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

Case 5:07-mc-80226-JF

Document 4

Filed 09/24/2007

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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. 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

-1MOTION TO SHORTEN TIME MISC. CASE NO. CV 07 80226 JF (RS)

Case 5:07-mc-80226-JF

Document 4

Filed 09/24/2007

Page 2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 POINTS AND AUTHORITIES Plaintiffs have sued Toshiba and other defendants in the District Court for the Northern District of Illinois (the "Underlying Action") alleging patent infringement. Declaration of Amy G. O'Toole in Support of Motion To Shorten Time, etc. ("O'Toole Decl.") at ¶¶ 1-2. 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. O'Toole Decl. at ¶ 2. Torrance's declaration was instrumental to the issuance of the patent. Id. 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. O'Toole Decl. ¶ 3. After the subpoena was served on Torrance, who is a third-party to this action, Plaintiffs' counsel announced that they would be representing Torrance in connection with his deposition, and 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 in the Underlying Action. Id. Toshiba's counsel has made substantial efforts to resolve the issue. Declaration of Paul T. Meiklejohn in Support of Motion to Compel, etc., filed contemporaneously herewith ("Meiklejohn Decl.") ¶¶ 5-8. But in the entire 74-day period between August 6, when Torrance was served with the deposition subpoena, and the October 19 fact discovery cut off, Plaintiffs'/Torrance's counsel offered only two dates for Torrance's deposition, both of which -2MOTION TO SHORTEN TIME MISC. CASE NO. CV 07 80226 JF (RS)

REQUESTED COURT ACTION Pursuant to Local Rule 6-3(a), Defendants Toshiba Corporation and Toshiba America Consumer Products, L.L.C. (collectively referred to as "Toshiba") respectfully request entry of an order shortening the time within which their contemporaneously-filed Motion to Compel the Deposition of Jerry B. Torrance, Jr. is heard, so that the deposition may be taken before the October 19, 2007 fact discovery cut-off in the underlying action.

Case 5:07-mc-80226-JF

Document 4

Filed 09/24/2007

Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

were known to Plaintiffs'/Torrance's counsel to be unavailable for Toshiba's counsel because of other previously scheduled depositions in this case. Id. Most recently, after Plaintiffs'/Torrance's counsel suggested vaguely that Torrance could not be made available for deposition before October 19 because he might be out of the country, Toshiba's counsel wrote to Plaintiffs'/Torrance's counsel on September 10, 2007 requesting that Plaintiffs'/Torrance's counsel provide Torrance's first available date after Torrance's return and stipulate that Torrance's deposition could be taken on that date if it was past the discovery cut-off. O'Toole Decl. ¶ 4; Meikeljohn Decl. Exh. M.. Plaintiffs'/Torrance's counsel has failed to respond. Meikeljohn Decl. ¶ 8. Therefore, contemporaneous with the filing of this motion to shorten time, Toshiba is filing its Motion to Compel the Deposition of Jerry B. Torrance, Jr. ("Motion to Compel"). There is insufficient time to hear the motion on the Court's usual schedule before October 19, 2007, and substantial prejudice will result to Toshiba if it is unable to complete the deposition of Torrance before that date, because it is the cut-off for fact discovery in the Underlying Action. O'Toole Decl. ¶ 6. Therefore, Toshiba requests that the Court enter an order setting the following schedule for Toshiba's Motion to Compel: Opposition Reply Hearing October 3, 2007 October 9, 2007 October 12, 2007

Toshiba to serve Order Shortening Time on Plaintiffs'/Torrance's counsel within one court day following receipt. Opposition and Reply briefs to be served by e-mail on the day of filing and via hand delivery or overnight mail no later than one day after filing. Counsel for Plaintiffs/Torrance has not consented to this schedule (see O'Toole Decl. ¶ 7), but it provides Plaintiffs'/Torrance's counsel 7 court days for filing an opposition to Toshiba's Motion to Compel while providing Toshiba 3 court days for a reply. If the Court grants Toshiba's motion on October 12, one week would remain within which to take Torrance's deposition before the October 19 discovery cut-off. -3MOTION TO SHORTEN TIME MISC. CASE NO. CV 07 80226 JF (RS)

Case 5:07-mc-80226-JF

Document 4

Filed 09/24/2007

Page 4 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

For the reasons set forth above, Toshiba respectfully submits that its Motion For An Order Shortening Time for Presentment of Motion to Compel Deposition of Jerry B. Torrance should be granted. Dated: September 24, 2007 DORSEY & WHITNEY LLP

By

/S/ MARTHA C. LUEMERS Attorneys for Defendants TOSHIBA CORPORATION and TOSHIBA AMERICA CONSUMER PRODUCTS LLC

-4MOTION TO SHORTEN TIME MISC. CASE NO. CV 07 80226 JF (RS)