The opinion of the court was delivered by: Ruben B. Brooks United States Magistrate Judge
ORDER DENYING EX PARTE APPLICATION TO REVISE CERTAIN DATES IN THE SCHEDULING ORDER [ECF NO. 70]
On November 29, 2012, Defendant and Counterclaimant, Linvatec Corporation, filed an Ex Parte Application to Revise Certain Dates in the Scheduling Order [ECF No. 70]. Linvatec requests that the Court extend (1) the discovery cutoff from January 7, 2013, to March 1, 2013; (2) the deadline to serve written discovery from November 5, 2012, to January 11, 2013; (3) the deadline for filing motions from January 28, 2013, to April 1, 2013; (4) initial expert designations from November 5, 2012, to December 14, 2012; (5) the next expert designation from December 3, 2012, to January 18, 2013; (6) the supplemental expert designation deadline from December 17, 2012, to February 1, 2013; and (7) continue the settlement conference scheduled for December 3, 2012, to April 1, 2013. (Ex Parte Appl. Revise 1, ECF No. 70.)
The next day, November 30, 2012, Plaintiff and Counterclaim Defendant, Alvarado Orthopedic Research, L.P., filed its Opposition to the Ex Parte Application. (Pl. Alvarado Orthopedic Resarch, L.P.'s Opp'n Ex-Parte Appl., ECF No. 71.) On the same date, the Court denied Linvatec's request to continue the December 3, 2012 settlement conference and indicated that the remaining items addressed in the Ex Parte Application would be considered in a subsequent order. (Mins., Nov. 30, 2012, ECF No. 72.)
The Court held the scheduled settlement conference on December 3, 2012, and issued an order allowing Alvarado to file a supplemental opposition to Linvatec's Ex Parte Application by December 10, 2012; Linvatec was authorized to file a reply memorandum by the same date. On December 10, 2012, Linvatec filed a Reply in support of its Ex Parte Application [ECF No. 79]. Alvarado filed the Declaration of A. Kipp Williams in Response on December 11, 2012 [ECF No. 81].
THE SHOWING NEEDED TO MODIFY THE CASE MANAGEMENT ORDER
A. The Parties' Positions
Linvatec has new counsel. It's new lawyers substituted into this case on October 26, 2012. (Ex Parte Appl. Revise 1, ECF No. 70.) They seek to extend dates "so that new counsel can assess the facts and legal issues of the case, and prepare the case for settlement or trial." (Id.)
In Alvarado's Opposition to the Ex Parte Application, it argues that new counsel for Linvatec came into the case on October 25, 2012, knowing that a scheduling order was in place. (Pl. Alvarado Orthopedic Research, L.P.'s Opp'n to Ex-Parte Appl. 3, ECF No. 71.) Alvarado observes that "several key dates have already come and gone. For example, the deadline to serve written discovery was November 5, 2012, and the initial expert designation was November 5, 2012." (Id.)
In its Reply, Linvatec supplements its earlier showing by adding that an extension of pretrial dates is needed to "finish up remaining discovery, some of which has been delayed by Plaintiff's refusal to enter into a Protective Order." (Reply Further Supp. Linvatec Corp.'s Ex Parte Appl. 1, ECF No. 79.) The Defendant states that the "Plaintiff's refusal to agree to a Protective Order has stalled document production, and thus completion of discovery." (Id. at 3.) It was required to file a motion to compel discovery, and Linvatec repeats that it has new counsel. (Id.)
Counsel for Alvarado responded to Linvatec's assertions as follows:
After being in this case for almost two years, Linvatec proposes to extend the expert witness dates so it can designate two experts: the first to provide testimony for the trier of fact on how the patent law process works, including for the payment of maintenance fees; and second, a technical expert to provide testimony on the blades and blade technology at issue.
. . . Linvatec has offered no showing of good cause as to why it did not participate in the first expert exchange on November 5, 2012. Linvatec has offered no viable explanation as [to] why its former patent lawyers did not determine that patent experts were needed at trial.
(Decl. A. Kipp Williams Resp. 2, ECF No. 81.) Alvarado maintains that the motion to compel brought by Linvatec dealt with deposition topics that have little to do with the proposed expert designations. (Id.) Also, Linvatec raised the need for a protective order "over a year ago." (Id. at 3.) ...