Free Declaration in Support - District Court of California - California

Case 5:07-mc-80226-JF

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MARTHA C. LUEMERS SBN 104658 DORSEY & WHITNEY LLP 1717 Embarcadero Road P.O. Box 51050 Palo Alto, California 94303 Telephone: (650) 857-1717 Facsimile: (650) 857-1288 E-mail: [email protected] E-mail: [email protected] PAUL T. MEIKLEJOHN, Pro Hac Vice App. Pending DOUGLAS F. STEWART, Pro Hac Vice App. Pending DORSEY & WHITNEY LLP U.S. Bank Centre 1420 Fifth Ave., Suite 3400 Seattle, WA 98101 Telephone: (206) 903-8800 Facsimile: (206) 903-8820 E-mail: [email protected] E-mail: [email protected] Attorneys for Defendants TOSHIBA CORPORATION and TOSHIBA AMERICA CONSUMER PRODUCTS LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NEW MEDIUM TECHNOLOGIES LLC, AV TECHNOLOGIES LLC, J. CARL COOPER, PIXEL INSTRUMENTS CORPORATION, IP INNOVATION LLC, and TECHNOLOGY LICENSING CORPORATION, Plaintiffs, v. BARCO N.V., MIRANDA TECHNOLOGIES, TOSHIBA CORPORATION, TOSHIBA AMERICA CONSUMER PRODUCTS, L.L.C., and SYNTAX-BRILLIAN CORPORATION, Defendants. DECLARATION OF AMY G. O'TOOLE IN SUPPORT OF MOTION TO SHORTEN TIME FOR PRESENTMENT OF MOTION TO COMPEL DEPOSITION OF JERRY B. TORRANCE, JR. MISC. CASE NO. CV 07 80226 JF (RS) Underlying Action USDC Northern District of Illinois Eastern Division Civil Action No. 05-CV-5620

-1DECLARATION OF AMY G. O'TOOLE MISC. CASE NO. CV 07 80226 JF (RS)

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I, Amy G. O'Toole, declare as follows: 1. I am a partner with the law firm of Bell, Boyd & Lloyd LLP, co-counsel for

Toshiba Corporation and Toshiba America Consumer Products, L.L.C. ("Toshiba") in an action pending in the District Court for the Northern District of Illinois between the parties and with the civil action number set forth above (the "Underlying Action"). The statements made herein are of my own first-hand knowledge, and if called upon to testify thereto I could and would do so competently. Pursuant to Civil Local Rule 6-3, I make this declaration in support of Toshiba's Motion to Shorten Time for Presentment of Motion to Compel the Deposition of Jerry B. Torrance, Jr. 2. Plaintiffs in the Underlying Action allege patent infringement against Toshiba and

several other defendants. While one of the patents-in-suit was being prosecuted in the United States Patent and Trademark Office ("PTO"), Jerry B. Torrance, Jr. ("Torrance") submitted a personal declaration to the PTO in support of the pending patent application. Torrance's declaration was instrumental to the issuance of the patent. 3. On August 6, 2007, Toshiba properly served Torrance with a subpoena

commanding him to appear for a deposition in this judicial district on August 27, 2007. After the subpoena was served on Torrance, Plaintiffs' counsel informed us that they would be representing Torrance in connection with his deposition. Plaintiffs' counsel then refused to produce Torrance for deposition on August 27, 2007, or to provide a mutually agreeable date for deposition before October 19, 2007, the Court's deadline for fact discovery. 4. Counsel for Toshiba has made a good faith effort to resolve the subject of this

motion, as set forth in the Declaration of Paul T. Meiklejohn filed concurrently herewith. In addition, on August 29, 2007, I had an in-person discussion with plaintiffs' counsel, Paul Gibbons, at the District Court for the Northern District of Illinois. This discussion was shortly following a Court status hearing. We discussed Torrance's availability for deposition before October 19, 2007, and Mr. Gibbons represented that Torrance was unavailable for deposition until the end of October. When Mr. Gibbons was asked the reason for Torrance's unavailability, -2DECLARATION OF AMY G. O'TOOLE MISC. CASE NO. CV 07 80226 JF (RF)

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Mr. Gibbons represented that he might be out of the country, but he would not confirm any details concerning Torrance's whereabouts. Mr. Gibbons refused to contact Torrance to further determine whether Torrance could attend a deposition on or before October 19, 2007. Mr. Gibbons also refused to provide a mutually available date for deposition after October 19, 2007, with the understanding that the parties could request the Court for leave to conduct Torrance's deposition after October 19, 2007. 5. There have been previous modifications to the scheduling order in this case, and

for that reason, Toshiba seeks to complete its fact discovery prior to the existing and established October 19, 2007 deadline. On both plaintiffs' and defendants' motions to amend the case schedule for one or more parties, fact discovery has been extended approximately three times. Toshiba's motion to shorten time will not adversely affect the schedule for this case. To the contrary, Toshiba seeks by this motion to complete Torrance's deposition within the existing schedule. 6. Under the Local Rules for this Court, ordinarily motions are filed, briefed, and

argued on a 35 day schedule. If this Court does not shorten the time under which the motion to compel is heard, it will not be heard until after the October 19, 2007 deadline for completion of fact discovery, which could result in substantial harm or prejudice to Toshiba if Toshiba is precluded from deposing Torrance. 7. On September 21, 2007, I telephoned plaintiffs' counsel, Paul Gibbons, to advise

him of Toshiba's intention to file a motion to compel on September 24, 2007, and to request that he stipulate that the motion be heard on an expedited basis. Mr. Gibbons was not able to take my call, so I left him a voicemail and then followed up with an email, a true and correct copy of which is attached to my declaration as Exhibit A. As of the date and time of my execution of this Declaration, Mr. Gibbons has not responded to my voicemail or email. I declare under penalty of perjury that the foregoing is true and correct. Executed this 24th day of September, 2007 at 2:00 p.m. in Chicago, Illinois.

-3DECLARATION OF AMY G. O'TOOLE MISC. CASE NO. CV 07 80226 JF (RF)

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__ /S/ AMY G. O'TOOLE

Attorney Signature Attestation I, Martha C. Luemers, hereby attest that I have on file all holographic signatures for any signatures indicated by a conformed signature within this e-filed document. /S/ MARTHA C. LUEMERS