Free Report of Rule 26(f) Planning Meeting - District Court of California - California

Case 3:07-cv-02407-JAH-AJB

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1 JOHN M. BENASSI (SBN 74137) 2 MATTHEW C. LAPPLE (SBN 193546) 3 OWAIS SIDDIQUI (SBN 230004) 4 5 6 7 8 9 10
DAVID E. KLEINFELD (SBN 110734)

SAMUEL R. HELLFELD (SBN 234421) HELLER EHRMAN LLP 4350 La Jolla Village Drive, 7th Floor San Diego, CA 92122-1246 Telephone: 858.450.8400 Facsimile: 858.450.8499 [email protected] [email protected] [email protected] [email protected] Attorneys for Plaintiff PULSE~LINK, INC. TERRENCE P. MCMAHON (SBN 71910) JAMES W. SOONG (SBN 196092) 3150 Porter Drive

11 TIMUR S. ENGIN (SBN 229944)

12 MCDERMOTT WILL & EMERY LLP 13 Palo Alto CA 94304 14 Facsimile: 650.813.5100 15 [email protected] 16 17 18 19 20 21 22 23 v.
Plaintiff, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA PULSE~LINK INCORPORATED, CASE NO. 07 CV 2407 JAH (AJB) JOINT RULE 26(F) REPORT AND JOINT DISCOVERY PLAN [LOCAL RULE 26.1] DATE: APRIL 23, 2008 [email protected] [email protected] Attorneys for Defendant TZERO TECHNOLOGIES, INC. Telephone: 650.813.5000

24 TZERO TECHNOLOGIES INCORPORATED, 25
Defendant.

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HON. ANTHONY J. BATTAGLIA

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1 TO: Honorable Magistrate Anthony J. Battaglia: 2
On April 2, 2008, counsel for Plaintiff PULSE~LINK Incorporated and counsel for

3 Defendant Tzero Technologies Incorporated conferred telephonically pursuant to Rule 26(f) of the 4 Federal Rules of Civil Procedure. The following summarizes the parties' views of the matters 5 required by Rule 26(f) and Local Rule 26.1. 6 7
Factual Summary Plaintiff PULSE~LINK Incorporated ("PULSE~LINK") alleges that Defendant Tzero

8 Technologies Incorporated ("Tzero") has engaged in false advertising in violation of Section 43(a) 9 of the Lanham Act (15 U.S.C. § 1125(a)). PULSE~LINK also alleges that Tzero engaged in unfair 10 competition, intentional and negligent interference with PULSE~LINK's prospective economic 11 relations, and false and misleading advertising in violation of California statutory and common law. 12
Tzero denies that it has made any false statements regarding PULSE~LINK or its products.

13 Tzero contends that all it has done has been to compete with PULSE~LINK on the merits--to the 14 extent that it competes with PULSE~LINK at all; indeed, as PULSE~LINK admits in its 15 Complaint, none of the statements that PULSE~LINK alleges are false even mention 16 PULSE~LINK or any of PULSE~LINK's products. See, e.g., PULSE~LINK's Complaint at ¶ 37. 17
The complaint was filed on December 21, 2007 with the Court. Defendant Tzero answered

18 the complaint on January 25, 2008 with multiple affirmative defenses. On March 10, 2008, the 19 Court held a ENE Hearing in the 07cv2156 case (recently consolidated as 07cv1125) at which time 20 the potential settlement of this case was also discussed. Since then, the parties have continued to 21 meet to discuss the potential settlement of this case. On April 2, 2008, counsel held a telephonic 22 conference pursuant to Rule 26(f) of the Federal Rules of Civil Procedure to discuss the case. 23 Although the parties have not reached a settlement, they are continuing to discuss potential 24 settlement in good faith and have exchanged draft settlement agreements. A telephonic Case 25 Management Conference is scheduled for April 30, 2008 before the Honorable Anthony J. 26 Battaglia. 27 ///
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Principal Issues Of The Case PULSE~LINK contends that the principal issues in this case are: (1) whether Defendant

3 Tzero has made false, deceptive and misleading descriptions and misrepresentations regarding the 4 nature, characteristics, qualities and/or approval of both PULSE~LINK's technology and/or Tzero's 5 competing technology in violation of Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a); (2) 6 whether Defendant Tzero has engaged in unfair competition and deceptive trade practice in 7 violation of Cal. Bus & Prof. Code §§ 17200 et seq.; (3) whether Defendant Tzero has intentionally 8 interfered with PULSE~LINK's prospective economic relations in violation of California common 9 law; (4) whether Defendant Tzero has negligently interfered with PULSE~LINK's prospective 10 economic relations in violation of California common law; (5) whether Defendant Tzero has 11 engaged in false and misleading advertising in violation of Cal. Bus & Prof. Code §§ 17500 et seq. 12 and the common law; (6) whether Defendant Tzero has engaged in unfair competition in violation 13 of California common law; and (6) the appropriate damages, judgment, and/or injunctive relief, if 14 any, with regard to the above claims. 15
Tzero contends that one of the principal issues in this case is whether competition on the

16 merits, including making true statements that do not even mention PULSE~LINK or its products, 17 can form the basis for a Lanham Act/false advertising case. 18 19
Initial Disclosures The parties have discussed the exchange of the Rule 26(a) disclosures, and have agreed to

20 exchange initial disclosures by May 1, 2008. 21 22
Not A Complex Case The parties do not consider this a complex case that should be governed by the rules set

23 forth in the Manual for Complex Litigation. 24 25
Discovery Plan The parties have not been able to agree on the governing schedule. Accordingly, the table

26 below lists each party's proposed deadlines for this case. 27 ///
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Event Close of Fact Discovery Opening Expert Reports: Rebuttal Expert Reports: Expert Discovery Cut Off: Motion Cut Off: Pretrial Conference: Jury Trial: Plaintiff's Proposal November 10, 20082 October 6, 2008 October 27, 2008 November 10, 2008 December 9, 2008 January 19, 2009 February 16, 2009 Defendant's Proposal1 February 6, 2009 March 6, 2009 May 8, 2009 June 26, 2009 July 31, 2009 September 11, 2009 November 2, 2009

The parties anticipate discovery related to each of the issues identified in the Factual

10 Summary and Principal Issues of the Case sections of this report. 11 12
Discovery and Document Production Issues The parties have agreed to jointly prepare and submit to the Court a Stipulated Protective

13 Order that will facilitate disclosures under Rule 26 and the discovery process as well as contain the 14 parties' agreements regarding privilege issues. 15
The parties have discussed electronic discovery and are continuing to confer regarding the

16 form in which documents stored electronically will be produced. The parties have discussed and 17 have taken steps to preserve discoverable information including electronically stored documents 18 and information. 19 20
Modifications to the Federal Rules Regarding Discovery Tzero proposes that the parties be limited to seven (7) depositions each in this case. Tzero

21 contends that this case focuses on statements made in marketing and seven depositions is sufficient 22 for the two start up companies in this case to obtain the information that they need through 23 24 25 26 27
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Tzero notes that Plaintiff's proposal for expert discovery would have expert reports in this action due months before expert reports are due in Case No. '07 CV 1125 L (AJB)--despite the fact that Plaintiff initiated Case No. '07 CV 1125 L (AJB) exactly half a year before it initiated the instant action. Pulse~Link responds that, because Judge Lorenz has rejected a low-number referral of this Action, despite Pulse~Link's filing of a Notice of Related Cases, the present action is before Judge Houston and, presumably, is not considered to be sufficiently related to require trial at the same time. Accordingly, the schedule in the present case need not be tied to the schedule in the 1125 Action. 2 Pulse~Link believes that fact and expert discovery should end on the same date: November 10, 2008. ________________________________________________________________________________________________ JOINT RULE 26(F) REPORT AND 4
JOINT DISCOVERY PLAN 07 CV 2407 JAH (AJB)

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1 depositions. Plaintiff Pulse~Link does not agree that Defendant's proposal is appropriate in this 2 case. Defendant's proposed limitation--which almost cuts in half the available depositions 3 normally permitted to each party--is contrary the Federal Rules, unduly restrictive and not 4 warranted in this case. Further, because Pulse~Link anticipates that it will be required to depose 5 not only Tzero employees involved in making the false statements, but also third parties to whom 6 the false statements were made, including customers and potential customers, at least ten 7 depositions per side are warranted. Plaintiff proposes that the parties simply follow the Federal 8 Rules of Civil Procedure whereby each party may take up to ten (10) depositions, with the ability to 9 seek additional depositions beyond this limit for good cause shown. 10
The parties agree that communications with testifying experts, including correspondence

11 and drafts of expert reports, shall not be discoverable. 12
The parties propose to modify the requirements of F.R.C.P. 26(b)(5)(A) as they apply to

13 documents created after the filing of the Complaint. In this regard, the parties propose that to the 14 extent discovery requests call for documents protected by the attorney-client and/or work-product 15 doctrines which were a) created after the filing of the Complaint, and b) involve counsel of record 16 in this case, such documents need not be entered into a privilege log or otherwise described as 17 indicated in F.R.C.P. 26(b)(5)(A). Finally, the parties have consented to service by email in this 18 case. The parties have furthermore agreed that service via email shall be considered the same as 19 hand service for purposes of calculating deadlines under the Federal Rules of Civil Procedure as 20 long as such email is sent no later than 5:30 P.M. (PST). 21 22
Motion Schedule The parties contemplate that one or both of them will make one or more motions for

23 summary judgment at the appropriate time. 24 25
Potential Settlement The parties have discussed settlement outside the presence of counsel, but have not reached

26 a resolution at this point. The parties are continuing in good faith to try to settle this case and are 27 close to reaching an agreement. In fact, the parties have exchanged drafts of settlement agreements.
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Trial Estimate The parties estimate that a jury trial in this action will require 5 days. Additional Parties At this time, neither side anticipates the appearance of additional parties. Unless discovery

5 yields new evidence, it is not anticipated that any other additional parties will be added or that the 6 complaint or counterclaims will be amended to additional parties. 7 8 DATED: April 23, 2008 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
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Respectfully submitted, McDERMOTT, WILL & EMERY LLP

By:

s/ Timur S. Engin Attorneys for Defendant TZERO TECHNOLOGIES INC.

DATED: April 23, 2008

HELLER EHRMAN LLP By: s/ Matthew C. Lapple Attorneys For Plaintiff PULSE~LINK INCORPORATED

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