Rosetta Stone LTD v. Google Inc.

Filing 49

Memorandum in Support re 48 Unopposed MOTION to Extend Discovery Cutoff filed by Rosetta Stone LTD. (Allen, Warren) Modified text on 1/26/2010 (klau, ).

Rosetta Stone LTD v. Google Inc.

Doc. 49

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION ____________________________________ ROSETTA STONE LTD., ) ) Plaint iff, ) ) vs. ) ) GOOGLE INC., ) ) Defendant. ) ____________________________________)

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

MEMORANDUM OF LAW IN SUPPORT OF THE UNOPPOSED MOTION OF ROSETTA STONE LTD. TO EXTEND DISCOVERY CUTOFF Plaint iff Rosetta Stone Ltd., by counsel, hereby moves this Court for an order continuing the discovery cutoff fro m February 12, 2010, to March 15, 2010. Rosetta Stone has coordinated with Defendant Google Inc. on this Motion and Google Inc. has advised that it does not oppose the Motion. In support of this Motion, Rosetta Stone submits the fo llowing: 1. Rosetta Stone filed this suit against Google alleging direct, contributory, and

vicarious trademark and service mark infringement, false representation, and trademark dilut ion under the Lanham Act; trademark infringement and unfair compet it ion under Virginia law; and a vio lat ion of the Virginia Code § 18.2-499. 2. On September 21, 2009, the Court denied in part and granted in part Google's

mot ion to dismiss. 3. The Court issued its init ial pretrial order on September 29, 2009, setting a Rule

16(b) Pretrial Conference for October 21, 2009.

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4.

On October 20, 2009, the Court issued a Scheduling Order approving the parties'

Joint Discovery Plan. 5. Rosetta Stone has pursued discovery wit h due diligence. The part ies exchanged

their init ial disclosures on October 26, 2009. Rosetta Stone served a First Set of Requests for Production of Documents on October 30, 2009, and a Second Set of Requests for Production of Documents on November 13, 2009. Rosetta Stone met and conferred with Google on numerous occasions. On January 8, 2010, Rosetta Stone filed a Motion to Compel Production of

Documents, which is now scheduled for hearing on February 4, 2010. Rosetta Stone also has served a First Set of Interrogatories, a Third Set of Requests for Production of Documents and a Fourth Set of Requests for Production of Documents. 6. Under the current Scheduling Order, discovery is to be commenced in t ime to be

completed by February 12, 2010. This date simply is not viable, among other reasons, because (i) Google has produced documents as late as January 15, 2010 and has indicated its intent ion to produce addit ional documents to Rosetta Stone; (ii) certain documents produced to date have had techno logical issues associated with them; and (iii) Rosetta Stone's motion to compel the production of addit ional documents remains outstanding. 7. On January 21, 2010, Rosetta Stone retained undersigned counsel to represent it

in connection with this matter. Although Rosetta Stone does not anticipate significant delays associated with its counsel transit ion, the requested extensio n will facilitate a smoother transit ion. 8. Rosetta Stone understands that the Court does not intend to continue the pre-tria l

conference, which is current ly scheduled for February 18, 2010. The requested continuance o f the discovery cut-off will not require such a cont inuance. In light of the fact that discover y would cont inue beyo nd the date of the pre-trial conference if the Motion were to be granted, however, Rosetta Stone requests that the date for the submissio n of Fed. R. Civ. P. 26(a)(3)

disclosures, a list of exhibit s to be used at trial, a list of the witnesses to be called at trial, and a written stipulat ion of uncontested facts be extended from February 18, 2010 to March 22, 2010. Rosetta Stone further requests that the exchange o f exhibits be continued from February 18, 2010 to March 22, 2010 and that the deadline for objections to exhibits be cont inued from March 4, 2010 to April 5, 2010. WHEREFORE, Rosetta Stone seeks the Court's assistance in resetting the discover y cutoff. Respect fully submitted, January 25, 2010 Date /s/ Warren T. Allen II (Va. Bar No. 72691) Attorney for Rosetta Stone Ltd. Skadden, Arps, Slate, Meagher & Flo m LLP 1440 New York Avenue, N.W. Washington, D.C. 20005-2111 Telephone: [phone] Facsimile: [phone] [e-mail] m

CERTIFICATE OF SERVICE I hereby certify that on January 25, 2010, I will electronically file the foregoing with the Clerk of Court using the CM/ECF system, which shall send notification o f such filing (NEF) to the fo llowing: Terrence P. Ross CROWELL & MORING, LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004 [e-mail] m Counsel for Plaintiff, Rosetta Stone Ltd. Jonathan D. Frieden ODIN, FELDMAN & PETTLEMAN, P.C. 9302 Lee Highway, Suite 1100 Fairfax, VA 22031 jo nathan. frieden@o fplaw.co m Counsel for Defendant, Google Inc. Respect fully submitted, January 25, 2010 Date /s/ Warren T. Allen II (Va. Bar No. 72691) Attorney for Rosetta Stone Ltd. Skadden, Arps, Slate, Meagher & Flo m LLP 1440 New York Avenue, N.W. Washington, D.C. 20005-2111 Telephone: [phone] Facsimile: [phone] [e-mail] m