Case 1:12-cv-00574-LPS Document 400 Filed 02/22/17 Page 1 of 4 PageID #: 13250
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 12-574-LPS
`(consolidated)
`
`)))))))))))))
`
`))))))))))
`
`ROBERT BOSCH LLC,
`
`Plaintiff,
`
`v.
`
`ALBEREE PRODUCTS, INC., API KOREA
`CO., LTD., SAVER AUTOMOTIVE PROD-
`UCTS, INC., and COSTCO WHOLESALE
`CORPORATION,
`
`Defendants.
`
`COSTCO WHOLESALE CORPORATION,
`
`Counter-Plaintiff,
`
`v.
`
`ROBERT BOSCH LLC and ROBERT
`BOSCH GMBH,
`
`Counter-Defendants.
`
`JOINT SUBMISSION REGARDING CASE SCHEDULE
`
`Pursuant to the Court’s January 24, 2017 Order (D.I. 396), the parties conferred on a
`
`proposed scheduling order but did not reach agreement. The parties competing proposals are set
`
`forth below.
`
`PLAINTIFF ROBERT BOSCH LLC (“RBLLC”) AND
`THIRD-PARTY DEFENDANT ROBERT BOSCH GMBH (“RBGMBH”) PROPOSAL:
`
`A.
`
`Schedule for discovery and further proceedings: RBLLC and RBGMBH propose
`
`that the stay of this litigation be continued and the deadline for the parties to submit a joint
`
`scheduling proposal be extended until May 3, 2017. Costco requested the Patent Office to review
`
`eight of the patents asserted in this case. The Office instituted six of the requested IPRs. The PTAB
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 12-574-LPS
`(consolidated)
`
`)))))))))))))
`
`))))))))))
`
`ROBERT BOSCH LLC,
`
`Plaintiff,
`
`v.
`
`ALBEREE PRODUCTS, INC., API KOREA
`CO., LTD., SAVER AUTOMOTIVE PROD-
`UCTS, INC., and COSTCO WHOLESALE
`CORPORATION,
`
`Defendants.
`
`COSTCO WHOLESALE CORPORATION,
`
`Counter-Plaintiff,
`
`v.
`
`ROBERT BOSCH LLC and ROBERT
`BOSCH GMBH,
`
`Counter-Defendants.
`
`JOINT SUBMISSION REGARDING CASE SCHEDULE
`
`Pursuant to the Court’s January 24, 2017 Order (D.I. 396), the parties conferred on a
`
`proposed scheduling order but did not reach agreement. The parties competing proposals are set
`
`forth below.
`
`PLAINTIFF ROBERT BOSCH LLC (“RBLLC”) AND
`THIRD-PARTY DEFENDANT ROBERT BOSCH GMBH (“RBGMBH”) PROPOSAL:
`
`A.
`
`Schedule for discovery and further proceedings: RBLLC and RBGMBH propose
`
`that the stay of this litigation be continued and the deadline for the parties to submit a joint
`
`scheduling proposal be extended until May 3, 2017. Costco requested the Patent Office to review
`
`eight of the patents asserted in this case. The Office instituted six of the requested IPRs. The PTAB
`
`
`
`Case 1:12-cv-00574-LPS Document 400 Filed 02/22/17 Page 2 of 4 PageID #: 13251
`
`trial in those six IPRs is completed, and the deadline for the PTAB to issue a final written decision
`
`in those IPRs is April 26, 2017.
`
`B.
`
`Briefing schedule for fees issues: For the reasons stated above, RBLLC and
`
`RBGMBH propose that Costco’s deadline for submitting its fee application either be set by the
`
`Court following the proposed May 3 scheduling submission, or that the deadline be set to May 3,
`
`2017. RBLLC and RBGMBH propose that briefs in opposition to Costco’s fee application be due
`
`not sooner than four weeks after Costco files its fee application.
`
`C.
`
`Discovery Limits and Deadlines: To the extent the Court is not inclined to continue
`
`the stay, RBLLC and RBGMBH agree with Defendants’ proposed deadlines for the close of fact
`
`discovery (June 3, 2018) and expert discovery (November 5, 2018). However, RBLLC and
`
`RBGMBH, oppose the remainder of Defendants’ proposed schedule and excessive discovery
`
`limits.
`
`DEFENDANTS’ POSITION:
`
`Pursuant to Paragraph 3 of the Court’s Order of January 24, 2017 (D.I. 396), Costco asks
`
`that the Court adopt the attached proposed Scheduling Order (Exhibit A). The other defendants
`
`join in this request and the below responses. To respond to the above points of Bosch, Costco
`
`submits:
`
`A.
`
`The new stay proposed by Bosch is inappropriate for several reasons. The IPR
`
`proceedings involve only a subset of the patents-in-suit and thus offer no prospect of resolving the
`
`entirety of this action. One of the patents-in-suit, U.S. Patent No. 6,836,926, is the subject of a
`
`fully briefed and argued motion for summary judgment of non-infringement as to which Costco
`
`believes the Court should now decide. Costco should not be required to wait months before
`
`applying for the compensation the Court has awarded for Bosch’s discovery failures. And
`
`proceeding with discovery of Robert Bosch GmbH should not be delayed in the circumstances.
`
`- 2 -
`
`
`
`Case 1:12-cv-00574-LPS Document 400 Filed 02/22/17 Page 3 of 4 PageID #: 13252
`
`B.
`
`Costco submits that briefing on the appropriate amount of attorneys’ fees to be paid
`
`by Bosch should proceed promptly as contemplated by the Court’s Order of January 24, 2017 (D.I.
`
`396). We have, however, adjusted our dates to allow Bosch four weeks to respond to the fee
`
`application, as it requests.
`
`C.
`
`Costco’s discovery limits are appropriate at least in view of the Court’s findings as
`
`to BLLC’s history of dilatoriness, BLLC’s willful disobedience of the Court’s document
`
`production Order of December 22, 2016, BLLC’s willful failure to exercise the control it had over
`
`the responsive documents held at BGmbH, and the resulting prejudice to Costco (“Costco was
`
`deprived of the opportunity to develop its defenses during fact discovery within the necessary
`
`context of full production of responsive documents”) (D.I. 395 at 8-10). Moreover, the Court held
`
`that “Costco is entitled to a full and fair production of all non-privileged, responsive documents as
`
`well as a full and fair opportunity to develop its defenses with an understanding of the full scope
`
`of these materials” (Id. at 8-9). But the Court also expressed that it “has some doubts about the
`
`completeness of BLLC’s production,” notwithstanding the Bosch parties’ representation “that they
`
`have now produced ‘all of the required documents’ and, thus have remedied any problems that
`
`may have arisen earlier in the case” (Id. at 10).
`
`So that Costco is reasonably able now to ensure “the completeness of BLLC’s production,”
`
`remedy the problems that BLLC has created, and have a full and fair opportunity to develop its
`
`defenses with an understanding of the full scope of proper discovery, Costco submits that it needs
`
`the discovery it seeks.
`
`- 3 -
`
`
`
`Case 1:12-cv-00574-LPS Document 400 Filed 02/22/17 Page 4 of 4 PageID #: 13253
`
`OF COUNSEL:
`
`Mark A. Hannemann
`SHEARMAN & STERLING LLP
`599 Lexington Avenue
`New York, NY 10022
`(212) 848-4000
`
`Rose Cordero Prey
`Ksenia Takhistova
`ANDREWS KURTH KENYON LLP
`One Broadway
`New York, NY 10004
`(212) 425-7200
`
`OF COUNSEL:
`
`Robert J. Kenney
`John D. V. Ferman
`BIRCH, STEWART,
`KOLASCH & BIRCH, LLP
`8110 Gatehouse Road, Suite 100 East
`Falls Church, VA 22040-0747
`(703) 205-8000
`
`OF COUNSEL:
`
`James W. Dabney
`Diane E. Lifton
`James R. Klaiber
`Richard M. Koehl
`Stefanie M. Lopatkin
`HUGHES HUBBARD & REED LLP
`One Battery Park Plaza
`New York, NY 10004-1482
`(212) 837-6000
`
`February 22, 2017
`1246286 / 39026
`
`POTTER ANDERSON & CORROON LLP
`
`/s/ David E. Moore
`David E. Moore (#3983)
`Bindu A. Palapura (#5370)
`Hercules Plaza, 6th Floor
`1313 North Market Street
`Wilmington, DE 19801
`(302) 984-6000
`dmoore@potteranderson.com
`bpalapura@potteranderson.com
`Attorneys for Robert Bosch LLC and
`Third Party Defendant Robert Bosch GmbH
`
`O’KELLY ERNST & BIELLI, LLC
`
`/s/ Daniel P. Murray
`Sean T. O’Kelly (#4349)
`Daniel P. Murray (#5785)
`901 N. Market Street, Suite 1000
`Wilmington, DE 19801
`(302) 778-4000
`sokelly@oeblegal.com
`dmurray@oeblegal.com
`Attorneys for Alberee Products, Inc. d/b/a Saver
`Automotive Products, Inc., API Korea Co., Ltd.
`and Saver Automotive Products, Inc.
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`/s/ Mary B. Graham
`Mary B. Graham (#2256)
`Anthony D. Raucci (#5948)
`1201 N. Market Street
`P.O. Box 1347
`Wilmington, DE 19899-1347
`(302) 658-9200
`mgraham@mnat.com
`araucci@mnat.com
`Attorneys for Costco Wholesale Corporation
`
`- 4 -
`
`
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