Free Declaration in Support - District Court of California - California

Case 5:07-mc-80226-JF

Document 2

Filed 09/24/2007

Page 1 of 5

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

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]
HTU UTH

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. MISC. CASE NO. CV 07 80226 JF (RS) Underlying Action USDC Northern District of Illinois Eastern Division Civil Action No. 05-CV-5620 DECLARATION OF PAUL T. MEIKLEJOHN IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF JERRY B. TORRANCE, JR. Date: To be determined Time: To be determined Dept.: To be determined

DECLARATION OF PAUL T. MEIKLEJOHN MISC. CASE NO. CV 07 80226 JF (RS)

Case 5:07-mc-80226-JF

Document 2

Filed 09/24/2007

Page 2 of 5

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

Paul T. Meiklejohn declares: 1. I am a partner at the law firm of Dorsey & Whitney, LLP, which represents

defendants Toshiba Corporation and Toshiba America Consumer Products L.L.C. (collectively "Toshiba") in this case. I am over 21 years of age and competent to testify to the matters stated herein. 2. This is a case for alleged patent infringement. During the prosecution of one of

the patents-in-suit, Jerry B. Torrance, Jr. ("Torrance") submitted a personal declaration to the U.S. Patent and Trademark Office in support of the pending patent application. Torrance's declaration was instrumental to the issuance of the patent. As counsel for Toshiba, I am seeking to examine Torrance about his declaration. 3. On August 6, 2007, Torrance was personally served with a subpoena issued by The subpoena commanded Torrance to appear for a

my law firm on behalf of Toshiba.

deposition in this judicial district on August 27, 2007--twenty-one (21) days after the subpoena was served. 4. On August 10, 2007, one of the plaintiffs' attorneys in this case (Paul Gibbons)

wrote a letter to me stating that he was now representing Torrance. Mr. Gibbons' letter and attachment objected to the request for documents contained in the subpoena, and objected to the timing of the scheduled document production, but said nothing about the scheduled deposition date. 5. Mr. Gibbons and I communicated by telephone, email, and letter numerous times

about Mr. Torrance's deposition. Initially, Mr. Gibbons stated that Torrance was available to be deposed on only one day, August 23, 2007. That date conflicted with a previously scheduled deposition, which I was defending, of a Toshiba witness traveling from Japan. Later, Mr. Gibbons stated that Torrance was available on August 22, another date that conflicted with a previously scheduled deposition of a Toshiba witness which I was defending. I told Mr. Gibbons

Declaration of Paul T. Meiklejohn ­ Page 1

DECLARATION OF PAUL T. MEIKLEJOHN MISC. CASE NO. CV 07 80226 JF (RS)

Case 5:07-mc-80226-JF

Document 2

Filed 09/24/2007

Page 3 of 5

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

that I could not take the deposition on either August 22 or 23 because of the previously scheduled depositions of Toshiba witnesses on those days. This information was well-known to Mr. Gibbons, because he was personally involved in scheduling the depositions of the Toshiba witnesses traveling from Japan, including the depositions scheduled for August 22 and 23. 6. I advised Mr. Gibbons that I was willing to find an alternative date for the

Torrance deposition. I identified August 24 and August 28 as examples of dates when I could take the deposition. Mr. Gibbons stated that Torrance would only make himself available on the two dates mentioned above. 7. Shortly before the deposition date set forth in the subpoena, and while we were

both attending another deposition in this case, I spoke again with Mr. Gibbons about the Torrance deposition. Mr. Gibbons told me that Mr. Torrance was leaving the jurisdiction that day, and would not be available during the remainder of the discovery period. I asked Mr. Gibbons if Mr. Torrance would agree to appear for his deposition upon his return. Mr. Gibbons said no. Mr. Gibbons stated that Mr. Torrance had offered to make himself available on August 22 and 23 (when I was not available), and because I did not agree to take the deposition on one of those days, Toshiba was precluded from taking the deposition. 8. On Wednesday August 29, 2007, the trial court (Hon. Amy St. Eve) extended the

deadline for taking fact depositions to October 19, 2007. Believing that this would open up more days when Torrance could be deposed, I wrote a letter to Mr. Gibbons on September 10, 2007, asking again if Torrance would make himself available for a deposition either before or after the October 19 deadline. Mr. Gibbons has not responded to my letter. \\\\ \\\\ \\\\

Declaration of Paul T. Meiklejohn ­ Page 2

DECLARATION OF PAUL T. MEIKLEJOHN MISC. CASE NO. CV 07 80226 JF (RS)

Case 5:07-mc-80226-JF

Document 2

Filed 09/24/2007

Page 4 of 5

1 2 3

9. documents: Exhibit
U U

Attached as exhibits hereto are true and correct copies of the following

Description
U U

4 5

A B

Subpoena dated July 26, 2007 to Jerry B. Torrance, Jr., with Exhibit A thereto and "Proof of Service" declaration by process server; Notice of Deposition of Jerry B. Torrance, Jr. dated July 27, 2007 with attached copy of subpoena to Jerry B. Torrance, Jr.; Plaintiffs "Corrected Fourth Amended Complaint" filed August 15, 2007; Toshiba America Consumer Products, L.L.C.'s Answer and Counterclaims to Plaintiffs' Corrected Fourth Amended Complaint; Declaration of Jerry B. Torrance, Jr. dated July 26, 2001, filed with the United States Patent and Trademark Office, and exhibits thereto; Minute entry before the Hon. Amy St. Eve ordering (fact) depositions to be completed by October 19, 2007; Letter from Paul C. Gibbons (counsel for Torrance) to Paul T. Meiklejohn (counsel for Toshiba) dated August 10, 2007, with attached "Objections to Toshiba's August 6, 2007 Subpoena to Jerry B. Torrance, Jr."; Letter from Paul T. Meiklejohn (counsel for Toshiba) to Paul C. Gibbons (counsel for Torrance) dated August 15, 2007; Letter from Paul C. Gibbons (counsel for Torrance) to Paul T. Meiklejohn (counsel for Toshiba) dated August 16, 2007; Letter from Paul C. Gibbons (counsel for Torrance) to Paul T. Meiklejohn (counsel for Toshiba) dated August 21, 2007; Letter from Paul C. Gibbons (counsel for Torrance) to Paul T. Meiklejohn (counsel for Toshiba) dated August 22, 2007; and Email from Paul T. Meiklejohn (counsel for Toshiba) to Paul C. Gibbons (counsel for Torrance) dated August 22, 2007. Letter from Paul T. Meiklejohn (counsel for Toshiba) to Paul C. Gibbons (counsel for Torrance) dated September 10, 2007.

6 7 8 9 E 10 11 12 G 13 14 H 15 16 17 J 18 19 20 L 21 22 23 24 25 \\\\ \\\\ M K I F C D

Declaration of Paul T. Meiklejohn ­ Page 3

DECLARATION OF PAUL T. MEIKLEJOHN MISC. CASE NO. CV 07 80226 JF (RS)

Case 5:07-mc-80226-JF

Document 2

Filed 09/24/2007

Page 5 of 5

1 2 3 4 5 6

I declare under penalty of perjury that the foregoing is true and correct. Signed at Colorado Springs, Colorado this _____ day of September, 2007.

/S/ Paul T. Meiklejohn
U

Attorney Signature Attestation
U

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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
U U

Declaration of Paul T. Meiklejohn ­ Page 4

DECLARATION OF PAUL T. MEIKLEJOHN MISC. CASE NO. CV 07 80226 JF (RS)