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New Pacer--PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF MOTION TO CONTINUE DISCOVERY AND TRIAL DATE
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
Technology Properties Limited and Patriot
Scientific Corporation,
Plaintiffs,
v.
Matsushita Electric Industrial Co., Ltd.,
Panasonic Corporation of North America, JVC
Americas Corporation, NEC Electronics
America, Inc., Toshiba Corporation, Toshiba
America, Inc., Toshiba America Electronic
Components, Inc., Toshiba America
Information Systems, Inc. and Toshiba America
Consumer Products, LLC,
Defendants.
JURY DEMANDED
PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF MOTION TO CONTINUE
DISCOVERY AND TRIAL DATE
REPLY IN SUPPORT OF MOTION TO CONTINUE DISCOVERY AND TRIAL
I. INTRODUCTION
Defendants Toshiba, NEC and MEI do not oppose Plaintiffs' request for a 60-day continuance of discovery and trial; however, Toshiba opposes to the extent that the Court's calendar may require a continued trial date to be set more than 60 days beyond the existing trial date. In so opposing, Toshiba does not deny that more discovery remains to be done, but argues that Toshiba bears no responsibility for this fact, and also that any continuance beyond January, 2008 would be unduly prejudicial to Toshiba. Toshiba is wrong on both counts. Plaintiffs have diligently sought to obtain discovery from Toshiba and the other defendants. The continuance has been necessitated in no small part by Toshiba's late and still continuing production of key documents required under the Court’s Discovery and Scheduling Orders. Toshiba should not benefit – and Plaintiffs should not be unduly prejudiced – by Toshiba’s belated discovery compliance which, unless a continuance is granted, will preclude full and fair resolution of this dispute on the merits. Moreover, Toshiba's claim of prejudice resulting from any continuance beyond January2 Defendant ARM opposes Plaintiffs’ motion on substantially the same grounds; however, in view of Plaintiffs' stipulation as to non-infringement by ARM, ARM's opposition to the motion is now moot. ARM's involvement in this case is solely limited to defending those of MEI, NEC and Toshiba Defendants' products accused of infringing the '584 Patent by virtue of the fact that they contain ARM microprocessor cores. However, given the Court's claim construction of the term "instruction group," Plaintiffs have stipulated that the subject products do not infringe the '584, and have sent ARM a proposed stipulated entry of judgment in favor of ARM under Fed. R. Civ. P. 54(b). This proposed stipulated order has not been finalized for submission to the Court, however, because of disagreement as to whether the stipulation should cover ARM's recently developed Coretex cores, which Plaintiff had never studied and never accused of infringement. Nonetheless, to minimize unnecessary disputes, Plaintiffs have undertaken to evaluate the ARM Coretex cores, and can now, and hereby do, stipulate that the ARM Coretex cores do not infringe the '584 Patent, for the same reason as the previously accused cores. Accordingly, there is no longer any case or controversy between Plaintiffs and ARM. 2 Contrary to Toshiba's assertions, Plaintiffs have not asked for an "indefinite" or "open-ended" continuance. Rather, Plaintiffs seek only a two month continuance in order to complete discovery in a fair manner is, at best, greatly exaggerated. Indeed, Toshiba has presented no evidence of actual or likely prejudice in relation to either its customers or in its sales because of this lawsuit. Accordingly, Plaintiffs’ motion should be granted.
II. ARGUMENT
A. Good Cause Exists for a Continuance The mere fact that no Defendant opposes a two month continuance -- which is all that Plaintiffs have requested -- demonstrates that good cause for this motion exists. Plainly, all parties, including Toshiba, understand that additional discovery remains to be done and that more time is needed for its completion. Moreover, Toshiba does not dispute the facts recited by Plaintiffs in their opening brief that Toshiba produced chip-related technical documents right up to, during and even after the recent 30(b)(6) depositions taken on accused chips; and that Toshiba is continuing, to this day, to produce key technical documents. Instead, Toshiba attempts to minimize the importance of these documents by suggesting that they were not used much in the recent depositions; and, further, attempts to assign all blame for these delays on Plaintiffs. Neither of these arguments has merit, as more fully described below. Toshiba Is Still Producing Significant Technical and Non-Technical Documents on an Almost Daily Basis Disregarding the fact that pursuant to this Court’s Discovery Order, it had an affirmative obligation to produce relevant documents by no later than October 2006, Toshiba attempts to minimize the importance of its belated and continuing production of documents. Indeed since Plaintiffs filed this motion, Toshiba has continued to produce thousands more pages of documents – both technical and damages-related – on July 23, 24, 25, 31 and August 1, 2 and 3, and has given no indication that it has completed its production. Reply declaration of Eric Jacobs ("Jacobs Reply Decl."), filed herewith, 2-10, Exs. 29-37. Toshiba argues that its late production of technical documents in June and July has had no impact on the Plaintiffs’ ability to take discovery and points to the fact that Plaintiffs took the depositions of the Toshiba chip witnesses without using any documents from these late productions as evidence that these documents were unnecessary. This is untrue. The documents used at the 30(b)(6) chip depositions were not limited to the documents produced by Toshiba last fall. Plaintiffs used documents from Toshiba’s June and early July productions in the depositions of Toshiba's witnesses and would have used more documents from these productions if they had had sufficient time to translate, review and analyze them prior to the depositions. See Jacobs Reply Decl., 11. With Toshiba pushing to have the chip depositions in early July,3 however, and the close of discovery fast approaching, Plaintiffs were forced to go forward with the depositions without having the benefit of these documents that were turned over in untranslated form shortly before the depositions or were electronic files that were produced
simultaneously, or nearly so, with the occurrence of the depositions. Indeed, Plaintiffs are still in the process of reviewing these documents now. Moreover, Plaintiffs also have to review and analyze the additional documents that Toshiba has produced since the 30(b)(6) chip depositions. Toshiba’s late production has in fact prejudiced Plaintiffs and led to the need for additional time. Toshiba insisted that the chip depositions go forth in early July and even made representations to Plaintiffs that its witnesses would be able to provide the needed testimony without reference to any documents. In fact, the witnesses relied heavily on documents during the depositions. See Jacobs Decl. (filed with Plaintiffs' opening brief), 30. Toshiba also attempts to excuse its late productions by arguing, incorrectly, that the documents being produced were related only to chips that were not in Plaintiffs’ preliminary infringement contentions or contained end-user product system (rather than chip-related) information. In fact, as late as June and July, Toshiba was still producing information relating to chips originally accused by Plaintiffs. See Jacobs Reply Decl., 11. Moreover, Toshiba's production was late, even as to those chips that were part of Plaintiffs’ amended infringement contentions. After all, Toshiba was aware of those chips no later than December 2006, and certainly should have been prepared to produce information relevant to those chips shortly after April 17, 2007 when Toshiba and TPL entered into the representative chip stipulation. Finally, contrary to its assertion, Toshiba was not producing just system level documentation for new systems implicated by the Court’s June 2007 decision to grant Plaintiffs’ motion to amend their
infringement contentions against the MEI Defendants. Rather, during June and July, Toshiba Continued on the next page Plaintiffs’ Discovery Efforts Have Been Timely And Expeditious Plaintiffs began seeking key technical documents in June 2006 – promptly after issuance of the Discovery Order – and again in October 2006. See Jacobs Decl., 2-5 and Exs. 2-4.5 Among other things, Plaintiffs specifically asked for electronic design files necessary to conduct their infringement analysis with regard to the accused chips. See Arvanitis Decl., 3-16 and Jacobs Decl., 2-5 and Exs. 2-4. In late fall of 2006, Toshiba produced what it decided were the relevant technical documents, but failed to produce, inter alia, the electronic design documents which contain the level of detail which Plaintiffs had indicated they needed to conduct their infringement analysis. See Jacobs Decl., 14 and Ex.12. Simultaneously, during the fall of 2006, Plaintiffs negotiated with Toshiba regarding the production of the electronic design files. At no time during the negotiations did Toshiba state that it would not produce the electronic design files sought by Plaintiff. Instead the negotiations centered around where and how Toshiba would allow these documents to be accessed by the Plaintiffs – not issues to be brought to the Court. These negotiations lasted until late April 2007 when Toshiba finally agreed to provide these files to Plaintiffs without its earlier restrictions that would render them useless or its earlier requirements that Plaintiffs travel to other locations to review these documents at specific workstations.6 See Jacobs Decl., 6-17 and Exs. 5-15. Continued from the previous page produced and continues to produce system level documentation and source code for end-user products containing Toshiba’s own chips. See Jacobs Reply Decl., 11. In their October 27, 2006, letter to Defendants, Plaintiffs also sought relevant damages-related documents. See Jacobs Decl., Ex. and continued to ask for additional damages-related documents in subsequent meet and confer letters. Toshiba now attempts to blame Plaintiffs for the delay resulting from Toshiba’s months-long refusal to provide electronic design documents, such as GDS and netlists, in native format to Plaintiffs’ counsel without onerous restrictions. Between October 2006 and May 2007, however, Toshiba insisted on restrictions on the use of the native format documents that would have Continued on the next page However, Toshiba did not produce any electronic design files immediately.
As set forth in the Declaration of Eric Jacobs accompanying Plaintiffs’ opening brief, Plaintiffs have been diligent in pursuing the documents they are seeking from Defendants, but have been hampered because the documents were slow to be produced and once produced, a number of them required translation into English before they could be analyzed. While Toshiba now argues that Plaintiffs were not diligent because they failed to file a motion to compel against Toshiba, the fact that no motion to compel has been filed is irrelevant to whether Plaintiffs have been diligent. As the record shows, Toshiba never refused to produce documents, but simply was slow to do so. Moreover, after each time that Plaintiffs threatened a motion, Toshiba began producing the requested technical documents in earnest. Plaintiffs would have been hard pressed to go to the Court with a motion when Toshiba was continuing its production. Toshiba Disregards the Discovery That Still Remains to be Conducted Despite some, but far from complete progress with Toshiba, much discovery still remains Continued from the previous page rendered them useless. Only when it became clear to Toshiba that other Defendants had agreed to produce their native format electronic design files to Plaintiffs with far less restrictions did Toshiba finally agree to provide these documents on similar terms. See Jacobs Decl., 17. ARM’s claims of discovery mischief by Plaintiffs are equally misplaced. Once notified of the volume of documents involved, Plaintiffs agreed with ARM that the production of millions of pages of documents was unnecessarily burdensome to both sides. Ironically, ARM complains that Plaintiffs failed to immediately agree to ARM’s offer of witnesses for deposition – extended only one day before this Court issued its claim construction ruling, with the result that ARM was able to avoid this discovery altogether and instead was offered to be removed from the case with a stipulation of non-infringement, based on the Court’s claim construction ruling. Lastly, ARM’s recitation of its discovery efforts fails to disclose that ARM itself produced documents relating to its Cortex core even though Plaintiffs, one month earlier had explicitly agreed in writing to limit discovery to the only two ARM cores still accused in the case – ARM7TDMi and ARM926EJ-S. Toshiba also argues that Plaintiffs were not diligent in amending their infringement contentions. This is not true, as evidenced by the fact that this Court granted Plaintiffs leave to file their First Amended Infringement Contentions, over the objection of MEI. In fact, Toshiba, engaged in months of negotiations over Plaintiffs’ First Amended PICs, before finally agreeing to be done. Plaintiffs must still take the depositions of NECEL 30(b)(6) witnesses on chips and both Toshiba and MEI’s 30(b)(6) witnesses on end-user products. The NECEL depositions are currently scheduled during the week of August 20, 2007. The Toshiba end-user product depositions are currently scheduled for the week of August 6 and the week of August 20, 2007, although it is not certain that they will be completed on the specified dates. Moreover, it appears that Toshiba has not provided complete system level schematics that provide the sufficient level of information needed to conduct these depositions in a meaningful manner. See Jacobs Reply Decl., 12 and Ex. 38. The MEI end-user depositions are not yet scheduled. Defendants are
also taking depositions of third party witnesses throughout August and damages-related depositions must still be scheduled.9 It is virtually impossible to schedule all of the depositions that still remain in August. As it stands, there is double and sometimes triple tracking of depositions taking place during this month. Moreover, even if all of these depositions are
completed in August, the experts will not have a reasonable amount of time to digest the discovery obtained in order to provide their expert opinions. Consequently, a continuance is necessary. Toshiba Demonstrates No Prejudice It Will Suffer as a Result of a Limited Continuance Toshiba argues that “[w]hile Toshiba can manage a sixty day extension, any further months of uncertainty will risk a continuation of the undue harm this case has caused Toshiba in Continued from the previous page to them. Toshiba has offered a date for its 30(b)(6) witness testifying about chip-related damages, but has not offered anyone to testify regarding the sales of Toshiba’s end-user products. NECEL has offered up a witness on three damages-related topics for the middle of August and another witness on licensing issues during the week of August 27, 2007. Plaintiffs are in the process of determining whether documents needed for these depositions have been produced. The marketplace.” See Opp. at 15. Pointing to a letter sent by TPL to Wal-Mart, Toshiba claims that it will be prejudiced in the marketplace if trial occurs later than January 2008. Yet Toshiba offers no evidence of any harm it has suffered as a result of TPL legitimately conducting its licensing program. For example, there is no evidence of reduced sales, let alone evidence that Wal-Mart or any other customer has stopped or threatened to stop purchasing product from Toshiba. Presumably, if such evidence existed, Toshiba would have presented it. Accordingly, since Toshiba has not offered any such evidence, it apparently does not exist. As a result, Toshiba's claim of prejudice resulting from alleged harm in the marketplace must be disregarded. Toshiba has no other cognizable basis asserting prejudice. The fact that Toshiba employees have been engaged in discovery compliance does not demonstrate prejudice of the type that would justify denial of a continuance beyond two months. Discovery compliance is a necessary burden shared by all parties in litigation. There is no evidence of discovery abuse or any other evidence of discovery burden which would justify denying the present motion. Moreover, the fact that Toshiba is willing to agree to a two month continuance undercuts their suggestion that an additional month or so continuance, if required, will cause them undue
prejudice.
III. CONCLUSION
For the reasons set forth in Plaintiffs' motion and the foregoing reasons, the Court should grant Plaintiffs’ request for a two month extension. To the extent that the Court’s calendar cannot accommodate a January trial date, Plaintiffs request a trial date as soon thereafter as is possible.
DATED: By: Roger L. Cook
TOWNSEND and TOWNSEND and CREW LLP
Roger L. Cook, CA State Bar No. 55208
Lead Counsel
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
Technology Properties Limited and Patriot
Scientific Corporation,
Plaintiffs,
v.
Matsushita Electric Industrial Co., Ltd.,
Panasonic Corporation of North America, JVC
Americas Corporation, NEC Electronics
America, Inc., Toshiba Corporation, Toshiba
America, Inc., Toshiba America Electronic
Components, Inc., Toshiba America
Information Systems, Inc. and Toshiba America
Consumer Products, LLC,
Defendants.
JURY DEMANDED
PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF MOTION TO CONTINUE
DISCOVERY AND TRIAL DATE
REPLY IN SUPPORT OF MOTION TO CONTINUE DISCOVERY AND TRIAL
I. INTRODUCTION
Defendants Toshiba, NEC and MEI do not oppose Plaintiffs' request for a 60-day continuance of discovery and trial; however, Toshiba opposes to the extent that the Court's calendar may require a continued trial date to be set more than 60 days beyond the existing trial date. In so opposing, Toshiba does not deny that more discovery remains to be done, but argues that Toshiba bears no responsibility for this fact, and also that any continuance beyond January, 2008 would be unduly prejudicial to Toshiba. Toshiba is wrong on both counts. Plaintiffs have diligently sought to obtain discovery from Toshiba and the other defendants. The continuance has been necessitated in no small part by Toshiba's late and still continuing production of key documents required under the Court’s Discovery and Scheduling Orders. Toshiba should not benefit – and Plaintiffs should not be unduly prejudiced – by Toshiba’s belated discovery compliance which, unless a continuance is granted, will preclude full and fair resolution of this dispute on the merits. Moreover, Toshiba's claim of prejudice resulting from any continuance beyond January2 Defendant ARM opposes Plaintiffs’ motion on substantially the same grounds; however, in view of Plaintiffs' stipulation as to non-infringement by ARM, ARM's opposition to the motion is now moot. ARM's involvement in this case is solely limited to defending those of MEI, NEC and Toshiba Defendants' products accused of infringing the '584 Patent by virtue of the fact that they contain ARM microprocessor cores. However, given the Court's claim construction of the term "instruction group," Plaintiffs have stipulated that the subject products do not infringe the '584, and have sent ARM a proposed stipulated entry of judgment in favor of ARM under Fed. R. Civ. P. 54(b). This proposed stipulated order has not been finalized for submission to the Court, however, because of disagreement as to whether the stipulation should cover ARM's recently developed Coretex cores, which Plaintiff had never studied and never accused of infringement. Nonetheless, to minimize unnecessary disputes, Plaintiffs have undertaken to evaluate the ARM Coretex cores, and can now, and hereby do, stipulate that the ARM Coretex cores do not infringe the '584 Patent, for the same reason as the previously accused cores. Accordingly, there is no longer any case or controversy between Plaintiffs and ARM. 2 Contrary to Toshiba's assertions, Plaintiffs have not asked for an "indefinite" or "open-ended" continuance. Rather, Plaintiffs seek only a two month continuance in order to complete discovery in a fair manner is, at best, greatly exaggerated. Indeed, Toshiba has presented no evidence of actual or likely prejudice in relation to either its customers or in its sales because of this lawsuit. Accordingly, Plaintiffs’ motion should be granted.
II. ARGUMENT
A. Good Cause Exists for a Continuance The mere fact that no Defendant opposes a two month continuance -- which is all that Plaintiffs have requested -- demonstrates that good cause for this motion exists. Plainly, all parties, including Toshiba, understand that additional discovery remains to be done and that more time is needed for its completion. Moreover, Toshiba does not dispute the facts recited by Plaintiffs in their opening brief that Toshiba produced chip-related technical documents right up to, during and even after the recent 30(b)(6) depositions taken on accused chips; and that Toshiba is continuing, to this day, to produce key technical documents. Instead, Toshiba attempts to minimize the importance of these documents by suggesting that they were not used much in the recent depositions; and, further, attempts to assign all blame for these delays on Plaintiffs. Neither of these arguments has merit, as more fully described below. Toshiba Is Still Producing Significant Technical and Non-Technical Documents on an Almost Daily Basis Disregarding the fact that pursuant to this Court’s Discovery Order, it had an affirmative obligation to produce relevant documents by no later than October 2006, Toshiba attempts to minimize the importance of its belated and continuing production of documents. Indeed since Plaintiffs filed this motion, Toshiba has continued to produce thousands more pages of documents – both technical and damages-related – on July 23, 24, 25, 31 and August 1, 2 and 3, and has given no indication that it has completed its production. Reply declaration of Eric Jacobs ("Jacobs Reply Decl."), filed herewith, 2-10, Exs. 29-37. Toshiba argues that its late production of technical documents in June and July has had no impact on the Plaintiffs’ ability to take discovery and points to the fact that Plaintiffs took the depositions of the Toshiba chip witnesses without using any documents from these late productions as evidence that these documents were unnecessary. This is untrue. The documents used at the 30(b)(6) chip depositions were not limited to the documents produced by Toshiba last fall. Plaintiffs used documents from Toshiba’s June and early July productions in the depositions of Toshiba's witnesses and would have used more documents from these productions if they had had sufficient time to translate, review and analyze them prior to the depositions. See Jacobs Reply Decl., 11. With Toshiba pushing to have the chip depositions in early July,3 however, and the close of discovery fast approaching, Plaintiffs were forced to go forward with the depositions without having the benefit of these documents that were turned over in untranslated form shortly before the depositions or were electronic files that were produced
simultaneously, or nearly so, with the occurrence of the depositions. Indeed, Plaintiffs are still in the process of reviewing these documents now. Moreover, Plaintiffs also have to review and analyze the additional documents that Toshiba has produced since the 30(b)(6) chip depositions. Toshiba’s late production has in fact prejudiced Plaintiffs and led to the need for additional time. Toshiba insisted that the chip depositions go forth in early July and even made representations to Plaintiffs that its witnesses would be able to provide the needed testimony without reference to any documents. In fact, the witnesses relied heavily on documents during the depositions. See Jacobs Decl. (filed with Plaintiffs' opening brief), 30. Toshiba also attempts to excuse its late productions by arguing, incorrectly, that the documents being produced were related only to chips that were not in Plaintiffs’ preliminary infringement contentions or contained end-user product system (rather than chip-related) information. In fact, as late as June and July, Toshiba was still producing information relating to chips originally accused by Plaintiffs. See Jacobs Reply Decl., 11. Moreover, Toshiba's production was late, even as to those chips that were part of Plaintiffs’ amended infringement contentions. After all, Toshiba was aware of those chips no later than December 2006, and certainly should have been prepared to produce information relevant to those chips shortly after April 17, 2007 when Toshiba and TPL entered into the representative chip stipulation. Finally, contrary to its assertion, Toshiba was not producing just system level documentation for new systems implicated by the Court’s June 2007 decision to grant Plaintiffs’ motion to amend their
infringement contentions against the MEI Defendants. Rather, during June and July, Toshiba Continued on the next page Plaintiffs’ Discovery Efforts Have Been Timely And Expeditious Plaintiffs began seeking key technical documents in June 2006 – promptly after issuance of the Discovery Order – and again in October 2006. See Jacobs Decl., 2-5 and Exs. 2-4.5 Among other things, Plaintiffs specifically asked for electronic design files necessary to conduct their infringement analysis with regard to the accused chips. See Arvanitis Decl., 3-16 and Jacobs Decl., 2-5 and Exs. 2-4. In late fall of 2006, Toshiba produced what it decided were the relevant technical documents, but failed to produce, inter alia, the electronic design documents which contain the level of detail which Plaintiffs had indicated they needed to conduct their infringement analysis. See Jacobs Decl., 14 and Ex.12. Simultaneously, during the fall of 2006, Plaintiffs negotiated with Toshiba regarding the production of the electronic design files. At no time during the negotiations did Toshiba state that it would not produce the electronic design files sought by Plaintiff. Instead the negotiations centered around where and how Toshiba would allow these documents to be accessed by the Plaintiffs – not issues to be brought to the Court. These negotiations lasted until late April 2007 when Toshiba finally agreed to provide these files to Plaintiffs without its earlier restrictions that would render them useless or its earlier requirements that Plaintiffs travel to other locations to review these documents at specific workstations.6 See Jacobs Decl., 6-17 and Exs. 5-15. Continued from the previous page produced and continues to produce system level documentation and source code for end-user products containing Toshiba’s own chips. See Jacobs Reply Decl., 11. In their October 27, 2006, letter to Defendants, Plaintiffs also sought relevant damages-related documents. See Jacobs Decl., Ex. and continued to ask for additional damages-related documents in subsequent meet and confer letters. Toshiba now attempts to blame Plaintiffs for the delay resulting from Toshiba’s months-long refusal to provide electronic design documents, such as GDS and netlists, in native format to Plaintiffs’ counsel without onerous restrictions. Between October 2006 and May 2007, however, Toshiba insisted on restrictions on the use of the native format documents that would have Continued on the next page However, Toshiba did not produce any electronic design files immediately.
As set forth in the Declaration of Eric Jacobs accompanying Plaintiffs’ opening brief, Plaintiffs have been diligent in pursuing the documents they are seeking from Defendants, but have been hampered because the documents were slow to be produced and once produced, a number of them required translation into English before they could be analyzed. While Toshiba now argues that Plaintiffs were not diligent because they failed to file a motion to compel against Toshiba, the fact that no motion to compel has been filed is irrelevant to whether Plaintiffs have been diligent. As the record shows, Toshiba never refused to produce documents, but simply was slow to do so. Moreover, after each time that Plaintiffs threatened a motion, Toshiba began producing the requested technical documents in earnest. Plaintiffs would have been hard pressed to go to the Court with a motion when Toshiba was continuing its production. Toshiba Disregards the Discovery That Still Remains to be Conducted Despite some, but far from complete progress with Toshiba, much discovery still remains Continued from the previous page rendered them useless. Only when it became clear to Toshiba that other Defendants had agreed to produce their native format electronic design files to Plaintiffs with far less restrictions did Toshiba finally agree to provide these documents on similar terms. See Jacobs Decl., 17. ARM’s claims of discovery mischief by Plaintiffs are equally misplaced. Once notified of the volume of documents involved, Plaintiffs agreed with ARM that the production of millions of pages of documents was unnecessarily burdensome to both sides. Ironically, ARM complains that Plaintiffs failed to immediately agree to ARM’s offer of witnesses for deposition – extended only one day before this Court issued its claim construction ruling, with the result that ARM was able to avoid this discovery altogether and instead was offered to be removed from the case with a stipulation of non-infringement, based on the Court’s claim construction ruling. Lastly, ARM’s recitation of its discovery efforts fails to disclose that ARM itself produced documents relating to its Cortex core even though Plaintiffs, one month earlier had explicitly agreed in writing to limit discovery to the only two ARM cores still accused in the case – ARM7TDMi and ARM926EJ-S. Toshiba also argues that Plaintiffs were not diligent in amending their infringement contentions. This is not true, as evidenced by the fact that this Court granted Plaintiffs leave to file their First Amended Infringement Contentions, over the objection of MEI. In fact, Toshiba, engaged in months of negotiations over Plaintiffs’ First Amended PICs, before finally agreeing to be done. Plaintiffs must still take the depositions of NECEL 30(b)(6) witnesses on chips and both Toshiba and MEI’s 30(b)(6) witnesses on end-user products. The NECEL depositions are currently scheduled during the week of August 20, 2007. The Toshiba end-user product depositions are currently scheduled for the week of August 6 and the week of August 20, 2007, although it is not certain that they will be completed on the specified dates. Moreover, it appears that Toshiba has not provided complete system level schematics that provide the sufficient level of information needed to conduct these depositions in a meaningful manner. See Jacobs Reply Decl., 12 and Ex. 38. The MEI end-user depositions are not yet scheduled. Defendants are
also taking depositions of third party witnesses throughout August and damages-related depositions must still be scheduled.9 It is virtually impossible to schedule all of the depositions that still remain in August. As it stands, there is double and sometimes triple tracking of depositions taking place during this month. Moreover, even if all of these depositions are
completed in August, the experts will not have a reasonable amount of time to digest the discovery obtained in order to provide their expert opinions. Consequently, a continuance is necessary. Toshiba Demonstrates No Prejudice It Will Suffer as a Result of a Limited Continuance Toshiba argues that “[w]hile Toshiba can manage a sixty day extension, any further months of uncertainty will risk a continuation of the undue harm this case has caused Toshiba in Continued from the previous page to them. Toshiba has offered a date for its 30(b)(6) witness testifying about chip-related damages, but has not offered anyone to testify regarding the sales of Toshiba’s end-user products. NECEL has offered up a witness on three damages-related topics for the middle of August and another witness on licensing issues during the week of August 27, 2007. Plaintiffs are in the process of determining whether documents needed for these depositions have been produced. The marketplace.” See Opp. at 15. Pointing to a letter sent by TPL to Wal-Mart, Toshiba claims that it will be prejudiced in the marketplace if trial occurs later than January 2008. Yet Toshiba offers no evidence of any harm it has suffered as a result of TPL legitimately conducting its licensing program. For example, there is no evidence of reduced sales, let alone evidence that Wal-Mart or any other customer has stopped or threatened to stop purchasing product from Toshiba. Presumably, if such evidence existed, Toshiba would have presented it. Accordingly, since Toshiba has not offered any such evidence, it apparently does not exist. As a result, Toshiba's claim of prejudice resulting from alleged harm in the marketplace must be disregarded. Toshiba has no other cognizable basis asserting prejudice. The fact that Toshiba employees have been engaged in discovery compliance does not demonstrate prejudice of the type that would justify denial of a continuance beyond two months. Discovery compliance is a necessary burden shared by all parties in litigation. There is no evidence of discovery abuse or any other evidence of discovery burden which would justify denying the present motion. Moreover, the fact that Toshiba is willing to agree to a two month continuance undercuts their suggestion that an additional month or so continuance, if required, will cause them undue
prejudice.
III. CONCLUSION
For the reasons set forth in Plaintiffs' motion and the foregoing reasons, the Court should grant Plaintiffs’ request for a two month extension. To the extent that the Court’s calendar cannot accommodate a January trial date, Plaintiffs request a trial date as soon thereafter as is possible.
DATED: By: Roger L. Cook
TOWNSEND and TOWNSEND and CREW LLP
Roger L. Cook, CA State Bar No. 55208
Lead Counsel
