May 21, 2013
NUANCE COMMUNICATIONS, INC., Plaintiff,
ABBYY USA SOFTWARE HOUSE, INC., a REPORTS California corporation, ABBYY SOFTWARE, LTD., a Cyprus corporation, ABBYY PRODUCTION, LLC, a Russian corporation, and LEXMARK INTERNATIONAL, INC., a Delaware corporation, Defendants.
JAMES C. YOON, (CA SBN 177155), CHRISTOPHER P. GREWE, (CA SBN 245938), WILSON SONSINI GOODRICH & ROSATI, Professional Corporation Palo Alto, California, Attorneys for Plaintiff NUANCE COMMUNICATIONS, INC.
JAMES P. BENNETT (CA SBN 65179) MICHAEL A. JACOBS (CA SBN 11664) BROOKS M. BEARD (CA SBN 181271) RICHARD S.J. HUNG (CA SBN 197425) MORRISON & FOERSTER LLP San Francisco, California.
Erik R. Puknys, GARRETT & DUNNER, LLP, Attorneys for Defendants, ABBYY USA SOFTWARE HOUSE, INC., ABBYY SOFTWARE, LTD., ABBYY PRODUCTION, LLC, and LEXMARK INTERNATIONAL, INC.
STIPULATION AND [PROPOSED] ORDER REGARDING SUPPLEMENTAL TRADE DRESS EXPERT
JEFREY S. WHITE, District Judge.
Pursuant to Civil L.R. 6-2, Plaintiff Nuance Communications, Inc. ("Nuance"), and Defendants ABBYY Software House, Inc., ABBYY Software, Ltd., ABBYY Production, LLC (collectively, "ABBYY Defendants"), and Lexmark International, Inc. ("Lexmark"), file this joint stipulation regarding supplemental trade dress expert reports.
WHEREAS, Nuance moved for discovery sanctions against the ABBYY Defendants for late production of documents in August 2012 (Dkt. No. 499);
WHEREAS, Magistrate Judge James issued an order relating to Nuance's request for sanctions (Dkt. No. 571);
WHEREAS, in January 2013, the Court granted Nuance "an extension of eight weeks for discovery limited to the discrete issues relating to the ABBYY Defendants' later production and require[d] the ABBYY Defendants to timely re-produce relevant witnesses[, ]" (Dkt. No. 582);
WHEREAS, after completing the additional depositions, Nuance's trade dress expert, Dr. Frazier, prepared a supplemental expert report, a copy of which was provided to Defendants on April 15, 2013;
WHEREAS, the parties had numerous meet and confer discussions, including one in person meeting, to discuss whether Defendants would agree to permit Dr. Frazier's supplemental report to be added to the case, set a due date for a supplemental rebuttal report from Dr. Simonson (one of Defendants' trade dress experts), and identify dates for potential follow-up depositions;
WHEREAS, the parties reached agreement on these issues during the meet and confer process;
WHEREAS, the Court's April 2, 2013 Order Setting Schedule (Dkt. No. 649) set the Pretrial Conference for July 22, 2013, at 2:00 p.m., Jury Selection for August 7, 2013, at 8:00 a.m., and Trial for August 12, 2013, at 8:00 a.m;
WHEREAS, the agreements set forth in this stipulation, if adopted by the Court via an order, will have no effect on the remaining schedule for the case.
NOW, THEREFORE, IT IS HEREBY STIPULATED and agreed to by and between the parties, through their respective counsel, as follows:
§ Dr. Frazier's supplemental expert report is deemed timely disclosed pursuant to Rule 26 without requiring a motion for leave, but without prejudice to the ABBYY Defendants' ability to seek to strike the report, in whole or in part, on grounds other than timeliness;
§ Dr. Simonson's supplemental rebuttal expert report will be provided to Nuance on May 20, 2013;
§ if Defendants so request, Dr. Simonson will have up to one additional week to provide Nuance with his supplemental rebuttal expert report (by no later than Monday, May 27, 2013);
§ if Dr. Simonson's supplemental rebuttal expert report is timely provided to Nuance, it will be deemed timely disclosed pursuant to Rule 26 without requiring a motion for leave, but without prejudice to Nuance's ability to seek to strike the report, in whole or in part, on grounds other than timeliness;
§ if Defendants decide to conduct a follow-up deposition of Dr. Frazier, it will take place in Los Angeles on a date to be determined by the parties, will proceed for no more than two hours on-the-record, and questioning will be limited to the subject matter of Dr. Frazier's supplemental expert report; and
§ if Nuance decides to conduct a follow-up deposition of Dr. Simonson, it will take place in New York on June 3, 2013, starting at 9:30 am, will proceed for no more than two hours on-the-record, and questioning will be limited to the subject matter of Dr. Simonson's supplemental expert report
IT IS SO STIPULATED.
ORDER Pursuant to stipulation,
IT IS SO ORDERED.