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

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FENNEMORE CRAIG, P.C.
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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, Plaintiff, vs. Omron Corporation, Defendant Pursuant to Local Rule 7.3 of the District Court of Arizona, the defendant, Omron Corporation ("Omron"), moves for (1) a second two-week extension of time ­ to and including May 1, 2006 ­ to disclose expert witnesses and serve expert witness reports under Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, and (2) a two-week extension of time (Omron' first request) ­ to and including May 22, 2006 ­ for Omron s and Hypercom to complete expert witness depositions. Regarding the second request for additional time to disclose its expert witnesses, Omron further requests that if the Court grants this motion, the Court should grant the two-week extension of time to both Omron and Hypercom. This motion is made for good cause and not for delay. Omron' expert s witnesses require additional time to review their materials and prepare their written
PHX/RHARRIS/1783963.1/12623.001

CAUSE NO. CV04-0400 PHX PGR MOTION FOR SECOND EXTENSION OF TIME TO DISCLOSE AND SERVE EXPERT WITNESS REPORTS AND FIRST EXTENSION OF TIME TO COMPLETE EXPERT WITNESS DEPOSITIONS

Case 2:04-cv-00400-PGR

Document 107

Filed 04/12/2006

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reports. Moreover, neither of the requested two-week extensions of time will affect the deadlines in the Scheduling Order for the discovery cutoff, additional dispositive motions, and trial. The Court entered the Scheduling Order in this case on November 21, 2005. Under the Scheduling Order, Omron and the plaintiff, Hypercom Corporation ("Hypercom"), were to disclose their respective expert witnesses, and serve reports in compliance with Rule 26(a)(2)(B), no later than April 1, 2006. The parties also were to complete expert witness depositions on or before May 8, 2006. On March 28, 2006, Omron filed its Unopposed Motion For Extension Of Time To Disclose And Serve Expert Witness Reports, requesting the Court to extend the deadline for Omron' expert witness disclosures to April 17, 2006. The Court granted this motion s on March 29, 2006. Hypercom subsequently filed its own unopposed motion for an extension of time to disclose its expert witness reports. See Hypercom Corporation' s (Unopposed) Motion To Withhold Service Of Its Expert Witness Report Until Simultaneous Exchange Of Expert Reports With Omron On April 17, 2006, filed April 3, 2006. The Court granted Hypercom' unopposed motion on April 4, 2006. s Omron plans to disclose two expert witnesses and their reports, and each expert will testify on distinct issues in the case. However, the experts require additional time to complete their respective reviews of the relevant documents and prepare their written reports. This additional time is required for a combination of two reasons: (1) the expert witnesses' schedules and workloads present a conflict with the April 17, 2006, deadline (one of the experts is unavailable to work on his report because of the religious holidays); and (2) the voluminous records and complexity of the information that the experts must review to prepare their reports. Omron, therefore, requests an additional two weeks ­ or until May 1, 2006 ­ to prepare and disclose its two expert witnesses and their Rule 26(a)(B)(2) report. This
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request for additional time will not affect the current discovery or dispositive deadlines or the scheduled trial date. The only other date that Omron requests to be extended is the deadline for conducting expert witness depositions, which is currently scheduled for May 8, 2006. However, an additional two-week extension of time for this deadline ­ or until May 22, 2006 ­ will not affect any other deadlines in the Court' Scheduling Order. s Moreover, the extension of time for Omron to disclose its expert witnesses and for the conclusion of expert witness depositions will not prejudice Hypercom. The parties

realistically will need an extension of time to and including May 22, 2006, to schedule and depose all expert witnesses even if the Court denies this second request for an extension of time for Omron to disclose its expert witnesses and their reports. In addition, Omron is not requesting this extension to gain an unfair advantage over Hypercom by obtaining its expert witness disclosures and written reports before Omron discloses its own reports. Indeed, Omron proposes that the Court grant this motion as to both Hypercom and Omron. In other words, even though Hypercom opposes the second request for another two weeks for expert witness disclosures ­ Omron requests that the Court enter an order granting the extension of time as to both Omron and Hypercom. That way, if the Court grants Omron' motion, Hypercom will have the same extension of s time, will not need to file its own request for an extension of time, and can maintain its current opposition to this motion. See infra. Accordingly, Omron respectfully requests the Court to approve this Motion and allow Omron and Hypercom to have a second two-week extension of time ­ or until May 1, 2006 ­ to disclose its expert witnesses and serve their Rule 26(a)(B)(2) expert reports. As explained above, if the Court grants this motion, the Court should grant the motion as to both Hypercom and Omron as provided in the attached proposed order. In addition, and regardless of the Court' ruling on the second request for two more weeks to disclose s expert reports, Omron requests the Court to grant Omron' first request for Omron and s
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Hypercom to have an additional two weeks ­ or until May 22, 2006 ­ to complete expert witness depositions. Counsel for Omron contacted counsel for Hypercom and held the required conference regarding this Motion. Counsel for Hypercom objects to Omron' request for s a second two-week extension of time. However, counsel for Hypercom does not object to the requested extension of time to May 22, 2006, to complete expert witness depositions. RESPECTFULLY SUBMITTED this 12th day of April, 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 CERTIFICATE OF SERVICE I hereby certify that on April 12, 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: Michael K. Kelly Sid Leach SNELL & WILMER L.L.P. One Arizona Center 400 East Van Buren Phoenix, AZ 85004-2202 Peter Henry Schelstraete SCHELSTRAETE LAW OFFICE 1949 East Broadway, Suite 107 Tempe, AZ 85282-0001
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I hereby certify that on April 12, 2006, I served the attached document by mail on the following, who are not registered participants of the CM/ECF System: Christopher S. Walton Gregory S. Donahue SIMON GALASSO & FRANTZ PLC 6300 Bridgepoint Parkway, Bldg. One Suite 410A Austin, TX 78730

_s/Melody Tolliver_________________

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