Free Motion to Shorten Time - District Court of California - California

Case 5:08-cv-00133-RMW

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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) NOTICE OF ADMINISTRATIVE MOTION AND ADMINISTRATIVE MOTION TO SHORTEN TIME ON PLAINTIFFS' MOTION TO COMPEL RESPONSES TO CERTAIN INTERROGATORIES 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
Pls.' Motion to Shorten Time Case No. C08 00133 RMW (RS)
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NOTICE OF MOTION AND MOTION TO SHORTEN TIME Pursuant to Federal Rule of Civil Procedure 6(d) and Civil Local Rule 6-3 Plaintiffs Hologic,

3 Inc., Cytyc Corporation, and Hologic L.P. (collectively, "Hologic") hereby move to shorten the time 4 for Defendant SenoRx, Inc.'s ("SenoRx") response to, and this Court's consideration of, its Notice of 5 Motion and Motion to Compel Responses To Certain Interrogatories ("Motion to Compel"), also 6 served and filed on this date. Specifically, Hologic seeks an expedited briefing schedule under which: 7 (1) SenoRx would file its Opposition to Hologic's Motion to Compel, if any, no later than Friday 8 March 21, 2008, and (2) Hologic would forego a written Reply to SenoRx's Opposition. Hologic 9 further requests that the Court dispense with the requirement of a hearing on its Motion to Compel and 10 issue a ruling based on the papers. 11 The Memorandum of Points and Authorities below and the accompanying Declaration

12 of Katharine L. Altemus establish good cause for this Motion. 13 14 MEMORANDUM OF POINTS AND AUTHORITIES Good cause exists to shorten the time with respect to the resolution of Hologic's Motion to

15 Compel. 1 On February 29, 2008, at the initial case management conference conducted by Judge 16 Whyte, the parties agreed to respond to each other's Interrogatories within a shortened period of time 17 (10 days). Declaration Of Katharine L. Altemus In Support Of Plaintiffs' Motion To Shorten Time On 18 Plaintiffs' Motion To Compel, ¶ 3. The parties agreed to limit their Interrogatories to seek information 19 relevant and necessary for the scheduled April 21, 2008 Preliminary Injunction hearing. Id., ¶ 3. 20 Indeed, both parties served nearly identical sets of Interrogatories, seeking positions on 21 infringement/non-infringement of the two claims at issue in the Motion for Preliminary Injunction as 22 well as contentions regarding irreparable harm. 23 \\ 24 25
1 Rule 6 of the Federal Rules of Civil Procedure authorizes this Court, in its discretion, to issue an 26 order shortening time with respect to the briefing and hearing on Hologic's Motion to Compel. Fed. R. Civ. P. 6(d). See also United States v. Fitch, 472 F.2d 548, 549 n.5 (9th Cir. 1973) ("Rule 6(d), F. R. 27 Civ. P., allows the district court discretion to shorten time.").

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-2Pls.' Motion to Shorten Time Case No. C08 00133 RMW (RS)
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Hologic timely answered SenoRx's interrogatories, setting forth its bases for infringement and

2 irreparable harm. SenoRx, however, refused to answer Hologic's Interrogatories Nos. 1-3 regarding 3 non-infringement and harm. Id. Instead, SenoRx stated that it would not disclose any information 4 regarding its contentions on these issues except in the context of its Opposition to the Motion for 5 Preliminary Injunction due on March 28, 2008 ­ a mere ten calendar days before Hologic's reply brief 6 is due. Id.. SenoRx's position is contrary to the parties' agreement on the discovery and briefing 7 schedule on the Motion for Preliminary Injunction, and deprives Hologic of any meaningful 8 opportunity for discovery prior to the due date of its Reply Brief. Id., ¶¶ 4, 5. 9 A shortened briefing schedule and a dispensation of the hearing requirement are imperative in

10 light of the current schedule: 11 12 13 14 · · · the hearing on the Motion for Preliminary Injunction is scheduled for April 21, 2008; SenoRx's Opposition to Hologic's Motion for Preliminary Injunction is due March 28, 2008; and Hologic's Reply to SenoRx's Opposition is due April 7, 2008.

15 Critically, Hologic has noticed the Rule 30(b)(6) corporate deposition of SenoRx, and has asked 16 SenoRx to present the designee(s) on Monday, March 24 or Tuesday, March 25, 2008, and Hologic 17 must have SenoRx's answers to its Interrogatories by then so that its counsel can examine SenoRx's 18 designee(s) about them. If Hologic were forced to await SenoRx's brief on March 28, 2008 before 19 learning of its positions on noninfringement and irreparable harm, then the Rule 30(b)(6) deposition, as 20 well as additional depositions of anyone on whom SenoRx relies for a declaration in support of its 21 brief, would have to occur in the single remaining week before Hologic's reply brief is due. There is 22 simply no time under the current schedule to allow SenoRx to put off responding to Hologic's 23 interrogatories. In any event, as set forth in Hologic's Motion to Compel., there is no basis for not 24 answering now. SenoRx has the information that is being requested ­ it had to have a basis for 25 answering the Complaint and denying that it infringed ­ and Hologic's discovery was timely 26 propounded. 27 \\ 28
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If it were noticed on the regular motions calendar, Hologic's Motion to Compel would not be

2 heard until after the Preliminary Injunction hearing. Hologic, therefore, respectfully requests a 3 shortened briefing schedule on its Motion to Compel and a dispensation of the hearing requirement so 4 that this discovery dispute can be resolved promptly. The discovery dispute that is being presented is 5 simple and discrete, and the parties' positions can be adequately presented on the papers. Hologic 6 proposes a briefing schedule under which: (1) SenoRx would file its Opposition to Hologic's Motion 7 to Compel, if any, no later than March 21, 2008, and (2) Hologic would forego a written Reply to 8 SenoRx's Opposition. If Hologic's Motion to Compel is not resolved on an expedited basis, then the

9 limited discovery being conducted in connection with the Motion for Preliminary Injunction will have 10 been completely one-sided -- Hologic disclosing its contentions and key facts to SenoRx but receiving 11 no responsive discovery in kind. 12 Pursuant to Fed. R. Civ. P. 37 and Civ. L.R. 37-1(a), counsel met and conferred in person on

13 March 18, 2008 regarding SenoRx's inadequate responses to Hologic's Interrogatories. SenoRx 14 indicated that it could not respond to the motion until early next week, but permitting such a delay on 15 this issue would negate any effect of Hologic's Motion to Compel, should it be granted. The parties 16 could not agree on a briefing schedule, thereby necessitating Hologic's filing of the present Motion. 17 Id., ¶ 6. SenoRx did indicate, however, that it was agreeable to dispensing with the requirement of a

18 hearing if Hologic were willing to waive the filing of a reply, which Hologic is. 19 \\ 20 21 22 23 24 25 26 27 28
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CONCLUSION For the foregoing reasons, Hologic respectfully requests that this Court enter the accompanying

3 proposed order establishing an expedited briefing schedule for Hologic's Motion to Compel. 4 Dated: March 19, 2008 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
-5Pls.' Motion to Shorten Time Case No. C08 00133 RMW (RS)
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HOWREY LLP

By:

/s/ Katharine L. Altemus

HOWREY LLP Attorneys for Plaintiffs Hologic, Inc., Cytyc Corporation, and Hologic LP

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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) [PROPOSED] ORDER SHORTENING TIME FOR PLAINTIFFS' MOTION TO COMPEL RESPONSES TO CERTAIN INTERROGATORIES

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

This matter comes before the Court on Plaintiffs' Motion To Shorten Time On Plaintiffs'

25 Motion To Compel Responses To Certain Interrogatories. Upon consideration of the memoranda filed 26 in support, the Court hereby GRANTS Plaintiff's Motion To Shorten Time On Plaintiffs' Motion To 27 Compel Responses To Certain Interrogatories. 28
[PROPOSED] ORDER SHORTENING TIME Case No. C08 00133 RMW
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Defendant's Opposition Brief in this matter, if any,

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1 shall be filed no later than March 21, 2008. Plaintiffs shall not file a Reply. No oral argument on 2 Plaintiffs' Motion To Compel Responses To Certain Interrogatories will be heard. The Court will 3 issue a ruling on Plaintiffs' Motion To Compel based on the filed briefs. 4 It is SO ORDERED. The Honorable Richard Seeborg United States District Court Magistrate Judge

5 Dated: March ____, 2008 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
-2PROPOSED] ORDER SHORTENING TIME Case No. C08 00133 RMW (RS)
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