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

Case 3:07-cv-02156-L-AJB

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1 JOHN M. BENASSI (SBN 74137) 2 OWAIS SIDDIQUI (SBN 230004) 3 SAMUEL R. HELLFELD (SBN 234421) 4 5 6 7 8
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] PULSE~LINK, INC. TERRENCE P. MCMAHON (SBN 71910) JAMES W. SOONG (SBN 196092) 3150 Porter Drive MATTHEW C. LAPPLE (SBN 193546)

9 Attorneys for Plaintiff and Counterclaim Defendant 10

11 TIMUR S. ENGIN (SBN 229944)

12 MCDERMOTT WILL & EMERY LLP 13 Palo Alto CA 94304 14 Facsimile: 650.813.5100
Telephone: 650.813.5000

15 Attorneys for Defendant and Counterclaim Plaintiff 16 17 18 19
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA CASE NO. 07 CV 2156 L (AJB) JOINT RULE 26(F) REPORT AND JOINT DISCOVERY PLAN [LOCAL RULE 26.1] DATE: Defendant. MARCH 3, 2008 TZERO TECHNOLOGIES, INC.

20 PULSE~LINK INCORPORATED, 21
v. Plaintiff,

22 23 24 25 26 27
Heller Ehrman LLP

TZERO TECHNOLOGIES INCORPORATED,

HON. ANTHONY J. BATTAGLIA

AND RELATED CROSS ACTION.

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1 TO: The Honorable Anthony J. Battaglia: 2
Due to the holiday on February 18, 2008, on February 19, 2008, counsel for Plaintiff

3 Pulse~LINK Incorporated and counsel for Defendant Tzero Technologies, Incorporated conferred 4 telephonically pursuant to Rule 26(f) of the Federal Rules of Civil Procedure and the ENE 5 Scheduling Order. The following summarizes the parties' views of the matters required by 6 Rule 26(f), Local Rule 26.1 and the Patent Local Rules. 7 8
Factual Summary Plaintiff Pulse~LINK Incorporated ("Pulse~LINK") alleges that Defendant Tzero

9 Technologies, Incorporated ("Tzero") has and continues to willfully infringe Pulse~LINK's Patent 10 Nos. 6,895,034 and 7,099,368 regarding technology for Ultra-Wideband communications through a 11 wired medium. Tzero denies infringement of Pulse~LINK's Patent Nos. 6,895,034 and 7,099,368 12 (collectively, the "Patents-In-Suit"). Tzero also contends that the Patents-In-Suit are invalid. 13
The complaint was filed on November 9, 2007 with the Court. Defendant Tzero answered

14 the complaint on January 2, 2008 with multiple affirmative defenses and a counterclaim with two 15 counts for declaratory relief. Plaintiff Pulse~LINK replied to Defendant's counterclaims on 16 January 18, 2008. On February 19, 2008, counsel held a telephonic conference pursuant to Rule 17 26(f) of the Federal Rules of Civil Procedure to discuss the case. The parties have not yet discussed 18 potential settlement of this case. An Early Neutral Evaluation/Initial Case Management Conference 19 is scheduled for March 10, 2008, before the Honorable Anthony J. Battaglia. 20 21
Principal Issues Of The Case The principal issues in this case are: (1) whether Defendant Tzero infringes the Patents-In-

22 Suit; (2) whether Defendant Tzero contributes to and/or induces others to infringe the Patents-In23 Suit; (3) whether Defendant Tzero's infringement of the Patents-In-Suit was willful; (4) whether the 24 Patents-In-Suit are invalid or otherwise do not meet the requirements of 35 U.S.C. §§ 102, 103, 25 and/or 112; (5) whether Plaintiff has complied with the requirements of 35 U.S.C. § 287; and (6) 26 the appropriate damages, judgment, and/or injunctive relief, if any, with regard to the above claims. 27 ///
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Initial Disclosures The parties have discussed the exchange of the Rule 26(a) disclosures, and have agreed to

3 exchange initial disclosures by March 4, 2008. The parties have agreed to jointly prepare and 4 submit to the Court a Stipulated Protective Order that will facilitate disclosures under Rule 26 and 5 the discovery process. 6 7
Modifications to the Patent Local Rule Deadlines Below is a list outlining what the parties believe may be the deadlines under the Patent

8 Local Rules for specific disclosures required for patent cases. Pursuant to the Patent Local Rules, 9 the deadline for the Claim Construction Hearing would normally be on or around September 2, 10 2008--9 months after Defendant's first appearance in the case on January 2, 2007. Under the 11 parties' proposal below, the Claim Construction Hearing would be held a few weeks later on or 12 around September 30, 2008. 13 14 15 16 17 18 19 20 21 22 23
Preliminary Infringement Contentions: Preliminary Invalidity Contentions: Preliminary Claim Construction: Responsive Claim Construction: Joint Claim Construction Statement: Complete Claim Construction Discovery: File Opening Briefs: File Responsive Briefs: Claim Construction Hearing: March 25, 2008 May 27, 2008 June 10, 2008 June 24, 2008 July 8, 2008 August 5, 2008 August 19, 2008 September 2, 2008 September 30, 20081

Discovery Relating to Claim Construction The parties disagree on whether specific limitations on discovery relating to claim

24 construction are warranted in this case. Defendant proposes that, if desired, depositions of 25 inventors may be conducted before and after the Claim Construction Hearing, with the total time 26 for the depositions of each inventor not to exceed ten hours of on the record time without leave of 27 Court. Defendants believe this approach would optimize the discovery process, and better
Heller Ehrman LLP

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Assuming the Court calendars the hearing 28 days after the responsive brief is due. 2

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1 addresses the possible need to seek discovery from the inventors on issues that may arise, or whose 2 relevance may be ascertained, until after the claim construction discovery cutoff. Such an approach 3 promotes economy because, if events in discovery and interests of justice require additional 4 inventor deposition testimony after claims construction cutoff, this approach will obviate the need 5 for the parties to petition the Court on a case by case basis as Plaintiff suggests. 6
Plaintiff does not agree that Defendant's proposal is appropriate. As a matter of efficiency,

7 and convenience to the third-party individuals, Plaintiff proposes that the patent inventor 8 depositions can and should cover all issues of the case and therefore can and should be completed 9 in a single sitting. In the unlikely circumstance that a patent inventor deposition needs to be 10 reopened after the Claim Construction Hearing, Plaintiff is not opposed to either party seeking 11 leave of Court to do so on a case-by-case basis, as long as the other party is permitted the 12 opportunity to oppose the moving party's application to re-open a patent inventor deposition. 13 14
Claim Construction Hearing The parties jointly propose that the Court set aside time at the Claim Construction Hearing

15 for each party to deliver a 30 minute tutorial on the technology at issue presented by counsel or a 16 designated expert for the party. Given the complexity of the technology at issue, Plaintiff proposes 17 that the parties be permitted to present live testimony at the hearing including expert testimony. 18 Defendant disagrees with Plaintiff's proposal because, unlike intrinsic evidence, expert testimony 19 has little probative value in construing claim terms. See, e.g., Phillips v. AWH Corp., 415 F.3d 20 1303, 1318 (Fed. Cir. 1995) (en banc) ("extrinsic evidence consisting of expert reports and 21 testimony is generated at the time of and for the purpose of litigation and thus can suffer from bias 22 that is not present in intrinsic evidence"), cert. denied, 126 S. Ct. 1332 (2006). However, in the 23 event that the Court would like to entertain expert testimony, Defendant reserves its right to present 24 live testimony at the hearing, including expert testimony. 25
As to the order of presentation at the hearing, the parties agree that Plaintiff will go first

26 followed by Defendant. 27 ///
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Discovery Plan With the exception of the Claim Construction Hearing date, the parties have not been able

3 to agree on the governing schedule. Accordingly, the table below lists each party's proposed 4 deadlines for this case. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Heller Ehrman LLP

Event Claim Construction Hearing: Factual Discovery Cut Off: Opening Expert Reports: Rebuttal Expert Reports: Expert Discovery Cut Off: Motion Cut Off: Pretrial Conference: Jury Trial:

Plaintiff's Proposal September 30, 2008 December 31, 2008 February 20, 2009 March 20, 2009 April 20, 2009 June 1, 2009 August 3, 2009 September 3, 2009

Defendant's Proposal September 30, 2008 January 16, 2009 March 27, 2009 May 29, 2009 July 31, 2009 September 25, 2009 January 8, 2010 February 8, 2010

The parties anticipate discovery related to each of the issues identified in the Principal Issues of the Case section of this report. Modifications to the Federal Rules Regarding Discovery As a matter of economy, Defendant proposes that the parties be limited to seven (7) depositions in this case. Plaintiff does not agree that Defendant's proposed limitation is appropriate in this case and is therefore opposed to it. Plaintiff proposes that each party may take ten (10) factual depositions and up to three (3) expert depositions. Defendant believes that Plaintiff's proposal for 13 depositions is contrary to the Federal Rules and would be a waste of resources in this action. The parties agree that communications with testifying experts, including correspondence and drafts of expert reports, shall not be discoverable. The parties propose to modify the requirements of F.R.C.P. 26(b)(5)(A) as they apply to documents created after the filing of the Complaint. In this regard, the parties propose that to the extent discovery requests call for documents protected by the attorney-client and/or work-product doctrines which were a) created after the filing of the Complaint, and b) involve counsel of record

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1 in this case, such documents need not be entered into a privilege log or otherwise described as 2 indicated in F.R.C.P. 26(b)(5)(A). Only privileged or protected documents a) in existence prior to 3 the filing of the Complaint or b) which were not created by or intended for counsel of record need 4 be logged or otherwise described as set forth in F.R.C.P. 26(b)(5)(A). 5
Finally, the parties have consented to service by email in this case. The parties have

6 furthermore agreed that service via email shall be considered the same as hand service for purposes 7 of calculating deadlines under the Federal Rules of Civil Procedure as long as such email is sent no 8 later than 5:30 P.M. (PST). 9
Other than the above modifications, neither party believes that any changes to the Federal

10 Rules of Civil Procedure related to discovery would be warranted in this case. 11 12
Motion Schedule The parties contemplate that one or both of them will make one or more motions for

13 summary judgment at the appropriate time. 14 15
Additional Matters Plaintiff Pulse~LINK proposes that the trial in this matter should last 7-10 days. Defendant

16 Tzero, believes that the trial in this matter could be completed in 5 days. In addition, Plaintiff 17 Pulse~LINK proposed that the parties discuss and come to an agreement regarding the possibility 18 of additional parties. Defendant Tzero believes that later discussion of this topic after initial 19 discovery would be more productive for the parties. 20 DATED: March 3, 2008 21 22 23 24 25 DATED: March 3, 2008 26 27
Heller Ehrman LLP

Respectfully submitted, McDERMOTT, WILL & EMERY LLP

By:

s/ James W. Soong Attorneys for Defendant TZERO TECHNOLOGIES INC.

HELLER EHRMAN LLP

By:

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s/ Matthew C. Lapple Attorneys For Plaintiff PULSE~LINK INCORPORATED 5

JOINT RULE 26(F) REPORT AND JOINT DISCOVERY PLAN

07 CV 2156 L (AJB)