`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`UNILOC USA, INC., et al.,
`
`Plaintiffs,
`
`
`v.
`
`
`
`AVG TECHNOLOGIES USA, INC.,
`BITDEFENDER LLC,
`UBISOFT, INC.,
`KASPERSKY LAB, INC.,
`SQUARE ENIX, INC.,
`
`Defendants.
`
`
`UNILOC USA, INC., et al.,
`
`Plaintiffs,
`
`
`v.
`
`
`
`ADP, LLC,
`BIG FISH GAMES, INC.,
`
`Defendants.
`
`
`
`§
`§
`§ Case No. 2:16-cv-00393-RWS
`§
`
`LEAD CASE
`§
`§
`§ Case No. 2:16-cv-00394-RWS
`§ Case No. 2:16-cv-00397-RWS
`§ Case No. 2:16-cv-00871-RWS
`§ Case No. 2:16-cv-00872-RWS
`
`§
`§
`§ Case No. 2:16-cv-00741-RWS
`§
`
`LEAD CASE
`§
`§
`§ Case No. 2:16-cv-00858-RWS
`
`PLAINTIFFS OPPOSITION TO DEFENDANTS’ EMERGENCY MOTION
`FOR PROTECTIVE ORDER TO PROHIBIT THE SEPTEMBER 13, 2017
`DEPOSITIONS OF MESSRS. COX AND MCGARVEY, AND IBM
`
`
`
`
`Defendants’ object to today’s depositions of IBM employee-inventors David Cox and
`
`John McGarvey on the grounds of insufficient notice. The history of the noticing of these
`
`depositions contradicts Defendants’ argument. Defendants themselves issued the original
`
`subpoenas noticing their intent to take the depositions of all four of the inventors of the patents-
`
`in-suit in July, 2017. Pursuant thereto, the depositions of two of the inventors, David Kaminsky
`
`and David Lindquist, were scheduled to and did take place on August 29-30, 2017.
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`
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`2786828.v1
`
`
`
`Case 2:16-cv-00741-RWS Document 258 Filed 09/13/17 Page 2 of 3 PageID #: 4564
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`
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`Thereafter, the depositions of Messrs. Cox and McGarvey were previously scheduled, by
`
`agreement of Defendants and IBM’s counsel, to take place on September 6 and 7, 2017. See
`
`Motion at 2 (“Working with the Inventors’ counsel, depositions of the Inventors were a
`
`scheduled for September 6 and 7, 2017.”). Accordingly, September 6 and 7 were convenient
`
`dates for Defendants’ counsel (and the witnesses and IBM) to take the depositions noticed for
`
`today. The depositions did not take place on September 6-7, however, because Defendants’
`
`counsel abruptly withdrew the subpoena without prior notice to counsel for Uniloc on September
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`4, 2017 which was Labor Day. See Ex. 1 hereto. Counsel for Uniloc responded that same day
`
`and indicated that Uniloc intended to proceed with the depositions as scheduled. See Ex. 2
`
`hereto.
`
`
`
`On September 5, as a result of Defendants’ counsel withdrawing the subpoenas the
`
`previous day, Uniloc served re-notices of the depositions of Messrs. McGarvey and Cox for
`
`September 7. See Defs.’ Exs. A, B. These are the dates agreed to between IBM’s counsel and
`
`Defendants’ counsel as being convenient for all concerned. Nonetheless, as Defendants’ had
`
`withdrawn the subpoenas for September 6-7, IBM’s counsel had previously released the
`
`witnesses and September 7 was no longer convenient for the witnesses. As a result, at the
`
`request of IBM’s counsel, Uniloc issued new notices on September 6, scheduling the depositions
`
`of Messrs. McGarvey and Cox for today. See Defs.’ Ex. E.
`
`
`
`In view of the foregoing, the depositions noticed for today should be permitted to proceed
`
`at the next earliest convenient date. September 6-7 were previously agreed to as convenient
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`dates for the parties and these witnesses. The only reason that prevented the depositions from
`
`being taken on those dates was Defendants’ abrupt withdrawal of the subpoenas.
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`2786828.v1
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`
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`Case 2:16-cv-00741-RWS Document 258 Filed 09/13/17 Page 3 of 3 PageID #: 4565
`
`Uniloc’s counsel has already traveled to Raleigh, North Carolina and the deposition of
`
`Mr. McGarvey had already commenced with counsel for Defendants also attending in person.
`
`Finally, third-party IBM is not objecting to these depositions.
`
`
`Date: September 13, 2017
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`/s/ Kevin Gannon
`Paul J. Hayes
`Kevin Gannon
`James J. Foster
`Prince Lobel Tye LLP
`One International Place - Suite 3700
`Boston, MA 02110
`Tel: 617-456-8000
`Email: phayes@princelobel.com
`Email: kgannon@princelobel.com
`Email: jfoster@princelobel.com
`
`Edward R. Nelson III
`ed@nelbum.com
`Texas State Bar No. 00797142
`Anthony M. Vecchione
`anthony@nelbum.com
`Texas State Bar No. 24061270
`NELSON BUMGARDNER PC
`3131 West 7th Street, Suite 300
`Fort Worth, Texas 76107
`Phone: (817) 377-9111
`
`ATTORNEYS FOR THE PLAINTIFFS
`
`
`CERTIFICATE OF SERVICE
`
`
`
`I certify that all counsel of record who have consented to electronic service are being
`served with a copy of this document via the Court’s CM/ECF system per Local Rule CV-5(a)(3)
`on September 13, 2017.
`
`
`/s/ Kevin Gannon
`
`
`
`
`
`
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`
`2786828.v1
`
`
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