Free Motion for Extension of Time - District Court of Arizona - Arizona

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David P. Irmscher (Indiana State Bar No. 15026-02) John K. Henning (Indiana State Bar No. 25203-49) Baker & Daniels LLP 111 East Wayne Street, Suite 800 Fort Wayne, IN 46802 Telephone: 260-424-8000 Facsimile: 260-460-1700 Ray Harris (Arizona State Bar No. 007408) Paul Moore (Arizona State Bar No. 019912) Fennemore Craig 3003 North Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Telephone: 602-916-5000 Facsimile: 602-916-5999 Attorneys for the defendant, Omron Corporation UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Hypercom Corporation, CAUSE NO. CV04-0400 PHX PGR OMRON CORPORATION' OPPOSED S MOTION FOR LIMITED EXTENSION OF DISCOVERY DEADLINE TO CONDUCT NON-EXPERT DEPOSITIONS (FIRST REQUEST)

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Plaintiff,
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vs.
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Omron Corporation,
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Defendant
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FENNEMORE CRAIG, P.C.
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Pursuant to Local Rule 7.3 of the District Court of Arizona, the defendant, Omron Corporation ("Omron"), moves for a 15-day extension of time ­ to and including June 30, 2006 ­ for the sole and limited purpose of deposing certain non-expert witnesses of the plaintiff, Hypercom Corporation ("Hypercom"). The current discovery deadline is June 15, 2006. However, due to scheduling conflicts and Hypercom' failure to provide a s single date before the discovery deadline that its witnesses were available for depositions, Omron requires an extension of time to depose a Rule 30(b)(6) Hypercom representative and four other employees or former employees of Hypercom, all of which have been noticed for June 28-30, 2006. This requested extension of time will not affect any other

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deadlines in the Court' November 21, 2005, Scheduling Order, and will not prejudice s either party. This motion is made for good cause based on the following grounds: 1. The Court entered the Scheduling Order in this case on November 21, 2005.

Under the Scheduling Order, Omron and Hypercom were to complete all expert witness depositions by May 15, 2006, and all other discovery on or before June 15, 2006. 2. In early May 2006, counsel for Omron and Hypercom began discussing by

telephone and e-mail mutually convenient dates for the depositions of expert and nonexpert witnesses for Omron and Hypercom. See Affidavit of John K. Henning ("Henning Affidavit"), attached to this Motion, at ¶ 4. 3. On May 3, 2006, counsel for Omron and Hypercom conferred by telephone

to discuss dates that the parties were available to take expert and non-expert depositions. Henning Affidavit at ¶ 5. 4. During the May 3 conference call, Omron' counsel requested dates in May s

and June that Hypercom' counsel was available for the depositions of expert witnesses s for Hypercom and Omron, as well as dates that Hypercom' counsel was available for s other non-expert depositions that Hypercom wanted to notice. Id. at ¶ 6. 5. Omron' counsel further advised that Omron wanted to depose several nons

expert witnesses from Hypercom, which Omron would identify in future correspondence. Id. at ¶ 7. 6. Because of the pending May 15, 2006, deadline for deposing expert

witnesses and the usual difficulties in finding dates that the experts and the parties would be available for depositions, counsel for Hypercom and Omron also agreed to find mutually agreeable dates for the depositions of the expert witnesses, and then move the Court for an enlargement of time to depose the experts based on the agreed upon schedule. Henning Affidavit at ¶ 8. 7. On May 5, 2006, at Omron' request, Hypercom' counsel provided dates s s

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that they were available for the depositions of expert witnesses and the other depositions that Hypercom wanted to notice. Specifically, Hypercom' counsel stated that they were s available for (1) the deposition of Laurence Pretty, Hypercom' expert witness, on May s 23 and June 2, 9, 12-17, and 25-30, 2006, and (2) the depositions of Omron' experts s (Charles Berman and Brad Gulko), Bryan Farney, Christopher Walton, and Thomas Anderson on May 18 and June 18-24, 2006. Id. at ¶ 9. 8. On May 8, 2006, Omron' counsel responded by e-mail with available dates s

for all of the depositions listed in paragraph 7 above. Id. at ¶ 10. 9. Moreover, in its May 8 e-mail, Omron' counsel also informed Hypercom' s s

counsel that Omron wanted to depose the following Hypercom witnesses: Jonatan Schmidt, William Dowlin, Chris Alexander, George Wallner, and a Rule 30(b)(6) Hypercom representative with knowledge of technical issues relating to Hypercom' s products accused of infringement (collectively, "the Hypercom Witnesses"). Id. at ¶ 11. 10. William Dowlin, Chris Alexander, and George Wallner are listed by

Hypercom in their Rule 26(a)(1) Initial Disclosure Statement as "Individuals Likely To Have Discoverable Information." See Hypercom Corporation' Rule 26(a)(1) Initial s Disclosure Statement at 2-3. 11. Jonatan Schmidt is Hypercom' Chief Scientist and Technology Officer. s

See Henning Affidavit at ¶ 12. 12. In the same May 8 e-mail, Omron' counsel provided multiple dates in May s

and June that they were available to depose the Hypercom Witnesses. Omron also made its first request for Hypercom to respond with mutually agreeable dates for these depositions. Id. at ¶ 13. 13. Hypercom' counsel responded by e-mail on May 8, 2006, and stated that s

she would "get back to [Omron] on the other dates [for the Hypercom Witnesses]." Id. at ¶ 14.
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14.

Despite several follow-up communications and requests, counsel for

Hypercom failed to respond with a single available date for the depositions of the Hypercom Witnesses. Id. at ¶ 15. 15. On May 10, 2006, Omron' counsel asked Hypercom' counsel a second s s

time whether the Hypercom Witnesses were available on the dates proposed by Omron in its May 8, 2006, e-mail. Id. at ¶ 16. 16. 17. Again, Hypercom' counsel failed to respond with any dates. Id. at ¶ 17. s On May 17 and 18, 2006, Omron' counsel made its third and fourth written s

requests for deposition dates for the Hypercom Witnesses. Id. at ¶ 18. 18. On May 18, 2006, Hypercom' counsel requested from Omron additional s

information regarding the topics on which Omron wanted testimony from a Hypercom corporate representative under Rule 30(b)(6). However, Hypercom' counsel failed to s provide any available dates for the Rule 30(b)(6) deponent or any of the other Hypercom Witnesses. Id. at ¶ 19. 19. On or about May 19, 2006, the parties agreed on dates for the depositions of

the expert witnesses. On May 22, 2006, the parties filed a Joint Motion For (Second) Extension Of Time In Which To Complete Expert Witness Depositions, which the Court granted on May 23, 2006. Under this Order, and based on the agreement between Hypercom and Omron, the parties were granted an extension to June 21, 2006, to finish the depositions of the expert witnesses. Id. at ¶ 20. 20. Finding mutually convenient dates for depositions of the Hypercom

Witnesses that Omron wanted to depose was a different story. Despite four written requests for dates that the Hypercom Witnesses were available for depositions, Hypercom' counsel had failed to respond with a single date. s 21. Thus, having received no responses from Hypercom' counsel with s

available dates, Omron noticed the Hypercom Witnesses for depositions as follows:
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a. b. c. d. e. Id. at ¶ 21. 22.

Rule 30(b)(6) Deposition of Hypercom, June 28, 2006, at 9:00 a.m.; George Wallner, June 29, 2006, at 9:00 a.m.; Chris Alexander, June 29, 2006, at 1:00 p.m.; William Dowlin, June 30, 2006, at 9:00 a.m.; and, Jonatan Schmidt, June 30, 2006, at 1:00 p.m.

Omron provided a cover letter with the deposition notices providing that

Omron would consider alternative mutually convenient dates for the depositions of the Hypercom Witnesses, but that Omron noticed the depositions unilaterally after Hypercom' counsel failed to provide any available dates. Id. at ¶ 22. s 23. Omron noticed the depositions after the discovery cutoff of June 15, 2006,

for several reasons. First, lead counsel for Omron, David Irmscher, was not available to take the depositions during the first two weeks of June due to other work commitments. Second, co-counsel for Omron, John Henning, was anticipating the birth of his first child during the last week of May and, therefore, was unavailable to travel during the first two weeks of June. Third, Hypercom' expert witness' deposition was already scheduled for s s June 13, 2006. Finally, counsel for Omron and Hypercom had effectively collaborated to schedule the depositions of the expert witnesses after the deadline for completing expert depositions by filing a joint motion for an extension of time. See supra, ¶ 19. Due to this cooperation between counsel and Hypercom' subsequent refusal to provide any dates s prior to the discovery cutoff, Omron' counsel anticipated reaching a similar agreement s with Hypercom Corporation as to the Hypercom Witnesses' depositions after the June 15 discovery cutoff. Henning Affidavit at ¶ 23. 24. Counsel for Hypercom initially did not object to the depositions of the

Hypercom Witnesses moving forward on June 28-30, 2006. Indeed, Hypercom offered to stipulate to the extension of the discovery deadline to permit Omron an opportunity to
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depose the Hypercom Witnesses. 25. On June 5, 2006, almost two weeks after receiving deposition notices for the

Hypercom Witnesses and just 10 days before the discovery deadline, counsel for Hypercom suggested that the parties move the Court to extend the discovery cutoff to allow (1) Omron to depose the Hypercom Witnesses and (2) Hypercom to depose three other witnesses ­ Bryan Farney, Thomas Anderson, and a Rule 30(b)(6) Omron witness. Id. at ¶ 24. 26. By the end of the week, however, and just six days before the discovery

cutoff, Hypercom changed course regarding the Hypercom Witnesses. On Friday, June 9, 2006, counsel for Hypercom and Omron conferred by telephone regarding an extension of the discovery cutoff to take certain remaining depositions. Hypercom' counsel informed s Omron' counsel that Hypercom would not agree to extend the discovery cutoff so Omron s could depose the Hypercom Witnesses, and that with the current discovery cutoff of June 15, 2006, Hypercom had decided not to seek any other depositions after the discovery cutoff. Id. at ¶ 25. 27. Counsel for Omron further stated that Omron would move for an extension

of the discovery deadline for the sole purpose of deposing the Hypercom Witnesses on June 28-30, 2006. Despite their earlier willingness to accommodate Omron and schedule non-expert witness depositions after the June 15 discovery deadline, counsel for Hypercom informed Omron' counsel that Hypercom would object to this Motion. Id. at s ¶ 26. 28. Prior to June 9, 2006, Hypercom had not objected to the depositions of the

Hypercom Witnesses. As a result of the late objections, Omron' counsel had no s opportunity to reschedule the depositions before the June 15, 2006, discovery cutoff and find an attorney at Baker & Daniels LLP who could cover the depositions on Omron' s behalf. Id. at ¶ 27.
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29.

This type of discovery dispute, and the requested extension of time for the

purpose of taking limited depositions, is commonly an issue that is resolved by agreement between the parties, who can then move the court for additional time to complete discovery. However, Hypercom has refused to communicate the availability of its counsel or witnesses for depositions, and now seeks to avoid those depositions despite having notice for more than a month that Omron sought to depose the Hypercom Witnesses. 30. Omron requests the Court to grant Omron an extension of the discovery

deadline ­ to and including June 30, 2006 ­ for the limited purpose of deposing the Hypercom Witnesses. 31. This extension will not affect any other deadlines in the case. The

dispositive motion deadline is July 15, 2006, which would provide sufficient time for the parties to depose the witnesses and obtain transcripts. Moreover, Omron does not anticipate that the depositions of the Hypercom Witnesses are necessary to prepare or defend against dispositive motions, but the depositions are necessary to allow Omron to prepare for trial. Wherefore, Omron respectfully requests the Court to grant Omron an extension of time ­ to and including June 30, 2006 ­ for the sole purpose of deposing the Hypercom Witnesses on June 28, 29, and 30, 2006. DATED this 15th day of June, 2006. FENNEMORE CRAIG, P.C. By: s/Ray K. Harris Ray Harris Paul Moore BAKER & DANIELS LLC David P. Irmscher John K. Henning Attorneys for Defendant Omron Corporation
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CERTIFICATE OF SERVICE I hereby certify that on June 15, 2006, I electronically transmitted the attached documents to the Clerk' Office using the CM/ECF System for filing and transmittal of a s Notice of Electronic Filing to the following CM/ECF registrants: Sid Leach Andrew F. Halaby Monica A. Limon-Wynn SNELL & WILMER L.L.P. One Arizona Center 400 East Van Buren Phoenix, AZ 85004-2202 _s/Melody Tolliver_________________

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FENNEMORE CRAIG, P.C.
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