Ixi Mobile (R&D) Ltd. et al v. Apple, Inc.

Northern District of California, cand-4:2015-cv-03755

LETTER addressed to Judge Richard J. Sullivan from Thomas S. Biemer, Esquire dated November 10, 2014 re: Response to Letter Dated November 7, 2014 from Defendant Apple, Inc. Document filed by IXI IP,LLC, IXI Mobile (R&D) Ltd.

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DIRECT DIAL NUMBER: Thomas S. Biemer (215) 575-7025 tbiemer@dilworthlaw.com November 10, 2014 Honorable Richard J. Sullivan Courtroom: 905 Thurgood Marshall United States Courthouse 40 Foley Square New York, NY 10007 IXI Mobile (R&D), Ltd., et al. v. Samsung Electronics Co., et al., No. 14-cv-4355 Re: IXI Mobile (R&D), Ltd., et al. v. Blackberry, Ltd., et al., No. 14-cv-4428 IXI Mobile (R&D) Ltd. et al. v. Apple Inc., No. 14-cv-7954 Dear Judge Sullivan: We represent Plaintiffs IXI Mobile (R&D), Ltd. and IXI IP, LLC ("IXI") in the above matters and respond to the letter dated November 7, 2014 from Defendant Apple, Inc. ("Apple"). Since IXI, Samsung and Blackberry were before Your Honor on October 7, 2014, IXI has made substantial efforts to accommodate scheduling concerns raised by Apple. Apple has refused to compromise at all, or to join the parties' joint submission, and has now proposed a schedule that would unreasonably delay this case. IXI agrees with Apple that, for purposes of efficiency, it is reasonable that these cases proceed on a single pretrial schedule. Apple's contention, however, that IXI was "unwilling to compromise" on the case timelines is not accurate. To the contrary, IXI essentially agreed to adjust most of the key timeframes as proposed by Apple. Apple, on the other hand, was completely unwilling to budge from the dates in its initial proposal. 1500 Market Street · Suite 3500E · Philadelphia, PA 19102-2101 · 215-575-7000 · fax 215-575-7200 Cherry Hill NJ · Harrisburg, PA · Red Bank. NJ · Washington, DC · Wilmington, DE · New York, NY Honorable Richard J. Sullivan November 10, 2014 Page 2 By way of background, IXI commenced the Samsung and Blackberry actions in June, 2014. The Samsung and Blackberry cases both involved foreign service issues which factored into extending the time for those Defendants to respond to the Complaints and scheduling the filing of joint submissions and the Initial Conference until the late September/early October, 2014 time frame. When outside counsel for Samsung and Blackberry appeared in September, 2014, Samsung and Blackberry conducted several meet and confers on the proposed discovery plan and exchanged Initial Disclosures by October 7, 2014.1 IXI commenced the Apple action in early October, 2014 and immediately served Apple (no foreign service issues existed in the Apple case). At the October 7, 2014 Initial Conference, IXI advised the Court of this development and the Court and parties discussed the concept of generally extending the case deadlines by 30 days to accommodate Apple. IXI, Samsung and Blackberry also agreed to confer with Apple once counsel entered to develop a revised set of deadlines applicable to the three actions and submit those revisions by November 7, 2014. IXI, thereafter, consented to Apple's request to extend its time to respond to the Complaint until November 24, 2014. In Apple's extension request, Apple agreed to confer with IXI, Samsung and Blackberry with respect to the required November 7, 2014 filings. Several meet and confers subsequently took place between IXI, Samsung, Blackberry and Apple during which the parties discussed adjustments to the previous pretrial submissions. During those various meet and confers, Apple advised that its position was that all the deadlines previously agreed to by IXI, Samsung and Blackberry should be extended approximately 90 days to reflect the fact that Apple was sued in October, 2014 (as opposed to June, 2014 for Samsung and 1 IXI provided initial extensions based upon requests by in-house counsel for Samsung and Blackberry. IXI's understanding is that outside counsel was not retained until September, 2014. 1500 Market Street · Suite 3500E · Philadelphia, PA 19102-2101 · 215-575-7000 · fax 215-575-7200 Cherry Hill NJ · Harrisburg, PA · Red Bank. NJ · Washington, DC · Wilmington, DE · New York, NY Honorable Richard J. Sullivan November 10, 2014 Page 3 Blackberry). Moreover, despite the fact that it participated in numerous meet and confers, Apple took the position that Apple's Initial Disclosures should not be required until January, 2015 and that discovery could not commence prior to that date. Apple's position is inconsistent with Federal Rules 26(a)(C) and 26(d)(1) which provide that Initial Disclosures and discovery can commence after the parties' meet and confer. There is no justification for Apple's proposal to adjust deadlines 90 days across the board that would substantially extend the timeframes contemplated by the Federal and the Local Patent Rules. Still, in order to accommodate Apple, IXI largely agreed with the 90 day proposal. For instance, IXI agreed to Apple's proposed deadlines to serve initial written discovery requests (and advised that it had no problem if Apple wanted more time to serve Initial Disclosures). IXI also agreed with Apple's proposal to adjust the fact discovery deadline from August 10, 2015 to November 10, 2015. IXI further repeatedly advised Apple that it was always willing to provide reasonable extensions to written discovery responses to the extent Apple believed it needed more time. IXI also agreed to significantly adjust the time for all Defendants to respond to IXI's Infringement Contentions. On this point, IXI agreed to these significant adjustments despite the fact that Local Patent Rules 6 and 7 provide for shorter deadlines. IXI, however, did not believe that that extending the time frames for completion of the claim construction process as proposed by Apple was reasonable. While IXI advised that it was certainly willing to discuss a reasonable adjustment to the original deadlines, Apple refused to move at all from its general, across-the- board demand that all deadlines be adjusted by approximately 90 days. Moving the time frames for completion of the claim construction process as proposed by Apple is simply not reasonable 1500 Market Street · Suite 3500E · Philadelphia, PA 19102-2101 · 215-575-7000 · fax 215-575-7200 Cherry Hill NJ · Harrisburg, PA · Red Bank. NJ · Washington, DC · Wilmington, DE · New York, NY Honorable Richard J. Sullivan November 10, 2014 Page 4 in IXI's view. Ultimately, Apple refused to join in the adjusted joint submissions filed by IXI, Samsung and Blackberry on November 7, 2014 and, instead, submitted the above-referenced letter.2 We are available at Your Honor's convenience to discuss further at a further Initial Conference or otherwise at the Court's convenience. Respectfully, s/Thomas S. Biemer Thomas S. Biemer TSB:km cc: All parties of record via ECF 2 Apple asserts that it is contemplating a motion to transfer venue while at the same time claiming that the schedule it is proposing in this matter would result in a trial "quicker" than the national average. 1500 Market Street · Suite 3500E · Philadelphia, PA 19102-2101 · 215-575-7000 · fax 215-575-7200 Cherry Hill NJ · Harrisburg, PA · Red Bank. NJ · Washington, DC · Wilmington, DE · New York, NY