Phoenix Technologies Ltd. v. VMware, Inc.

Northern District of California, cand-4:2015-cv-01414

ORDER by Judge Haywood S. Gilliam, Jr. Granting {{88}} Stipulation to Modify Expert Report Deadlines.

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1 MICHAEL A. JACOBS (CA SBN 111664) MJacobs@mofo.com 2 ARTURO J. GONZÁLEZ (CA SBN 121490) AGonzalez@mofo.com 3 ALEXANDRIA A. AMEZCUA (CA SBN 247507) AAmezcua@mofo.com 4 MORRISON & FOERSTER LLP 425 Market Street 5 San Francisco, CA 94105-2482 Telephone: 415.268.7000 6 Facsimile: 415.268.7522 7 Attorneys for Defendant VMWARE, INC. 8 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 SAN FRANCISCO DIVISION 12 13 PHOENIX TECHNOLOGIES LTD., a Case No. 15-cv-01414-HSG Delaware corporation 14 Plaintiff, 15 STIPULATION TO MODIFY EXPERT v. REPORT DEADLINES AND ORDER 16 VMWARE, INC., a Delaware Corporation [CIVIL L.R. 6-2] 17 Defendant. DEMAND FOR JURY TRIAL 18 Trial Date: November 28, 2016 19 20 21 VMWARE, INC., a Delaware Corporation, 22 Counterclaimant, 23 v. 24 PHOENIX TECHNOLOGIES LTD. a Delaware Corporation, 25 Counterdefendant. 26 27 28 STIPULATION AND [PROPOSED] ORDER RE EXPERT REPORTS CASE NO. 3:15-cv-01414-HSG sf-3636453 1 STIPULATION 2 Pursuant to Civil Local Rule 6-2, Phoenix Technologies Ltd. ("Plaintiff") and Defendant 3 VMware, Inc. ("Defendant") (collectively, the "Parties") file this joint stipulation requesting that 4 the Court issue an order modifying certain deadlines in order to streamline expert discovery 5 relating to damages in this case. The parties accordingly stipulate as follows: 6 WHEREAS, the Court's case management schedule requires opening expert disclosures 7 by May 6, 2016 and rebuttal expert disclosures by May 27, 2016; 8 WHEREAS, to allow the completion of fact discovery in this matter, the Parties believe a 9 slight extension to the schedule for expert reports would be beneficial; 10 WHEREAS, the remedy of infringer's profits includes issues on which Phoenix and 11 VMware, respectively, bear the burden of proof; 12 WHEREAS, the Parties wish to streamline the presentation of expert reports; 13 WHEREAS, the Parties agree that both VMware and Phoenix shall serve opening 14 technical reports on the Opening Expert Disclosure date, and then a set of rebuttal technical 15 reports, if appropriate, on the Rebuttal Expert Disclosure date; 16 WHEREAS, the Parties agree that Phoenix shall serve an opening expert report on all 17 damages issues for which it bears the burden of proof on the Opening Expert Disclosure date, 18 VMware shall serve a single expert report rebutting Phoenix's damages report and offering 19 opinions and analysis regarding damages issues for which VMware bears the burden of proof on 20 the Rebuttal Expert Disclosure date, and Phoenix shall serve a reply report rebutting VMware's 21 damages report on the Reply Expert Disclosure date, 22 NOW, THEREFORE, the Parties hereby stipulate and agree to the following deadlines for 23 expert reports: 24 Prior Deadline New Deadline 25 Opening Expert Disclosures. May 6, 2016 May 13, 2016 For Phoenix: Phoenix's opening damages 26 report from Mr. Lynde, and technical expert reports from Mr. Zeidman and Mr. Polish. 27 For VMware: VMware's technical expert reports from Mr. Cullimore and Mr. Mowry. 28 STIPULATION AND [PROPOSED] ORDER RE EXPERT REPORTS CASE NO. 3:15-cv-01414-HSG 1 sf-3636453 1 Prior Deadline New Deadline Rebuttal Expert Disclosures. For Phoenix: May 27, 2016 June 10, 2016 2 rebuttal technical expert reports from Mr. Zeidman and Mr. Polish. For VMware: 3 damages expert report rebutting Mr. Lynde and on issues for which it bears the burden of 4 proof (i.e., for the remedy of infringer's profits, deductible expenses and the portion 5 of profit attributable to the copyrighted work) from Ms. Davis and rebuttal technical 6 expert reports from Mr. Cullimore and Mr. Mowry. 7 Phoenix's Reply Damages Expert Report -- June 27, 2016 from Mr. Lynde rebutting VMware's 8 damages expert report. Expert Discovery Cutoff June 24, 2016 July 8, 2016 9 Last Day to File Motion to Compel Expert July 1, 2016 July 15, 2016 Discovery 10 The parties have also mutually agreed to withdraw certain 30(b)(6) deposition topics. To 11 the extent an expert relies upon information obtained from an employee who has not already been 12 deposed in rendering their opinions that would have been the subject of one of the withdrawn 13 30(b)(6) topics, the opposing party may have the opportunity to depose that employee, 14 notwithstanding the fact discovery cut-off of April 29, 2016. Any such deposition would be 15 limited solely to the information provided by the employee that the expert relied upon. Should a 16 party request an additional fact witness deposition pursuant to this provision, the notice must be 17 served no later than five days after service of the expert report that relies upon the employee 18 information, or if it is not clear from the report, within five days of the deposition of that expert. 19 The Parties submit that the schedule modification proposed above would not change any 20 other deadlines in this case or for the Court. 21 // 22 // 23 24 25 26 27 28 STIPULATION AND [PROPOSED] ORDER RE EXPERT REPORTS CASE NO. 3:15-cv-01414-HSG 2 sf-3636453 1 Dated: April 8, 2016 COOLEY LLP 2 3 4 /s/ Whitty Somvichian Whitty Somvichian 5 Attorneys for Plaintiff PHOENIX TECHNOLOGIES LTD. 6 Dated: April 8, 2016 MORRISON & FOERSTER LLP 7 8 9 /s/ Arturo J. González1 Arturo J. González 10 Attorneys for Defendant VMWARE, INC. 11 12 PURSUANT TO THE PARTIES' STIPULATION, IT IS SO ORDERED. 13 14 Dated: 4/11/2016 By: 15 _______________________ HAYWOOD S. GILLIAM, JR. 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 1 I, Arturo J. González, am the ECF User whose ID and password are being used to file 27 this Declaration. In compliance with Civil L.R. 5-1(i)(3) I hereby attest that Whitty Somvichian has concurred in this filing. 28 STIPULATION AND [PROPOSED] ORDER RE EXPERT REPORTS CASE NO. 3:15-cv-01414-HSG 3 sf-3636453