Free Declaration in Support - District Court of California - California

Case 5:08-cv-00133-RMW

Document 47

Filed 03/19/2008

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1 Henry C. Su (SBN 211202; [email protected]) Katharine L. Altemus (SBN 227080; [email protected]) 2 HOWREY LLP 1950 University Avenue, 4th Floor 3 East Palo Alto, California 94303 Telephone: (650) 798-3500 4 Facsimile: (650) 798-3600 5 Robert Ruyak Matthew Wolf 6 Marc Cohn HOWREY LLP 7 1229 Pennsylvania Avenue, NW Washington, DC 20004 8 Telephone: (202) 783-0800 Facsimile: (202) 383-6610 9 Attorneys for Plaintiffs 10 HOLOGIC, INC., CYTYC CORPORATION and HOLOGIC LP 11 12 13 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. C08 00133 RMW (RS) DECLARATION OF KATHARINE L. ALTEMUS IN SUPPORT OF PLAINTIFFS' MOTION TO SHORTEN TIME ON PLAINTIFFS' MOTION TO COMPEL Date: No hearing requested Judge: Hon. Richard Seeborg

14 HOLOGIC, INC., CYTYC CORPORATION, and HOLOGIC L.P., 15 Plaintiffs, 16 vs. 17 SENORX, INC., 18 Defendant. 19 20 AND RELATED COUNTERCLAIMS. 21 22 23 24 25 26 27 28
Altemus Decl. ISO Mtn to Shorten Time Case No. C08 00133 RMW (RS)
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I, Katharine L. Altemus, declare as follows: 1. I am an associate in the law firm Howrey LLP and a member of the Bar of this court. I

serve as one of the outside counsel for Hologic, Inc., Cytyc Corporation and Hologic LP (collectively "Plaintiffs" or "Hologic"). The following declaration is based on my personal knowledge, and if called upon to testify, I could and would competently testify as to the matters set forth herein.

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2.

Hologic seeks to shorten the time under the Civil Local Rules for the briefing of its

2 Motion to Compel Responses To Certain Interrogatories and to waive the requirement of a hearing. 3 (Doc. No. 44). That Motion seeks to compel Defendant SenoRx, Inc. ("SenoRx") to respond 4 completely and fully to Interrogatories Nos.1-3, served by Hologic on March 4, 2008. 5 3. At the February 29, 2008 case management conference, the Court continued the hearing

6 on Hologic's Motion for Preliminary Injunction from the noticed date of March 28, 2008 to April 21, 7 2008. In conjunction with that case management conference, the parties, through their counsel, agreed 8 to respond within a shortened period of time (10 days) to each other's Interrogatories aimed at eliciting 9 information relevant and necessary for each party to prepare for the scheduled April 21, 2008 10 Preliminary Injunction hearing. Notwithstanding that agreement, SenoRx has, in its Objections and 11 Responses served on March 14, 2008, refused to answer Hologic's Interrogatories Nos. 1-3 until it has 12 filed its Opposition to the Motion for Preliminary Injunction, which is due on March 28, 2008. 13 SenoRx has objected to these Interrogatories as premature and as conflicting with the briefing schedule 14 agreed upon by the parties. 15 4. Hologic seeks to shorten the time on its Motion to Compel because SenoRx's

16 Opposition to the Motion for Preliminary Injunction is not due until March 28, 2008, and the 17 Preliminary Injunction hearing is scheduled for April 21, 2008. SenoRx's refusal to completely and 18 fully respond to the Interrogatories deprives Hologic of any meaningful opportunity to obtain 19 expedited discovery with respect to SenoRx's contentions and key facts on the Motion for Preliminary 20 Injunction. Moreover, SenoRx's refusal threatens to derail the briefing schedule on the Motion for 21 Preliminary Injunction to which it agreed because Hologic will be left with little or no time to take 22 limited discovery before it has to file its Reply to SenoRx's Opposition. 23 5. Accordingly, the only way that the discovery and briefing on the Motion for

24 Preliminary Injunction can stay on the schedule agreed upon by the parties and ordered by the Court is 25 if the Court shortens the time for SenoRx to respond to Hologic's Motion to Compel and rules on the 26 issue without a hearing. 27 28
Altemus Decl. ISO Mtn to Shorten Time Case No. C08 00133 RMW (RS)
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6.

Hologic asked SenoRx to agree to the requested time change during a meet and confer

2 on March 18, 2008. Hologic proposed that SenoRx agree to an expedited briefing schedule whereby 3 SenoRx would reply to the accompanying motion to compel on or before March 21, 2008. SenoRx 4 agreed in principle to stipulate to shortened time, but refused to agree to any shortened schedule that 5 allocated less than 6 days for SenoRx to file its Opposition to Hologic's Motion To Compel Responses 6 To Certain Interrogatories on March 23, 2008. The parties have not been able to reach an agreement 7 regarding an expedited schedule for resolving Hologic's Motion to Compel. Counsel for SenoRx 8 agreed to waive a hearing on the Motion to Compel if Hologic does not file a reply. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Altemus Decl. ISO Mtn to Shorten Time Case No. C08 00133 RMW (RS)
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I declare under penalty of perjury that the foregoing is true and correct. Executed in East Palo Alto, California on March 19, 2008.

/s/ Katharine L. Altemus

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