
1.

Updated Discovery.
a.

On July 2, 2012, the parties exchanged letters identifying prior discovery
requests that they maintain should be updated.

b.

The parties shall meet and confer regarding the scope of discovery
updates by July 16, 2012.

c.

To the extent necessary, the parties shall exchange letters objecting to
requested discovery updates by July 20, 2012.

d.

The parties shall update prior discovery, including serving written
interrogatory responses and beginning document production, by August
17, 2012. The parties recognize that the production of documents may
be made on a rolling basis.

e.

Motions to compel discovery, if any, shall be filed using the Court's nondispositive motion briefing schedule, with motions to be filed by 5:00
p.m. on the Friday before the hearing and oppositions to be filed by 5:00
p.m. on the Wednesday before the hearing. Motions shall be noticed for
hearing during the weeks of August 20, 2012 through September 10,
2012.

f.

Fact depositions shall be taken during the weeks of August 20, 2012
through September 10, 2012. Fact depositions shall be limited to:
i. A single 30(b)(6) deposition of each party
ii. Depositions of substituted or additional witnesses (limited
to one seven-hour deposition day total if the witness is also
a 30(b)(6) witness)
iii. Two depositions per party of non-party witnesses

2.

Expert Discovery.
a. Rosetta Stone shall serve updated expert reports by August 31,
2012. Google maintains that Rosetta Stone is entitled to update
only its damages report and reserves all rights to object to any
additional reports served by Rosetta Stone.
b. Google shall serve updated rebuttal expert reports by September
28, 2012. If Rosetta Stone serves additional reports other than its
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damages report, Google reserves all rights to serve its rebuttal
expert reports to any non-damages reports served by Rosetta Stone
at a later date. For example, if Rosetta Stone serves a new expert
report concerning confusion based on a survey, Google should
have the opportunity to identify a rebuttal expert and conduct a
rebuttal survey. Due to the time it takes to field a survey and
report on results, it may not be possible to accomplish this within
four weeks.
c. Expert depositions for reports served by September 28, 2012 shall
be completed by October 8, 2012.
3.

Updated Witness Lists. The parties shall identify new witnesses and witnesses

no longer on their may/will call list by August 17, 2012. The parties recognize that final witness
lists may change prior to trial with final witness lists to be submitted with pretrial submissions as
set forth below.
4.

Motions in Limine.
a.

Google intends to file motions in limine based on the historical record to
clarify the scope of the case eligible to go to the jury; Google believes
that these rulings may later justify a motion for summary judgment on
some or all of Rosetta Stone’s claims in view of intervening legal
developments. Rosetta Stone believes that all motions in limine should
be filed at the same time shortly before trial as set forth in paragraph 4(b).
Subject to and without waiving Rosetta Stone's arguments regarding any
such motions filed by Google, the parties have agreed to the following
schedule:
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i. Motions shall be filed by August 10, 2012.
ii. Oppositions shall be filed by August 17, 2012.
iii. Replies, if any, shall be filed by August 22, 2012.
iv. Motions shall be noticed for hearing on August 31, 2012 at
10:00 a.m.
b.

The parties have agreed to the following schedule with respect to all
other motions in limine:
i. Motions shall be filed by October 26, 2012.
ii. Oppositions shall be filed by November 2, 2012.
iii. Replies, if any, shall be filed by November 6, 2012.
iv. Motions shall be noticed for hearing on November 9, 2012
at 10:00 a.m.

5.

Motions for Reconsideration/Summary Judgment.
a. Google intends to file a motion for reconsideration of its motion
for summary judgment on Rosetta Stone's dilution claim. The
parties have agreed to the following schedule with respect to such
motion:
i. Motion to be filed by October 12, 2012.
ii. Opposition to be filed by October 26, 2012.
iii. Reply to be filed by November 2, 2012.
iv. Motion to be noticed for hearing on November 9, 2012 at
10:00 a.m.
b. Google may also file a motion for summary judgment on some or
all of Rosetta Stone's other claims in view of intervening legal
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developments.

Rosetta Stone maintains that such a motion is

improper in light of the Fourth Circuit's ruling. Subject to and
without waiving Rosetta Stone's arguments regarding any such
motion filed by Google, the parties have agreed to the following
schedule:
i. Motion to be filed by October 12, 2012.
ii. Opposition to be filed by October 26, 2012.
iii. Reply to be filed by November 2, 2012.
iv. Motion to be noticed for hearing on November 9, 2012 at
10:00 a.m.
6.

Pretrial Disclosures.
a. The parties shall file updated pretrial disclosures, including Rule
26(a)(3) disclosures, exhibits lists, witness lists and a written
stipulation of uncontested facts, by October 19, 2012.
b. The parties shall file objections to updated pretrial disclosures by
October 26, 2012.

7.

Jury Instructions/Voir Dire Questions. The parties shall file updated proposed

jury instructions and voir dire questions by November 19, 2012. The parties shall meet and
confer in advance of filing jury instructions in an effort to submit a subset of agreed jury
instructions.
8.

Trial Exhibits.

Trial exhibits shall be delivered to the Clerk and opposing

counsel by November 30, 2012.
9.

Deposition Extracts/Excerpts. The parties shall submit deposition extracts and

deposition excerpts on which the parties cannot agree by November 30, 2012.
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CERTIFICATE OF SERVICE
I hereby certify that on July 13, 2012, I will electronically file the foregoing with
the Clerk of Court using the CM/ECF system, which shall send notification of such filing (NEF)
to the following:
Jonathan D. Frieden
ODIN, FELDMAN & PETTLEMAN, P.C.
9302 Lee Highway, Suite 1100
Fairfax, VA 22031
[e-mail]
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Respectfully submitted,
July 13, 2012
Date

/s/
Warren T. Allen II (Va. Bar No. 72691)
Attorney for Rosetta Stone Ltd.
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005-2111
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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